     Case: 11-41103     Document: 00511907088         Page: 1     Date Filed: 07/02/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 2, 2012
                                     No. 11-41103
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BENIGNO AYALA-JUAREZ, also known as Benigno Juarez-Ayalanull also
known as Benigno Juarez Ayala,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-330-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Benigno Ayala-Juarez (Ayala) appeals the sentence he received after he
pleaded guilty to possession of a firearm by a convicted felon and to possession
of ammunition by a convicted felon. Each count charged a violation of 18 U.S.C.
§ 922(g)(1). Ayala argues that under United States v. Berry, 977 F.2d 915,
919-20 (5th Cir. 1992), his conviction and sentence on one of his counts must be
vacated because his two convictions and sentences are multiplicitous and violate


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
  Case: 11-41103   Document: 00511907088     Page: 2   Date Filed: 07/02/2012

                                No. 11-41103

the Double Jeopardy Clause.      The government agrees and has filed an
Unopposed Motion for Summary Remand in lieu of Filing Appellee’s Brief.
     The government’s motion is GRANTED. Ayala’s sentences are VACATED,
and the case is REMANDED for dismissal of the multiplicitous count and for
resentencing on the count selected by the government. See Berry, 977 F.2d at
919-20; United States v. Osunegbu, 822 F.2d 472, 481 (5th Cir. 1987).




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