                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-4650


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

           v.

LELAND VICTOR NIELSEN, III,

                 Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Terry L. Wooten, Chief District
Judge. (3:13-cr-00558-TLW-1)


Argued:   September 17, 2015                 Decided:    February 2, 2016


Before DUNCAN    and   DIAZ,   Circuit   Judges,   and    DAVIS,   Senior
Circuit Judge.


Affirmed   in  part,   vacated   in  part,   and  remanded  with
instructions by unpublished opinion.    Senior Judge Davis wrote
the opinion, in which Judge Duncan and Judge Diaz joined.


ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD,
LLP, Greenville, South Carolina, for Appellant.    James Hunter
May, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.   ON BRIEF: William N. Nettles, United
States Attorney, Julius N. Richardson, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Senior Circuit Judge:

      This     case   arises    from   the        conviction    of   Leland   Victor

Nielsen, III, on four counts of aggravated sexual abuse of a

minor by force in violation of 18 U.S.C. § 2241(a), (c) (2012),

and four counts of sexual abuse of a minor in violation of 18

U.S.C. § 2243(a) (2012), based on the same conduct.                     On appeal,

Nielsen      presents    two    issues      for     our    review.      First,   he

challenges the district court’s denial of his motion to suppress

statements made to federal agents.                 Second, he contends that his

convictions are multiplicitous.               For the reasons stated below,

we affirm the district court’s denial of Nielsen’s motion to

suppress but vacate his conviction and sentence on Counts 2, 4,

6,   and   8   for    sexual   abuse   of     a    minor   as   multiplicitous    in

violation of the Double Jeopardy Clause of the Fifth Amendment.

Consequently, affirming in part and vacating in part, we remand

the case for the entry of an amended judgment.

                                         I.

                                         A.

      On May 22, 2013, the FBI received a report of potential

sexual assaults occurring at the Fort Jackson Army installation

in Columbia, South Carolina.             Twelve-year-old B.R. had told her

guidance counselor that she had been sexually assaulted by her

thirty-one-year-old uncle, Leland Nielsen, III, at her family’s

home on Fort Jackson.          Nielsen, who was married to the sister of

                                         3
B.R.’s mother, also lived in the home.                      A team of FBI agents

proceeded     to    the   Fort       Jackson      residence    to    investigate         the

allegations.

       Nielsen was not at the residence when the agents arrived,

but some family members were present and gave consent for the

agents   to    enter      the   house.           Agent   Michael     Stansbury         asked

Nielsen’s     mother-in-law          to   call    Nielsen   and     ask     him   to   come

home, but not to tell him the FBI was there.                        Nielsen’s mother-

in-law called Nielsen and falsely told him that he needed to

come home due to a medical emergency involving his sister-in-

law.

       Agent Robert Waizenhofer waited in front of the house for

Nielsen to arrive.          When Nielsen arrived, at approximately 8:00

p.m., Agent Waizenhofer approached him as he exited his car.

The two began speaking in the driveway.                       Agent Waizenhofer had

not drawn his gun, and he was not wearing any FBI insignia.                              He

told Nielsen that he was not in trouble and asked him about

B.R.’s allegations.          Nielsen began admitting to sexual acts with

B.R.   near   the    start      of    the   interview,      and     Agent    Waizenhofer

continued to question Nielsen to elicit details.                       Throughout the

interview,     Agent      Waizenhofer          attempted      to    “empathize”        with




                                             4
Nielsen in an effort to open up conversation with him.                  J.A. 48. 1

     Agent Waizenhofer was later joined by Agent Stansbury, and

the agents took turns asking Nielsen questions.                  At some point

during    the   interview,   Agent    Stansbury   became    more    direct     or

aggressive in his questioning.             It had become apparent to the

agents that B.R. had performed oral sex on Nielsen but Nielsen

had not expressly admitted this.            Agent Stansbury thus directly

questioned Nielsen on that point, stating “she sucked your dick.

Didn’t she?       She sucked your dick.”      J.A. 159.    At another point

during the interview, the agents sought help from Agent Craig

Janikowski, who was dressed in green FBI fatigues, after coming

to an “impasse” with Nielsen.          J.A. 44-45, 154-55.        No more than

three agents ever interviewed Nielsen at once, and one agent

generally led the questioning even when others were present.

     At    some    point   during    his   interaction    with    the     agents,

Nielsen told them that he had post-traumatic stress disorder

(PTSD) resulting from an accident at a chemical plant where he

was previously employed and that he was on medication to treat

the disorder.       While Nielsen ultimately admitted to engaging in

various sex acts with B.R., he indicated that his PTSD was to

blame for his conduct.       J.A. 42–44.



