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Multiplicitous firearm conviction reversed

By: dmc-admin//December 3, 2007//

Multiplicitous firearm conviction reversed

By: dmc-admin//December 3, 2007//

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The $100 special assessment for each conviction is sufficiently serious to require reversal of a multiplicitous conviction, the Seventh Circuit held on Nov. 21.

The holding overrules existing Seventh Circuit precedent to the contrary: U.S. v. McCarter, 406 F.3d 460, 464 (7th Cir. 2005); and U.S. v. Baldwin, 414 F.3d 791, 796 (7th Cir.2005).

The court also held two convictions for possessing the same gun violates the Double Jeopardy Clause, and that supervised release is discretionary absent a separate statute making it mandatory.

Jesse James Parker, a convicted felon, purchased an AK-47 through a straw purchaser. After his arrest, he admitted to federal agents that he smoked marijuana regularly at the time of the purchase.

He was charged in federal court with, and convicted of, three counts: aiding and abetting a false statement on a federal firearms form, 18 U.S.C. 922(a)(6); being a felon in possession of a firearm, sec. 922(g)(1); and being an illegal drug user in possession of a firearm, sec. 922(g)(3).

Parker was sentenced to concurrent 27-month prison terms and two years of supervised release; he was also ordered to pay a $100 special assessment for each of the three offenses. In imposing supervised release, the district court said that “a term of supervised release is not only required but also is appropriate in this case.”

Parker filed a timely notice of appeal, but his trial counsel moved to withdraw under Anders v. California, 386 U.S. 738 (1967), because he saw no nonfrivolous basis for appeal. The court appointed new counsel, and appellate counsel appealed.

In a decision by Judge Diane S. Sykes, the Seventh Circuit held that two of the convictions were multiplicitous, and that the district court incorrectly held that supervised release was mandatory. However, because the district court also held that supervised release was “appropriate,” it concluded the error was harmless.

Multiplicity

The court first held that the two firearm possession convictions — one for being a felon in possession and one for being an illegal drug user in possession — are impermissibly multiplicitous, because they arise from a single incident of firearm possession involving the same gun.

Because trial counsel failed to object, the court reviewed for plain error.

The court noted that every circuit that has addressed the issue has unanimously agreed that sec. 922(g) cannot support multiple convictions based on a single firearm possession, because the allowable unit of prosecution is the incident of possession, not the defendant’s membership in a class of persons disqualified from possession.

The court agreed with the other circuits that, while the government may pursue multiple theories of guilt at trial, only one conviction may result for a single incident of possession, even if the defendant belongs to more than one disqualified class.

Citing McCarter, the government argued that, despite the error, both convictions could stand, because a $100 special assessment is not serious enough to constitute a miscarriage of justice, and therefore, cannot constitute plain error.

However, the court found that McCarter is inconsistent with binding U.S. Supreme Court precedent, and must be overruled.

In Rutledge v. U.S., 517 U.S. 292, 302 (1996), the court held, “the collateral consequences of a second conviction make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence.”

The appropriate standard of review was not at issue in Rutledge, but, like Parker, the defendant in Rutledge had failed to object at sentencing. Accordingly, the court concluded that McCarter must be overruled, and directed the district court on remand to either vacate one of the two sec. 922(g) convictions, or merge them into one.

Supervised Release

The court next held that, in light of the holding in U.S. Booker, 543 U.S. 220 (2005), that the sentencing guidelines are advisory, rather than mandatory, the decision whether to impose supervised release is within the district court’s discretion, as well as the term of imprisonment.

The court noted that, in U.S. v. Larson, 417 F.3d 741 (7th Cir. 2005), it had concluded that Booker rendered not just imprisonment, but supervised release, discretionary, unless a separate provision makes it mandatory. However, because the district court stated that supervised release was not just mandatory, but also appropriate, the court of appeals held the error harmless and affirmed the two-year term of supervised release.

Analysis

For defense attorneys considering whether to appeal convictions, even when the sentences on the convictions are concurrent, the court’s opinion is a welcome one.

Earlier this year, the court issued a decision in a case involving a defendant who was convicted of more than a dozen separate counts, but given concurrent sentences on them. U.S. v. Spirk, 503 F.3d 619 (7th Cir. 2007). His attorney appealed, claiming the evidence was insufficient to support one of the convictions, and the Seventh Circuit agreed. Id., at 623.

In doing so, however, the court criticized the attorney for making the appeal, because only the $100 special assessment was at stake.

Writing for the court, Judge Frank H. Easterbrook opined, “Perhaps the Criminal Justice Act, 18 U.S.C. § 3006A , should be amended to provide that the public fisc will not reimburse more than $100 for an appeal to contest a concurrent sentence, and then only if the special assessment has been satisfied. Solvent defendants would not spend more than $100 to save $100, and the sixth amendment does not entitle insolvent defendants to more legal assistance than a wealthy defendant would buy in the market. But, as things stand, Spirk has enjoyed (at public expense) the assistance of one of the nation's top law firms to make this pointless argument, which the appellate briefs have debated with vigor. The prosecutor's brief runs 49 pages. So we must soldier on.” Id., at 622.

In contrast, the opinion in the case at bar addresses the defendant’s appeal, despite the minimal stakes, without questioning its legitimacy. So, when clients want to appeal a meritorious issue, however little is at stake, defense attorneys should feel free to do so, without fearing criticism (or worse, fee reduction).

The court’s discussion of whether supervised release is mandatory or discretionary is also important, even though the issue has been addressed before, in U.S. v. Larson, 417 F.3d 741 (7th Cir. 2005).

In the case at bar, the issue was squarely presented; in Larson, the actual issue was whether the appeal was moot, where the defendant had already completed his imprisonment, and was on supervised release.

Holding the appeal was not moot, the extent of the court’s discu
ssion of U.S. v. Booker, 543 U.S. 220 (2005), was as follows: “With irrelevant exceptions, the statutory scheme makes the imposition of supervised release discretionary, 18 U.S.C. § 3583(a), and the sentencing guidelines are now merely advisory. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. Because the district court has the discretion to shorten Larson's supervised release, the case is not moot.” Id., at 474.

The statement is easily overlooked in an opinion that deals primarily with the Speedy Trial Act. Even reading the West headnotes and holdings would not alert a reader to the holding.

By squarely addressing the issue, the court’s opinion thus makes it less likely that it will be ignored in a sentencing that may involve other more significant issues.

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