Federal Criminal Law Opinions

William P. Dimitrouleas, Judge.

[Editor's note: Affirmed in part, reversed in part 21 Fla. L. Weekly Fed. C2058a.]

ORDER GRANTING THIRD PARTY DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Third-Party Defendants, De Vries Scheepsbouw B.V., De Voogt Naval Architects B.V. and Feadship America, Inc.’s Motion for Summary Judgment [DE 251]. The Court has carefully considered the Motion [DE 251], Defendants’ Statement of Material Facts [DE 252], Third-Party Plaintiffs’ Response in Opposition [DE 279], Third-Party Plaintiffs’ Response in Opposition to Third-Party Defendants’ Statement of Material Facts [DE 278], Third-Party Defendant’s Reply [DE 282], the Parties’ attached affidavits and exhibits, and is otherwise fully advised in the premises.

I. BACKGROUND
What remains of this case is a third-party claim for indemnity, equitable subrogation and contribution against the Third-Party Defendants. On October 27, 2006 the Plaintiff, Jameson Cooper (“Cooper”), filed the underlying claim in this case against the various Defendants for General Maritime Unseaworthiness and/or Jones Act Negligence [DE 1]. The initial Complaint was Amended on March 14, 2007 [DE 30]. According to the allegations of the Amended Complaint, on or about July 28 or 29, 2005 Cooper suffered extensive injuries when a defective foodlift fell on his leg while he was serving as captain of the M/Y Meduse. On July 5, 2007 the Defendants filed a Third-Party Complaint against the Third-Party Defendants claiming contribution, indemnity and equitable subrogation [DE 66]. The Defendants/Third-Party Plaintiffs settled their claims against Cooper and now seek indemnity, equitable subrogation and/or contribution for the sums paid to Cooper. On November 30, 2007 the Plaintiff and Defendants filed their Joint Stipulation for Dismissal of Only Plaintiff’s Claims with Prejudice [DE 258]. On December 3, 2007 the Court approved the Joint Stipulation and dismissed the original Amended Complaint [DE 262]. On January 17, 2008 the Third-Party Plaintiffs filed their Amended and Supplemental Third-Party Complaint [DE 274]. These are the only remaining claims in this action.

Cooper is a citizen of the United Kingdom. Prior to 2003, Cooper was a permanent resident of the state of Florida but is now a permanent resident of the state of Maryland. Third-Party Plaintiff M/Y Meduse is a 198 foot Feadship motor yacht registered in the Cayman Islands with Official Number 729007. Third-Party Plaintiff MeridianYachts, Ltd. (“Meridian”) is a business entity organized under the law of the British Virgin Islands and is the original purchaser and current owner of the M/Y Meduse. Third-Party Plaintiff Vulcan, Inc. (“Vulcan”) is incorporated and has its principal place of business in Washington state. Third-Party Plaintiff Vulcan Maritime Ltd. (“Vulcan Maritime”) is a business entity organized under the laws of the British Virgin Islands. At the time of the accident, Vulcan Maritime was the Plaintiff’s employer. Third-Party Defendant De Vries Scheepsbouw B.V. (“De Vries”) is a foreign corporation with its principal place of business in the Netherlands. Third-Party Defendant De Voogt Naval Architects B.V. (“De Voogt”) is a foreign corporation with its principal place of business in the Netherlands. Third-Party Defendant Feadship America, Inc. (“Feadship America”) is a Florida corporation, with its principal place of business in Broward County, Florida. Third-Party Plaintiffs allege that De Vries, De Voogt and Feadship America operate through a joint venture called Feadship who designed, manufactured, marketed and sold the M/Y Meduse. Third-Party Plaintiffs argue that Cooper’s injuries were caused by the Third-Party Defendants’ defective design of the foodlift and that the Third-Party Defendants had a duty to warn “foreseeable users of the foodlift when the foodlift is inherently dangerous or has dangerous propensities.”

On January 31, 1994 Third-Party Plaintiffs bought the M/Y Meduse from the Third-Party Defendants pursuant to a contract entitled “Shipbuilding Agreement,” (“Agreement”) which was executed by Meridian as buyer, and De Vries as builder.1 Article 13 of the Agreement provides: “[t]his Agreement, and all disputes arising out of or in connection with it, shall be construed in accordance with and shall be governed by Dutch law.” Article 10 of the Agreement further states:

After delivery of the Yacht by the Builder and acceptance by the Owner, the Builder shall be free from all and any liability for same, whatever defects or deficiencies there may be, except for his liability under this Article 10.

