     Case: 15-41710      Document: 00513833173         Page: 1    Date Filed: 01/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-41710                                FILED
                                  Summary Calendar                       January 12, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

GERONIMO SANCHEZ,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-433-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Geronimo Sanchez was convicted of two counts of being a felon 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 issue on appeal raises unpreserved Double Jeopardy Clause challenges to


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-41710
his convictions and sentences for two counts of possession of ammunition on
the 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. Officers 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 ammunition 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 the
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 exited 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 at 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
morning of his arrest. He admitted that he did not tell the ATF agent about
the ammunition in his pocket.


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       II.     Discussion
       For the first time, on appeal, Sanchez argues that 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 because 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 sentences 1 for violations
of 18 U.S.C. § 922(g)(1) for the simultaneous possession of a firearm and



       1   The Double Jeopardy Clause may be violated even in a case of concurrent sentences.
See Ball v. United States, 470 U.S. 856, 864 (1985); United States v. Ogba, 526 F.3d 214, 237
(5th Cir. 2008). “[S]entences with special assessments imposed for individual counts are not
in fact ‘concurrent,’ no matter how small the special assessments.” Ogba, 526 F.3d at 237;
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                                      No. 15-41710
ammunition violates the Double Jeopardy Clause. See United States v. Meza,
701 F.3d 411, 431–34 (5th Cir. 2012). In Meza, we found a double jeopardy
violation where the defendant was convicted of possession of a firearm that
was found in his shed and possession of two boxes of ammunition that were
found in his house on the same date. Id. at 415, 431–34. Although the firearm
and ammunition were found in two separate locations, the court found that the
defendant’s simultaneous possession of the firearm and ammunition was one
single offense and his two convictions and sentences violated double jeopardy.
Id. at 432–34. We noted that none of the witnesses testified that Meza had
received or possessed the items on different dates, and the indictment had not
alleged that Meza had possessed or received the items on separate occasions.
Id. at 433; see also United States v. Berry, 977 F.2d 915, 919–20 (5th Cir. 1992)
(concluding that a Double Jeopardy Clause violation occurred when the
defendant was convicted of several counts based upon possession of
ammunition and firearms discovered during a single search).
       Our previous decisions rested on the policy underlying the statute: “The
evil Congress sought to suppress by section 922 was the arming of felons; the
section is based on the status of the offender and not the number of guns
possessed.” Berry, 977 F.2d at 919. In other words, Congress did not intend
the simultaneous possession of firearms and ammunition, i.e., “one episode of
possession of firearms and ammunition,” to stand as separate offenses. Id. at
918–19.
       If the record establishes that the defendant obtained the firearm and
ammunition on different occasions, however, then the convictions and


United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir. 1995); Berry, 977 F.2d at 920. Because
Sanchez was ordered to pay a special assessment for each conviction, his sentences are not
truly concurrent for double jeopardy purposes. See Ogba, 526 F.3d at 237; Kimbrough, 69
F.3d at 729; Berry, 977 F.2d at 920.

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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 a firearm in violation
of § 922(g)(1)); United States v. Harper, 802 F.2d 115, 118–19 & n.4 (5th Cir.
1986) (challenging four counts of receiving or possessing firearms previously
transported in interstate commerce, in violation of 18 U.S.C. § 1202(a)(1) as a
double jeopardy violation). In Everett, the police found boxes of ammunition
located in the bottom drawer of the defendant’s chest of drawers on October 30
(count one), and the police had previously found loose ammunition located in
the top drawer of the defendant’s chest of drawers on October 23 (count two).
Everett, 2000 WL 1701776, at *1, *6. The court held under plain error review
that there was no double jeopardy violation because a permissible inference
could be drawn based on trial evidence that the defendant received or obtained
the ammunition on two separate occasions given that the boxes of ammunition
were found in the same chest of drawers that had been searched days after the
first search. Id. at *6–7. In Harper, the court held that there was no double
jeopardy violation because the indictment charged and the evidence
established that each count was based on possession of a different firearm
received and possessed at different times. Harper, 802 F.2d at 118–19 & n.4.
      The parties do not cite and we have not found a case with facts similar
to the one at bar where the defendant’s own testimony implicates possible
possession on different occasions. In particular, Sanchez testified that his
girlfriend took the ammunition found in the apartment from her children and
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 facts do not fit the existing
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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.”). Accordingly, 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 other prongs.
      AFFIRMED.




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