442 U.S. 114 (1979)
Respondent Batchelder, a previously convicted felon, was found guilty in federal district court of receiving a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. §922(h).1 The district court sentenced him under 18 U.S.C. §924(a) to five years’ imprisonment, the maximum term authorized for violation of §922(h).2
The Court of Appeals for the Seventh Circuit affirmed the conviction but, by a divided vote, remanded for resentencing.3 The majority recognized that respondent had been indicted and convicted under §922(h) and that §924(a) permits five years’ imprisonment for such violations, yet it interpreted the Omnibus Crime Control and Safe Streets Act of 1968 to allow no more than the two-year maximum sentence provided by 18 U.S.C. App. §1202(a) because the substantive elements of §922(h) and §1202(a) are identical as applied to a convicted felon who unlawfully receives a firearm.4 The dissent found no basis in the Omnibus Act or its legislative history for engrafting the penalty provisions of §1202(a) onto §§922(h) and 924(a).5
The Supreme Court granted certiorari in 1979 and reviewed the judgment vacating respondent’s five-year prison sentence.6 The Omnibus Act contains two overlapping provisions in Titles IV and VII that both prohibit convicted felons from receiving firearms but authorize different maximum penalties, with §924(a) permitting up to five years and §1202(a) permitting up to two years.7
Section 922(h) is contained in Title IV of the Omnibus Act and §1202(a) is located in Title VII; the former derived from the Federal Firearms Act of 1938 while the latter was a last-minute floor amendment to the Omnibus Act.
Whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes?8
Each substantive statute, in conjunction with its own sentencing provision, operates independently of the other.9
No. Respondent Batchelder was found guilty of receiving a firearm that had traveled in interstate commerce in violation of 18 U.S.C. §922(h). The district court sentenced him under 18 U.S.C. §924(a) to five years imprisonment. The Omnibus Act contains two overlapping provisions in Titles IV and VII that both prohibit convicted felons from receiving firearms but authorize different maximum penalties. Nothing in the language structure or legislative history of the Omnibus Act suggests that because of this overlap a defendant convicted under §922(h) may be imprisoned for no more than the maximum term specified in §1202(a).
Section 924(a) applies without exception to whoever violates any provision of Title IV and §922(h) is patently such a provision. Section 1202(a) limits its penalty scheme exclusively to convictions obtained under that provision. On their face these statutes establish that §924(a) alone delimits the appropriate punishment for violations of §922(h).10
A defendant convicted under the statute carrying the greater penalty may be sentenced to that greater term even when his conduct also violates the statute authorizing the lesser penalty.11
Whether two overlapping criminal statutes that authorize different maximum penalties for identical conduct are unconstitutionally vague?12
A criminal statute is invalid if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden and vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.13
No. The provisions in issue here unambiguously specify the activity proscribed and the penalties available upon conviction. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized the notice requirements of the Due Process Clause are satisfied.14
Two overlapping criminal statutes that authorize different maximum penalties for identical conduct are not unconstitutionally vague.15
Whether the prosecutor's power to select one of two statutes that are identical except for their penalty provisions implicates due process and equal protection interests in avoiding excessive prosecutorial discretion and in obtaining equal justice?16
When an act violates more than one criminal statute the Government may prosecute under either so long as it does not discriminate against any class of defendants and whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion.17
No. The Court of Appeals acknowledged the settled rule allowing prosecutorial choice yet distinguished overlapping statutes with identical standards of proof from provisions that vary in some particular. Contrary to the Court of Appeals assertions a prosecutor's discretion to choose between §§922(h) and 1202(a) is not unfettered. There is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. The prosecutor may be influenced by the penalties available upon conviction but this fact standing alone does not give rise to a violation of the Equal Protection or Due Process Clause.
Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced.18
The prosecutor's power to select one of two statutes that are identical except for their penalty provisions does not implicate due process and equal protection interests in avoiding excessive prosecutorial discretion and in obtaining equal justice.19
Whether the statutes constitute an impermissible delegation of congressional authority?20
The power that Congress has delegated to prosecutors and judges is no broader than the authority they routinely exercise in enforcing the criminal laws when the provisions plainly demarcate the range of penalties.21
No. Approaching the problem of prosecutorial discretion from a slightly different perspective the Court of Appeals postulated that the statutes might impermissibly delegate to the Executive Branch the Legislature's responsibility to fix criminal penalties. The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts prosecutors and defendants of the permissible punishment alternatives available under each Title Congress has fulfilled its duty.22
The statutes do not constitute an impermissible delegation of congressional authority.23