The Builder undertakes to promptly repair or replace such parts of the Yacht as might appear to be defective or deficient owing to bad construction, bad workmanship or the use of bad materials, excluding defects and deficiencies in goods supplied by the Owner, within a warranty period of twelve (12) months from the date of delivery and acceptance of the Yacht, provided reasonable and timely notice thereof,. . .

Apart from its obligation to repair or replace a defective or deficient part or to pay the cost thereof under this warranty, the Builder shall have no liability whatsoever for any loss or damage directly arising from the defectiveness or deficiency of parts or for any cost or expense incurred in connection therewith, except if resulting from intentional conduct or gross negligence of the Builder or his servants. Liability of the Builder for loss of business, loss of profits, consequential damages or other (indirect) damage, however, is always excluded, as well as liability for any minor deviation in the agreed approximate dimensions and characteristics as described in Article 1.

This warranty does not apply to, and no liability whatsoever will rest upon the Builder in respect of, any equipment or machinery which is installed in the Yacht, including the engines, which is warranted by the manufacturer of such equipment or machinery against defects in materials and workmanship, provided that such warranty is fully assignable to the Owner. The Builder will do its best to cause manufacturers to provide a warranty of at least twelve (12) months duration. The Builder shall assign all warranties of any equipment or machinery manufacturer to the Owner upon the Delivery Date. Notwithstanding the foregoing, the Builder fully warrants the proper installation of any such equipment and machinery.

Neither side disputes that under Dutch law this limitation of liability provision is fully enforceable. Dutch law also has a ten (10) year statute of repose that would completely bar the Third-Party Plaintiffs’ claim.

II. DISCUSSION
In their Motion for Summary Judgment, the Third-Party Defendants argue that they are entitled to Judgment as a matter of law because under Dutch law, which Third-Party Defendants argue applies here, the Third-Party Plaintiffs’ cause of action is barred. Third-Party Defendants argue that the Agreement contains a choice-of-law clause that requires the application of Dutch law, and that even if no such choice-of-law provision existed that Dutch law would still apply under traditional maritime choice-of-law principles. In response, Third-Party Plaintiffs do not argue that their claims would survive the application of Dutch law, rather they argue that under the facts and circumstances of the instant case, Dutch law does not apply. They argue that Dutch law does not govern because the cause of action at issue does not arise out of and is not in connection with the Agreement and therefore the choice-of-law provision is not triggered. Third-Party Plaintiffs further argue that the Agreement cannot bind those Third-Party Plaintiffs who were non-signatories to the Agreement. Additionally, they argue that under traditional choice-oflaw principles using the Lauritzen factors, the general maritime law of the United States should apply. The Court will address each argument in turn.

A. Summary Judgment Standard
The Court may grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party’s case. Id. at 325.

After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electronic Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). According to the plain language of Federal Rule of Civil Procedure 56(e), the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleadings,” but instead must come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587.

Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the nonmoving party “is merely colorable, or is not significantly probative, then summary judgment may be granted.” Anderson, 477 U.S. 242, 249-50.

B. Dutch Law Applies At Least To The

Signatories To The Agreement
“[C]hoice-of-law clauses ‘are presumptively valid where the underlying transaction is fundamentally international in character.’ ” Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1295 (11th Cir. 1998) (quoting Roby v. Corp. of Lloyd’s, 996 F.2d 1353, 1362 (2d Cir. 1993)). Choice-of-law clauses are unreasonable and unenforceable only when:

(1) their formation was induced by fraud or overreaching; (2) the plaintiff effectively would be deprived of its day in court because of the inconvenience or unfairness of the chosen forum; (3) the fundamental unfairness of the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the provisions would contravene a strong public policy.

Id. at 1292 (citing M/S/ Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15-18 (1972)).