     1 Citations to the “J.A.” are to the Joint Appendix filed by
the parties in this case.



                                       5
      The   entire     interview           took       place    in     front       of    Nielsen’s

residence.      Throughout the interview, there were five or six

agents present at the residence.                      Nielsen was not handcuffed or

physically restrained while agents spoke with him, and he was

able to move around the yard and driveway.                                 Agent Waizenhofer

testified    that,    at    one       point,         Nielsen    retrieved         a    bottle     of

water from his car during the interview.                            J.A. 60–61.           Nielsen

was never told that he was free to terminate the interview and

leave, and he was not provided with Miranda warnings prior to

speaking     with     the       agents.               The     interview          lasted        until

approximately 11:00 p.m., when the agents placed Nielsen under

formal arrest.

                                             B.

      Nielsen was indicted on four counts of aggravated sexual

abuse of a minor by force under § 2241(a), (c) and four counts

of sexual abuse of a minor under § 2243(a) arising from four

sexual    encounters    between         Nielsen         and    B.R.         Nielsen      filed    a

pretrial     motion    to       suppress         statements         he     made       during    his

interview     with    the       FBI,       which       the     district          court     denied

following a hearing.

      The   case     proceeded        to    trial.            Before       the    jury    charge,

Nielsen     objected       to     a     portion          of     the        district       court’s

instruction on the force element of the § 2241(a), (c) offenses.

The   instruction      permitted           the       government       to    prove       force    by

                                                 6
inference based on a disparity in strength and coercive power

between the offender and the victim.             Nielsen argued that, under

the instruction, anyone who committed sexual abuse of a minor

under § 2243(a) would be inherently guilty of aggravated sexual

abuse under § 2241(a), (c).         The court overruled the objection

and instructed the jury accordingly.

       The jury returned guilty verdicts on all counts.                   Nielsen

raised his challenge to the force instruction again in a motion

for a new trial, which was denied.              The court sentenced Nielsen

on all eight convictions as follows: imprisonment for terms of

life as to each of the four § 2241(a), (c) counts and terms of

fifteen years as to each of the four § 2243(a) counts, with all

such   terms   to    run   concurrently;       and   supervised    release       for

concurrent terms of ten years for each count should Nielsen ever

be released.        The court also ordered Nielsen to pay a total of

$800 in special assessment fees based on the eight counts of

conviction.    Nielsen timely appealed.

                                     II.

                                     A.

       Nielsen contends that the district court erred in denying

his motion to suppress the statements he made to federal agents

as described above.        He argues that his statements should have

been    suppressed     because    they       occurred   during     a    custodial

interrogation   without     the   warnings      required   under       Miranda    v.

                                         7
Arizona, 384 U.S. 436 (1966), and because his statements were

not voluntary.      We disagree.

      We review the district court’s findings of fact on a motion

to   suppress    for     clear      error       and   its    legal       determinations         de

novo.     United States v. Hashime, 734 F.3d 278, 282 (4th Cir.

2013) (citation omitted).               When reviewing the denial of a motion

to suppress, we view the evidence in the light most favorable to

the government.         Id. (citation omitted).

      The Fifth Amendment provides that “[n]o person . . . shall

be   compelled     in    any     criminal        case    to    be       a   witness        against

himself.”       U.S. Const. amend. V.                 In Miranda, the Supreme Court

adopted a prophylactic rule that law enforcement must warn a

criminal    suspect        of    certain         rights       prior         to    a       custodial

interrogation      as     a     means      of    protecting         this         constitutional

right.          Miranda,      384    U.S.       at    444.         In    general,         evidence

obtained    from    a     custodial         interrogation               without       a     Miranda

warning    is    inadmissible         in    the       prosecution’s              case-in-chief.

United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001).

      Absent formal arrest, Miranda warnings are required only

“where there has been such a restriction on a person’s freedom

as   to   render    him       ‘in    custody.’”              Id.    (quoting          Oregon     v.

Mathiason, 429 U.S. 492, 495 (1977)).                              “An individual is in

custody for Miranda purposes when, under the totality of the

circumstances, ‘a suspect’s freedom of action is curtailed to a

                                                8
degree associated with formal arrest.’”                           Id. (quoting Berkemer

v.   McCarty,     468    U.S.       420,    440          (1984)).        This    inquiry    is

objective,       looking       to   whether           “‘a    reasonable         man   in   the

suspect’s position would have understood his situation’ to be

one of custody.”          Hashime, 734 F.3d at 282 (citation omitted).

A number of factors are relevant to this inquiry, including “the

time, place and purpose of the encounter, the words used by the

officer, the officer’s tone of voice and general demeanor, the

presence of multiple officers, the potential display of a weapon

by   an   officer,      and     whether     there           was   any    physical     contact

between the officer and the defendant.”                           Id. at 283 (citation

omitted).        We     also    consider            an    individual’s      isolation      and

separation from family, as well as any physical restrictions.

Id. (citations omitted).

