IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-10272 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK ANTONICELLI,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (4:95-CR-143-A) _________________________________________________________________

February 10, 1997 Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

In this appeal, we address whether the Double Jeopardy Clause

prohibits a court from imposing consecutive sentences for two

counts of the same indictment, where one count charges the

defendant with destroying property by means of explosion, and the

other charges the defendant with carrying an explosive during the

commission of a felony.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. In August 1994, the appellant, Frank Antonicelli, used a

blasting cap and a length of detonating cord to destroy an

automobile owned by neighbors of one of his friends. Antonicelli

had obtained the blasting cap and detonating cord from a different

individual, and Antonicelli concedes that he and his friend carried

the cap and cord to the friend’s apartment complex, where they

connected the device to the neighbors’ car. The resulting

explosion also damaged the sidewalk and lawn near the car, and

broke several windows at the apartment complex.

In December 1995, Antonicelli pled guilty to one count of an

indictment alleging a violation of

(i) (maliciously

damaging a vehicle and building used in interstate commerce by

means of fire or an explosive) and to a second count of the same

indictment alleging a violation

(h)(2) (carrying an

explosive during the commission of a felony). Antonicelli objected

to the consecutive sentencing recommended in the Presentence Report

on double jeopardy grounds, but the court overruled his objection

and sentenced him to 27 months imprisonment for the § 844(i)

violation and 5 years imprisonment for the § 844(h)(2) violation,

to be served consecutively. Antonicelli now appeals.

Antonicelli argues that he has been subjected to double

punishments for the same acts in violation of the Double Jeopardy

Clause of the Constitution. The Supreme Court addressed the double

-2- jeopardy issues raised by multiple punishments in Missouri v.

Hunter, concluding that “[w]ith respect to cumulative sentences

imposed in a single trial, the Double Jeopardy Clause does no more

than prevent the sentencing court from prescribing greater

punishment than the legislature intended.”

,

(1983). The Court held that the reviewing court’s

sole task is to determine whether the legislature specifically

authorized cumulative punishment.

,

.

Congress expressly authorized cumulative punishment of persons

convicted under

(h)(2), which proscribes carrying an

explosive device during the commission of a federal felony. That

statute provides, in relevant part:

Whoever . . . carries an explosive during the commission of any felony which may be prosecuted in a court of the United States, including a felony which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 5 years but not more than 15 years . . . Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the felony in which the explosive device was used or carried.

(h)(2) (emphasis added). Congress clearly

intended--indeed, required--that persons like Antonicelli receive

consecutive sentences. Antonicelli’s sentences therefore do not

-3- violate the Double Jeopardy Clause of the Constitution and are

therefore

A F F I R M E D.

-4-