Third-Party Plaintiffs assert that the choice-of-law clause does not apply because they do not attempt to state any claims arising under the Agreement.2 Rather, Third-Party Plaintiffs argue that because their claims arise out of general maritime law rather than out of the Agreement itself their claims fall outside the scope of the choice-of-law provision. The Court finds this argument unpersuasive. As the Third-Party Defendants point out, the claims at issue here against the Third-Party Defendants are for defective construction of the foodlift, that was allegedly the proximate cause of the Plaintiff’s injuries. The construction of the ship, including the foodlift, is precisely what the Agreement governs. Accordingly, the Court finds that the Third-Party Plaintiff’s claims arise out of or in connection with the Agreement and are therefore covered by the Agreement’s choice-of-law clause. Under Dutch law, therefore, the Third-Party Plaintiffs’ claims are doubly barred. The Agreement’s limitation of liability clause in Article 10 of the Agreement is enforceable, and Dutch law’s ten (10) year statute of repose applies to bar the Third-Party Plaintiffs’ claims. Accordingly, the third-party claims against the signatories to the Agreement must be dismissed.

A harder question concerns whether the parties who were non-signatories to the Agreement can nonetheless be bound by the terms of the Agreement, including the choice-of-law clause. While the Court notes that under certain circumstances closely related entities may be bound by the terms of a contract, despite the fact that they were not signatories to that contract, see Lipcon, 148 F.3d at 1299 (“In order to bind a non-party to a forum selection clause, the party must be ‘closely related’ to the dispute such that it becomes ‘foreseeable’ that it will be bound.’ ”), it is not necessary to determine whether the non-signatories were closely related because Dutch law would apply notwithstanding the choice-of-law clause at issue in this case.

C. Even If Dutch Law Were Not Expressly

Contracted For, It Would Nonetheless Apply Under

The Maritime Choice Of Law Analysis
The Supreme Court has set out eight factors that should be considered in determining whether the Jones Act or the general maritime law of the United States should be applied: (1) the place of the wrongful act; (2) the flag under which the ship sails; (3) the allegiance or domicile of the injured party; (4) the allegiance of the defendant shipowner; (5) the place of the contract between the injured party and the shipowner; (6) the accessibility of a foreign forum; (7) the law of the forum; and (8) the shipowner’s base of operations. See Lauritzen v. Larsen, 345 U.S. 571, 583-591 (1953); Helenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309 (1970). These are not exhaustive. Id. Although the Supreme Court in Lauritzen initially created this framework to determine whether the Jones Act applied to seamen’s claims, in Romero v. Int’l Terminal Operating Co., the Court made clear that the Lauritzen test applied beyond Jones Act cases to cases involving personal injury claims brought under general maritime law. 358 U.S. 354, 382 (1959). Accordingly, the Court finds that the Lauritzen analysis is appropriate under the facts and circumstances of this case.3

In applying the Lauritzen factors to the facts and circumstances of any particular case, court have altered them to emphasize the most relevant factors and discount those that are either not applicable or simply deserving of less weight. In Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co. Ltd., the court emphasized the importance of the place of the wrong. 426 F.3d 580, 588 (2d Cir. 2005) (“Ultimately, it is the place of the alleged wrongful act that tips the scale in favor of Korean law, for Korea, with its extensive shipbuilding business, possesses the greatest interest and responsibility in regulating the industry.”). Rationis is especially on point in this instance because the case involved a third-party claim against a shipyard for defective construction of the vessel. The case, therefore, like the instant case, did not present the traditional admiralty tort situation of seaman vs. shipowner.

The Court agrees with the Third-Party Defendants that the balance of the relevant interests in this case point in favor of Dutch law. In this case the shipyard where the M/Y Meduse was constructed is in the Netherlands and the alleged wrongful act occurred in the Netherlands, where the vessel was designed and built. Several factors point neither to Dutch law nor general maritime law as the vessel is registered in the Cayman Islands and the owner of the vessel is a British Virgin Islands corporation. The factors that point in favor of the application of the general maritime law of the United States are balanced out and ultimately outweighed by the Dutch interests in this case. The only two factors that point to the United States are the domicile of the injured party and the law of the forum. However, whatever weight must be given to the fact that the injured party and one of the Third-Party Plaintiffs (Vulcan) are domiciliaries of the United States is balanced out by the fact that the Defendants in this action (with the exception of Feadship America) are domiciliaries of Holland.4 As to the law of the Forum, the Eleventh Circuit has held that the law of the forum is to be given relatively little weight in this analysis. See Siglas v. Lido Maritime, Inc., 776 F.2d 1512, 1517 (11th Cir. 1985). As was the situation in Rationis, the Court finds that the most relevant factors are the place of the wrongful act and the domicile of the Parties. Because the domiciles of the Parties are split between the United States, the Netherlands, and elsewhere the Court finds that the place of the alleged wrongful act tips the scale in favor of Dutch law. As the court in Rationis pointed out, the Netherlands has a strong interest in regulating its shipbuilding industry, which outweighs any remaining interest in this case. Rationis, 426 F.3d at 588. The Court finds both the reasoning and result of Rationis to be persuasive. In following Rationis the Court finds that Dutch law must apply to the instant case and as such, the ten (10) year statute of repose applies and the Third-Party Plaintiff’s action must fail.

