Seventh Circuit reverses multiplicitous firearm conviction.

• Author: Ziemer, David

Byline: David Ziemer

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...