UNITED STATES of America, Plaintiff-Appellee v. Geronimo SANCHEZ, Defendant-Appellant
No. 15-41710
United States Court of Appeals, Fifth Circuit.
Filed January 12, 2017
Summary Calendar
John Riley Friesell, Friesell Westerlage, PLLC, Houston, TX, for Defendant-Appellant
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Geronimo Sanchez was convicted of two counts of being a felоn in possession of ammunition committed following a jury trial. He received a sentence of twenty-four months of imprisonment and three years of supervised release on each count, both to be served concurrently, as well as a $100 special assessment on each count (for a total of $200). He timely appealed. Sanchez‘s sole issuе on appeal raises unpreserved Double Jeopardy Clause challenges to his convictions and sentences for two counts of possession of ammunition on thе same date. Finding no plain error, we AFFIRM.
I. Facts
When police officers responded to a crime in progress, they came into contact with Sanchez and another individual. Officеrs put Sanchez in a patrol car and contacted the Bureau of Alcohol, Tobacco, and Firearm (ATF). Sanchez told the ATF agent who responded that there was аmmunition in the hall closet of his apartment. A search of the apartment located a box of ammunition in that hall closet, as well as a single nine millimeter cartridge under the bed. Sanchez‘s possession of all the ammunition found at the apartment was the basis for count one.
A different officer transported Sanchez from the crime scene to thе apartment, and then to the Corpus Christi Police Department and found two cartridges of nine millimeter ammunition under the back seat of the patrol car after Sanchez еxited that were not there before Sanchez was placed into the vehicle. This ammunition matched the ammunition found under the bed but not the ammunition found in the hall closet. Sanchez admitted that the ammunition belonged to him and that it fell out of his pocket. Sanchez‘s possession of this ammunition was the basis for count two.
At trial, Sanchez testified that the ammunition found аt the apartment belonged to his girlfriend‘s children. He did not know how long the ammunition had been in the hall closet; he speculated that it could have been there for a few months or years, but he learned of its existence a few days before his arrest. Sanchez found the two cartridges that were in his pocket on the ground near the back door of the apartment when he was leaving on the
II. Discussion
For the first time on appeal, Sanchez argues thаt his convictions and sentences for two counts of possession of ammunition by a felon on the same date violate the Double Jeopardy Clause. He contends that bеcause the indictment did not charge him with possession of ammunition on separate occasions, his convictions and sentences are multiplicitous.
Sanchez‘s claim that his convictions were multiplicitous had to have been raised in a pretrial motion and cannot be raised for the first time on appeal. United States v. Njoku, 737 F.3d 55, 67 (5th Cir. 2013) (discussing a multiplicitous indictment); United States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001). Because Sanchez did not challenge the indictment in a pretrial motion, he has waived the contention that his convictions are multiplicitous. See Njoku, 737 F.3d at 67; Dixon, 273 F.3d at 642.
However, unpreserved challenges to multiplicitous sentences can be raised for the first time on appeal and are reviewed for plain error. Njoku, 737 F.3d at 67; Dixon, 273 F.3d at 642. To show plain error, Sanchez must show that the error was clear or obvious and affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion to correct the error but only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
We have held that that multiple convictions and sentences1 for violations of
Our previous decisions rested on the policy underlying the statute: “The evil Congress sought to suppress by section
If the record establishes that the defendant obtained the firearm and ammunition on different occasions, hоwever, then the convictions and sentences do not violate the Double Jeopardy Clause. See United States v. Everett, 237 F.3d 631, 2000 WL 1701776, at *6 (5th Cir. 2000) (unpublished) (challenging two counts of being a felon in possession of а firearm in violation of
The parties do not cite and we have not found a case with facts similar to the one at bar where the defendant‘s оwn testimony implicates possible possession on different occasions. In particular, Sanchez testified that his girlfriend took the ammunition found in the apartment from her children аnd that he did not know how long it had been in the hall closet. He also testified that he learned of the ammunition in the hall closet a few days earlier. He further testified that he found the ammunition in his pocket just outside of the back door of the apartment on the morning of his arrest and that it fell out of his pocket while he was in the patrol vehicle. These faсts do not fit the existing relevant cases such that the law is unclear whether a permissible inference of separate possessions can be drawn from the facts here.
Given this lack of clarity, it was not plain error for the district court to impose two sentences in this case. See United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009) (concluding that the court did not need to decide whether there was an error because the lack of clarity in the law rendered any such error less than “plain“); see also United States v. Fields, 777 F.3d 799, 805 (5th Cir. 2015) (“[I]f the law is unsettled within the circuit, any error cannot be plain.“). Aсcordingly, we conclude that Sanchez has failed to establish the second prong necessary to prevail under plain error review such that we need not address the оther prongs.
AFFIRMED.