III. CONCLUSION
Accordingly, for the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. Third-Party Defendant’s Motion for Summary Judgment [DE 251] is hereby GRANTED;

2. The above-styled case is hereby DISMISSED;

3. All pending motions are hereby denied as moot;

4. The clerk shall close this case.

[Editor's note: Affirmed in part, reversed in part 21 Fla. L. Weekly Fed. C2058a.]

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1Vulcan Maritime, Vulcan and the M/Y Meduse are not parties to the Agreement.

2In support of their argument, Third-Party Plaintiffs cite to Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C994a]. However, the choice-of-law clause in Green Leaf is narrower than the choice of law clause at issue in this case. The choice-of-law clause in Green Leaf merely stated: “This Release shall be governed and construed in accordance with the laws of the State of Delaware without giving effect to the choice of law provisions thereof.” Id. at 1298. In contrast with the Green Leaf choice-of-law clause, the instant clause also covers those claims “arising out of or in connection with” the Agreement.

3The Third-Party Plaintiffs argue that the Lauritzen factors are the incorrect framework with which to analyze indemnity, contribution or equitable subrogation claims. In support of their argument Third-Party Plaintiffs cite to non-controlling law from other circuits holding that the correct rule of law is to apply the body of law that governs the indemnitee’s primary liability claim. See Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 235 (5th Cir. 1985); White v. Johns-Manville Corp., 662 F.2d 243, 246 (4th Cir. 1981). Other Circuits, however, have opted instead to apply the Lauritzen balancing analysis. See Rationis Enters., 426 F.3d 580. The Court agrees with the court in In re Kreta Shipping, S.A., 1 F. Supp. 2d 282, 284-85 (S.D.N.Y. 1998), in rejecting the Marathon Pipe Line line of cases in favor of the application of the Lauritzen analysis, which more accurately weighs and balances the interests at play in a given case. This analysis allows for the law of the country with the greatest interest in the dispute to govern. The Court does agree, however, with the court in Kreta that because this is a third-party action for indemnity, the Court should not completely discount the factors pertinent to the underlying primary liability case, such as the domicile of the injured party, although these factors may carry less weight. Id. at 286 n.1. The Court further notes that even though Cooper stated a cause of action under the Jones Act and general maritime law, the Court was never asked to determine in the underlying case which law would be most appropriate.

4The Court in Rationis also discounted the “place of contract” with respect to the injured party’s employment contract because these are tort rather than contract cases. 426 F.3d at 587. The “place of contract” with respect to the Agreement would also be relevant in this case, and appears to be the Netherlands.

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Appeal from the U.S. District Court for the Northern District of Florida (No. 07-00003-CR-4-RH).

(Before ANDERSON, HULL and COX, Circuit Judges.)

(COX, Circuit Judge.) Marcus Jermaine Smith appeals his convictions and sentences for possessing three stolen firearms, 18 U.S.C. § 922(j) (Count 1), and for being a felon in possession of the same three firearms, 18 U.S.C. § 922(g)(1) (Count 2). After pleading guilty to these counts, Smith was sentenced to 120-months’ imprisonment on Count 1 and 90-months’ imprisonment on Count 2, resulting in a total sentence of 210 months. On appeal, Smith argues that his convictions under different subsections of § 922 for possessing the same three firearms violates the Double Jeopardy Clause of the Fifth Amendment. He also argues that his sentences violate the ten-year statutory maximum set forth in 18 U.S.C. § 924(a)(2). We affirm his convictions and sentences.

