653 F. App'x 492
9th Cir.2016Background
- Perez appeals from district court's denial of suppression, convictions, and sentence; this court affirms in part and vacates/remands in part.
- District court denied suppression of evidence and statements from a search of the structure where Perez was located, based on probable cause that the structure was Perez's residence.
- Conviction for felon in possession of a firearm under 18 U.S.C. § 922(g)(1) rests on constructive possession; firearm found in Perez's residence with matching ammunition markings.
- Counts 2 and 3 are multiplicious under § 922(g)(1) because the jury did not separately determine separateness of acquisition/possession; remand to vacate multiplicity.
- ACCA sentence potentially invalid after Johnson v. United States; remand for resentencing.
- Overall, sentence vacated/remanded while some rulings affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause to treat structure as residence | Perez | Government | Affirmed denial of suppression |
| Sufficiency of constructive-possession evidence | Perez | Perez | Sufficient for § 922(g)(1) |
| Multiplicitous convictions for firearm and ammunition | Perez | Government | Plain error; vacate/remand for dispositional choice |
| ACCA sentence post Johnson residual clause | Perez | Government | Remand for resentencing in light of Johnson |
Key Cases Cited
- United States v. Harper, 928 F.2d 894 (9th Cir. 1991) (probable cause standard for residence arrest warrant)
- United States v. Howard, 447 F.3d 1257 (9th Cir. 2006) (parole-search condition requires residence probable cause)
- United States v. Vasquez, 654 F.3d 880 (9th Cir. 2011) (constructive possession inference)
- United States v. Zalapa, 509 F.3d 1060 (9th Cir. 2007) (vacate multiplicitous conviction on separateness)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (residual clause unconstitutionally vague; remand for resentencing)
- United States v. Wiga, 662 F.2d 1325 (9th Cir. 1981) (separateness of acquisition/possession required for multiple counts)
- United States v. Szalkiewicz, 944 F.2d 653 (9th Cir. 1991) (separateness requirement for multiple § 922(g)(1) counts)
- United States v. Ankeny, 502 F.3d 829 (9th Cir. 2007) (separateness instruction standard)