472 F. App'x 307 | 5th Cir. | 2012
Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. PER CURIAM: [*]
Benigno Ayala-Juarez (Ayala) appeals the sentence he received after he pleaded guilty to possession of a firearm by a convicted felon and to possession of ammunition by a convicted felon. Each count charged a violation of 18 U.S.C. § 922(g)(1). Ayala argues that under United States v. Berry , 977 F.2d 915, 919-20 (5th Cir. 1992), his conviction and sentence on one of his counts must be vacated because his two convictions and sentences are multiplicitous and violate
Case: 11-41103 Document: 00511907088 Page: 2 Date Filed: 07/02/2012 No. 11-41103 the Double Jeopardy Clause. The government agrees and has filed an Unopposed Motion for Summary Remand in lieu of Filing Appellee’s Brief.
The government’s motion is GRANTED. Ayala’s sentences are VACATED, and the case is REMANDED for dismissal of the multiplicitous count and for resentencing on the count selected by the government. See Berry , 977 F.2d at 919-20; United States v. Osunegbu , 822 F.2d 472, 481 (5th Cir. 1987).
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NOTES
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.