I. Double Jeopardy
We generally review a double jeopardy challenge de novo. United States v. Thurston, 362 F.3d 1319, 1322 (11th Cir. 2004). But, Smith did not advance a double jeopardy argument before the district court. Therefore, our review is limited to plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). In order to find plain error, “(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” Id. “Moreover, [Fed. R. Crim. P.] 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985)).

Smith argues that his convictions under 18 U.S.C. § 922(j)1 and (g)(1)2 violate the Double Jeopardy Clause because they constitute multiple punishments for the same act. He maintains that he did not waive this argument by pleading guilty. He also argues that the plain language of the statute establishing the punishment for his convictions, 18 U.S.C. § 924(a)(2), does not indicate Congress’s intent to fix separate punishments for violation of multiple § 922 subsections.

The Government argues that Smith has waived his double jeopardy challenge by pleading guilty, and his argument would fail on the merits. The general rule is that a guilty plea waives all non-jurisdictional challenges to a conviction. United States v. Reynolds, 215 F.3d 1210, 1215 (11th Cir. 2000); see United States v. Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 762 (1989) (“[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.”). But, the Supreme Court has recognized a few exceptions to this rule, one of which it announced in Menna v. New York, 423 U.S. 61, 96 S. Ct. 241 (1975). There, the Court held that a defendant does not necessarily waive his double jeopardy challenge by pleading guilty because “[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” Id. at 62, 96 S. Ct. at 242. The Court refused to announce a blanket rule against waiving a double jeopardy challenge, emphasizing instead, “We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” Id. at 62 n.2, 96 S. Ct. at 242 n.2.

Following Menna, we held that a defendant does not waive a double jeopardy challenge when, judged on the basis of the record that existed at the time the guilty plea was entered, the second count is one the government may not constitutionally prosecute. United States v. Kaiser, 893 F.2d 1300, 1302 (11th Cir. 1990). In Kaiser, the defendant pleaded guilty to both tax evasion and the lesser-included offense of filing false tax returns. On appeal, we held that the defendant did not waive his double jeopardy argument by pleading guilty because the state could not lawfully convict and sentence him for both the greater- and lesser-included offenses. Id. at 1303. On the merits of his claim, we vacated the defendant’s conviction and sentence on the lesser included offense and affirmed his conviction and sentence on the greater offense. Id. at 1307.

Conversely, in Dermota v. United States, 895 F.2d 1324, 1325 (11th Cir. 1990), we held that the defendant did waive his double jeopardy challenge by pleading guilty to “an indictment that, on its face, described separate offenses.” We distinguished cases holding that the defendant did not waive a double jeopardy challenge on the basis that “[t]hose cases dealt with constitutionally infirm proceedings, in which the government had no power to prosecute a second charge at all.” Id. at 1326.

So, if the Government here had the power to prosecute Smith for both counts, then he has waived his double jeopardy argument by pleading guilty, as we found in Dermota. On the other hand, if the Government could not have lawfully prosecuted Smith for both counts, Kaiser would control and we could entertain Smith’s double jeopardy argument. To answer this question, we must determine whether his convictions under Counts 1 and 2 violate the Fifth Amendment’s guarantee of protection against multiple punishments for the same offense.3 We hold they do not.

“Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature . . . intended that each violation be a separate offense.” Williams v. Singletary, 78 F.3d 1510, 1512 (11th Cir. 1996) (quoting Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411 (1985)). If the legislature’s intent is unclear, we then apply the “same elements” test established in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). Under this test, “two offenses are different for the purposes of double jeopardy analysis if each ‘requires proof of an additional fact which the other does not.’ ” Cole v. U.S. Dep’t of Agric., 133 F.3d 803, 805 (11th Cir. 1998) (quoting Blockburger, 284 U.S. at 304, 52 S. Ct. at 182).

