Separate convictions and consecutive sentences for possession of firearm and possession of ammunition violated Double Jeopardy. United States v. Meza, 2012 WL 5458921 (5th Cir. 2012).
On July 14, 2009, three shotguns and a rifle were stolen from a pawn shop in Wichita Falls, Texas. Based on information gathered during the investigation, the police searched the property of defendant, a convicted felon, and found a Mossberg shotgun in a shed and two boxes of ammunition in the house.
The defendant was charged in a two-count indictment. Count 1 charged him with being a felon in possession of a firearm and Count 2 charged him with being a felon in possession of ammunition. He pled guilty to Count 1, with Count 2 being dismissed, thus capping his maximum sentence at 120 months. The district court rejected the plea agreement and the defendant went to trial, where he was found guilty on both Counts. The district court imposed a sentence of 120 months for each count, to be served consecutively, for an aggregate of 240 months.
On appeal, the defendant argued that the separate sentences for possession of a firearm and possession of ammunition violated the Double Jeopardy Clause. Reviewing for plain error, and citing United States v. Berry, 977 F.2d 915 (5th Cir. 1992) and United States v. Dunford, 148 F.3d 385 (4th Cir. 1998), the Fifth Circuit agreed with the defendant, finding no difference between the facts in Berry and the facts in the present case. “As in Berry, [the defendant] was convicted under §922(g)(1) for simultaneous possession of a firearm and ammunition, both of which were found during the single police search of his property. The indictment alleges that [the defendant] possessed both the firearm and ammunition that day (July 22, 2009).” “[A]bsent an indictment charging [the defendant] with possessing or receiving the firearms and ammunition on separate occasions, and proof and argument supporting the same, his dual convictions and sentences under §922(g)(1) cannot stand under Berry.”
The judgment was affirmed, but the sentence was vacated and remanded “for dismissal of one of the counts of the indictment (at the government’s election), and order resentencing on the count selected by the government.”
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