                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4071


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

ANDRE GANEOUS,

                 Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:09-cr-00056-IMK-JSK-1)


Submitted:   October 22, 2010              Decided:   November 9, 2010


Before DUNCAN, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Martin P. Sheehan, SHEEHAN & NUGENT, PLLC, Wheeling, West
Virginia, for Appellant. Betsy C. Jividen, United States
Attorney, David E. Godwin, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Andre     Ganeous      was    convicted         by     a   federal     jury    of

maiming, in violation of 18 U.S.C. § 114 (2006), and assault

with   a   deadly    weapon,    in    violation        of     18    U.S.C.    § 113(a)(3)

(2006).     The district court sentenced Ganeous to sixty-three

months of imprisonment for each count, to run concurrently, and

Ganeous now appeals.         Finding no error, we affirm.

            Ganeous       argues     that       his    convictions          violated      the

prohibition against double jeopardy because the indictment was

multiplicitous,      as     assault      with    a    deadly       weapon    is   a    lesser

included offense of maiming.                    As Ganeous did not raise this

issue in the district court, it is reviewed for plain error.

See United States v. White, 405 F.3d 208, 215 (4th Cir. 2005).

To   establish      plain    error,      Ganeous       must      show    that     an    error

occurred, that the error was plain, and that the error affected

his substantial rights.            See United States v. Olano, 507 U.S.

725, 732 (1993).       Even if Ganeous makes this three-part showing,

we will not exercise our discretion to correct the error “unless

the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.”                     Id. (internal quotation

marks and citation omitted).

            The     Double    Jeopardy      Clause       of      the    Fifth     Amendment

protects criminal defendants from repeated prosecutions for the

same offense, Oregon v. Kennedy, 456 U.S. 667, 671 (1982), and

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from     multiple       punishments             for    the     same    offense.              United

States v. Martin, 523 F.3d 281, 290 (4th Cir.), cert. denied,

129 S. Ct. 238 (2008).                   When an indictment has charged multiple

statutory      offenses       based        on    the    same     conduct,       whether          those

charges constitute the same offense is determined by reference

to whether each charged offense requires proof of some fact that

the other does not require.                     United States v. Goodine, 400 F.3d

202, 207 (4th Cir. 2005); see also United States v. Luskin, 926

F.2d 372, 377 (4th Cir. 1991) (offenses are not identical as

long as each “requires proof of an additional fact [which] the

other does not”) (quoting Blockburger v. United States, 284 U.S.

299, 304 (1932)).             A defendant may be convicted of two separate

offenses arising from a single act if each charge requires proof

of a fact not essential to the other.                           United States v. Dixon,

509 U.S. 688, 702-12 (1993).

               In addition, “two different statutes define the same

offense [when] one is a lesser included offense of the other.”

Rutledge v. United States, 517 U.S. 292, 297 (1996) (internal

quotation      marks        omitted).            For    an   offense       to    be     a    lesser

included offense, that offense must require no proof beyond that

necessary for a conviction on the greater offense.                                See Illinois

v.   Vitale,      447       U.S.    410,        417    (1980).        We   have        thoroughly

reviewed    the     record         and    conclude      that     assault        with    a    deadly

weapon    is    not     a    lesser       included      offense       of   maiming          as   each

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offense requires an element of proof that the other does not.

Therefore, Ganeous was not convicted of multiple counts charging

the   same     offense   and   his   double    jeopardy     rights     were   not

violated by the convictions.

             Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately     presented    in   the    materials

before   the    court    and   argument    would   not    aid   the   decisional

process.

                                                                        AFFIRMED




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