     13-3348-cr
     United States v. McTaw

 1                                 UNITED STATES COURT OF APPEALS
 2                                     FOR THE SECOND CIRCUIT
 3
 4                                         SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 8   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 9   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
11   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14
15           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
16   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17   9th day of October, two thousand fourteen.
18
19   Present:    ROSEMARY S. POOLER,
20               REENA RAGGI,
21               PETER W. HALL,
22                           Circuit Judges.
23   _____________________________________________________
24
25   UNITED STATES OF AMERICA,
26
27                                   Appellee,
28
29                            v.                                          13-3348-cr
30
31   MARQUIS McTAW,
32
33                           Defendant-Appellant.
34   _____________________________________________________
35
36   Appearing for Appellant:        Robin C. Smith, San Rafael, N.Y.
37
38   Appearing for Appellee:         Joseph J. Karaszweski, Assistant United States Attorney for the
39                                   Western District of New York, (William J. Hochul, Jr., United
40                                   States Attorney, on the brief) Buffalo, N.Y.
41
42          Appeal from the United States District Court for the Western District of New York
43   (Larimer, J.).
44
45        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
46   AND DECREED that the judgment of conviction of said District Court be and it hereby is
47   AFFIRMED.
48
 1           Marquis McTaw appeals from a judgment of conviction entered on August 27, 2013, in
 2   the United States District Court for the Western District of New York (Larimer, J.). After
 3   pleading guilty to three counts of conviction arising out of his unlawful possession of one sawed-
 4   off short-barreled rifle, McTaw argues for the first time on appeal that his conviction under 18
 5   U.S.C. § 5861(c) and 18 U.S.C. § 5861(d) violates the Double Jeopardy Clause of the Fifth
 6   Amendment.1 We assume the parties’ familiarity with the underlying facts, procedural history,
 7   and specification of issues for review.
 8
 9           On March 6, 2013, McTaw pleaded guilty without a plea agreement to all three counts of
10   his indictment. Count Three charged him with“Possession of an Unregistered Short-barreled
11   Rifle” in violation of 18 U.S.C. § 5861(d), which makes it unlawful to knowingly “possess a
12   firearm which is not registered to him in the National Firearms Registration and Transfer
13   Record.” 26 U.S.C. § 5861(d). Count Two charged him with “Possession of a Short-barreled
14   Rifle” in violation of 18 U.S.C. § 5861(c), which makes it unlawful to “possess a firearm made
15   [or altered] in violation of” the requirements in 26 U.S.C. § 5822 that an individual who
16   manufactures or alters a firearm in the United States must file a written application to make and
17   register the firearm, pay certain taxes, identify the firearm, and obtain approval to make and
18   register the firearm. 26 U.S.C. §§ 5861(c), 5845(i), 5822. On August 15, 2013, the district court
19   sentenced McTaw principally to 84 months’ imprisonment, to run concurrently on each of the
20   three counts, as well as a $100 special assessment on each count of conviction.
21
22           “The Double Jeopardy Clause of the Fifth Amendment, inter alia, ‘protects against
23   multiple punishments for the same offense.’” United States v. Polouizzi, 564 F.3d 142, 154 (2d
24   Cir. 2009) (quoting Schiro v. Farley, 510 U.S. 222, 229 (1994)). “[W]here the same act or
25   transaction constitutes a violation of two distinct statutory provisions, the test to be applied to
26   determine whether there are two offenses or only one, is whether each provision requires proof
27   of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).
28   McTaw argues that his conviction on Count Two runs afoul of the Double Jeopardy Clause,
29   because it does not require proof of an element not contained in Count Three, and therefore proof
30   of Count Three “necessarily includes” proof of Count Two. See Ball v. United States, 470 U.S.
31   856, 862 (1985).
32
33          We review a Double Jeopardy claim raised for the first time on appeal for plain error. See
34   United States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009). In order to establish plain error, “there
35   must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Johnson v.
36   United States, 520 U.S. 461, 467-68 (1997) (quoting United States v. Olano, 507 U.S. 725, 732
37   (1993)).
38
39          We conclude that McTaw has not met this standard. “An error is ‘plain’ if the ruling was
40   contrary to law that was clearly established by the time of the appeal.” Irving, 554 F.3d at 78.
41   Both parties concede this circuit has not addressed the question that McTaw now raises. “A
42   reviewing court typically will not find [plain] error where the operative legal question is


            1
               McTaw does not challenge Count One of the indictment, which charged him with being
     a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
     924(a)(2).

                                                     2
 1   unsettled.” United States v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001). Moreover, we do not
 2   observe a uniform rule among the circuits. Cf. United States v. Gore, 154 F.3d 34, 43 (2d Cir.
 3   1998) (holding defendant established plain error where other circuits had “uniformly decided”
 4   the convictions violated Double Jeopardy). To the contrary, while the Ninth Circuit has
 5   concluded that “it was not Congress’s intent to impose multiple punishments for possessing a
 6   single firearm even if that firearm violates different subsections of 26 U.S.C. § 5861,” United
 7   States v. Zalapa, 509 F.3d 1060, 1062 (9th Cir. 2007), other circuits have permitted simultaneous
 8   convictions under these two provisions so long as the sentences imposed were concurrent or did
 9   not exceed the statutory maximum, see United States v. Talbott, 902 F.2d 1129, 1132-33 (4th
10   Cir. 1990); United States v. Bogden, 865 F.2d 124, 128 (7th Cir. 1988); United States v. Nation,
11   832 F.2d 71, 74 (5th Cir. 1987); United States v. Kiliyan, 504 F.2d 1153, 1155 (8th Cir. 1974).
12
13         Without a prior decision from this court or the Supreme Court supporting the argument
14   McTaw now advances, we could not find any error to be plain, if error it was. Accordingly, the
15   judgment of conviction, imposed by the district court is hereby AFFIRMED.
16
17
18                                                       FOR THE COURT:
19                                                       Catherine O’Hagan Wolfe, Clerk
20
21
22




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