The legislature’s intent here is unclear. Under 18 U.S.C. § 924(a)(2), “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” Nothing in § 924, nor in § 922, indicates whether Congress intended violations of different subsections of § 922 to constitute separate offenses. In support of his argument that Congress did not intend that each violation be a separate offense, Smith points to the holding in Rollins v. United States, 543 F.2d 574 (5th Cir. 1976).4 The defendant in Rollins was convicted of violating two provisions of 26 U.S.C. § 5861 for possessing an unregistered shotgun, § 5861(d), which did not have an identifiable serial number, § 5861(i). The punishment provision contained a similar statutory maximum provision as 18 U.S.C. § 924(a)(2): “Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both.” 26 U.S.C. § 5871. The court held that the defendant could not be sentenced above the ten-year statutory maximum for possession of the same shotgun that happened to violate two statutory provisions, saying “It is our opinion that such sentencing violates the intent of Congress in setting a maximum penalty of ten years in prison, a $10,000 fine, or both.” Rollins, 543 F. 2d 575. Although instructive in determining Congress’s intent with respect to § 5871, Rollins did not decide Congress’s intent with respect to § 924. Therefore, we apply Blockburger’s “same elements” test.

Under Blockburger, § 922(j) and (g)(1) are separate offenses because “each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304, 52 S. Ct. at 182. Section 922(g)(1) requires the Government to prove that the defendant is a convicted felon. Section 922(j) requires the Government to prove that the firearm forming the basis of the charge is stolen and the defendant knew or had reasonable cause to believe it was stolen. Therefore, these are different offenses.

Two other circuits have reached the same conclusion we do. The Fourth Circuit held “there is no question in this case that Congress has fixed separate punishments for both § 922(g) and § 922(j).” United States v. Moye, 454 F.3d 390, 397 (4th Cir. 2006), cert. denied, 127 S. Ct. 452 (2006). The Eighth Circuit held similarly in Hornbeck v. United States, 503 F.2d 1029 (8th Cir. 1974), saying that “it is clear that completely different elements of proof are required for count three [transportation of stolen firearm, § 922(i)] than are required for counts one and two [felony receipt and transportation of a firearm, § 922(g), (h)].” Id. at 1030. The court explained why Congress would authorize cumulative punishments for similar violations: “Transportation of firearms which a felon knows to have been stolen clearly should be considered more serious than an offense involving transportation, possession, and receipt of firearms which are not stolen.” Id.

Because Counts 1 and 2 involve separate offenses, the Government could lawfully prosecute Smith for both. Consequently, under Dermota, 895 F.2d at 1326, Smith has waived his double jeopardy argument by pleading guilty. Therefore, we find no error in Smith’s conviction and sentence on both counts.

II. Statutory Maximum Sentence
Smith did not raise a statutory maximum argument at his sentencing hearing. Therefore, we review only for plain error. See Aguillard, 217 F.3d at 1320.

Smith argues that his sentence exceeds the statutory maximum under § 924(a)(2), and he is subject only to ten years’ imprisonment for violating two of the § 922 provisions listed in § 924(a)(2). He suggests that, in order to be subject to more than ten years, § 924(a)(2) must specify that the ten year maximum applied to violation of each § 922 provision listed therein. The Government responds that Smith was convicted of two different offenses, each of which is subject to ten years under § 924(a)(2). It also argues that cumulative maximum sentences are permitted.

As discussed above, § 922(j) and (g)(1) are separate offenses for which the Government could lawfully prosecute Smith. Thus, Smith could have been sentenced for both convictions. His 210-month sentence did not exceed the maximum allowed by statute (240 months), and the court may impose maximum sentences consecutively. United States v. Davis, 329 F.3d 1250, 1254 (11th Cir. 2003). Therefore, the district court committed no error in sentencing Smith for violating two subsections of § 922.

III. Conclusion
Smith waived his double jeopardy argument by pleading guilty to two counts for which he may have been lawfully prosecuted. Also, the district court committed no error, much less plain error, in sentencing Smith to consecutive sentences for violating two subsections of § 922. Therefore, we affirm Smith’s convictions and sentences.

AFFIRMED.

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1“It shall be unlawful for any person to receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition, or pledge or accept as security for a loan any stolen firearm or stolen ammunition, which is moving as, which is a part of, which constitutes, or which has been shipped or transported in, interstate or foreign commerce, either before or after it was stolen, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.” 18 U.S.C. § 922(j).

2“It shall be unlawful for any person (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).

3“No person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . .” U.S. Const. Amend. V. See Williams v. Singletary, 78 F.3d 1510, 1512 (11th Cir. 1996) (recognizing the Fifth Amendment guarantees protection against multiple punishments for the same offense).

4In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.

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