      Considering the totality of the circumstances, the facts

here do not demonstrate that Nielsen was in custody when he

spoke     with   federal       agents      on       May     22,   2013.         Nielsen    was

interviewed by agents at his residence rather than at a police

station or other law enforcement facility.                          While this fact is

not determinative, we are generally less likely to regard an

interview conducted in a familiar setting like a suspect’s home

as a custodial interrogation.                       See id. at 284.             Five or six

federal agents were present at the residence, but no more than

three agents interviewed Nielsen at a time.                             Agent Waizenhofer,

                                                9
the agent who initiated contact with Nielsen, told Nielsen that

he was not in trouble and maintained an “empathetic” tone with

Nielsen throughout the interview.             The agents never drew their

weapons at any point during the interaction.                 Nielsen was not

handcuffed or otherwise physically restrained, and he was able

to move around the yard and driveway.                   Additionally, Nielsen

never asked to end the interview or to leave.

      To be sure, some aspects of the agents’ interaction with

Nielsen are consistent with custody.              While the interview was

conducted at Nielsen’s residence, Nielsen knew that agents were

searching the house while others spoke with him outside.                   He was

separated    from    his    family.     The   interview    lasted    for    three

hours, ending after dark.             At times, the agents’ questioning

became more aggressive.         And while Nielsen was not under arrest

and was free to terminate the interview, no one communicated

either of those facts to him.

      Taken together, however, the circumstances do not reflect

the restriction of freedom associated with formal arrest.                   While

several aspects of the interview favor a finding of custody, we

do   not   fault    the    district   court’s   conclusion    that    they    are

outweighed    by    circumstances     that    suggest    otherwise—the      small

number of agents at the residence, the lack of any physical

restraints on his movement and his ability to move around the

yard and driveway, and, at the start at least, the generally

                                       10
empathetic tone of the interview.       Nielsen’s interview was not

conducted in the sort of environment that we have previously

found consistent with custody.      See, e.g., Hashime, 734 F.3d at

281, 283–85 (finding three-hour interview of suspect in home to

be custodial interrogation when suspect was awakened at gunpoint

with fifteen to thirty officers present in the residence, was

not permitted to move unless guarded, and was isolated from his

family and questioned in a small storage room); United States v.

Colonna, 511 F.3d 431, 435–36 (4th Cir. 2007) (finding three-

hour interview to be custodial interrogation when suspect was

awakened at gunpoint with twenty-three officers present in the

residence, was guarded at all times, and was questioned in an

FBI vehicle).

       It is possible that Nielsen did not feel, subjectively,

that he was free to terminate the encounter.      But our inquiry is

objective and not based on the suspect’s subjective feelings.

Hashime, 734 F.3d at 285.    Any interview by law enforcement with

a   suspect   carries   certain   “coercive   aspects”   due   to   the

heightened risk that the suspect will be arrested and charged.

Hargrove, 625 F.3d at 178.        We cannot conclude, however, that

Nielsen was in custody simply because he was approached by law

enforcement for questioning about the allegations made against

him.   See id.



                                   11
       We     hold    that,   viewing       the    evidence       in       the    light      most

favorable to the government, a reasonable person in Nielsen’s

position would not have understood his position to be one of

custody.        The    agents      were    not     required       to       recite     Nielsen’s

Miranda rights prior to the interview, and Nielsen’s statements

are    thus    not    subject      to     suppression       under          Miranda     and    its

progeny.

                                             B.

       Nielsen also argues that even apart from the requirements

of Miranda, his statements were not voluntary.                               A statement is

involuntary under the Due Process Clause when it is “‘extracted

by . . . threats or violence’ or ‘obtained by . . . direct or

implied       promises’       or    ‘the        exertion     of        .    .     .    improper

influence.’”          United States v. Ayesh, 702 F.3d 162, 168 (4th

Cir. 2012) (omissions in original) (quoting Hutto v. Ross, 429

U.S.   28,     30    (1976)).       The    relevant        inquiry         is    “whether     the

defendant’s will has been overborne or his capacity for self-

determination         critically        impaired    because       of       coercive      police

conduct.”       United States v. Cristobal, 293 F.3d 134, 140 (4th

Cir. 2002) (citations omitted).                   To make this determination, we

examine       the    totality      of     the     circumstances,            including        “the

characteristics of the defendant, the setting of the interview,

and the details of the interrogation.”                      Id. (citation omitted).

Coercive police conduct is “a necessary predicate” to a finding

                                             12
that a suspect’s statements are involuntary.                        Id. (citations

omitted).

      To support his argument, Nielsen points to many of the same

aspects of his interview with the agents that he identified as

indicative   of    custody.      None    of    these     factors—the       sometimes

aggressive questioning of the agents, the length and location of

the   interview,    or    the   continuation        of      the    interview    after

Nielsen had confessed to the substance of the allegations—rise

to the level of coercive police conduct.                    Nielsen can point to

no conduct by the agents that would constitute the types of

actions generally considered to be coercive under our case law,

such as threats or violence, lengthy marathon interrogations, or

extended isolation.       See United States v. Braxton, 112 F.3d 777,

784–85 (4th Cir. 1997) (en banc) (collecting cases).

      Nielsen   also     emphasizes     that   he   suffers         from   PTSD,    had

taken   several    medications    the    morning       of    the    interview,      and

experienced anxiety during the interaction with the agents.                           A

suspect’s mental condition, whether due to mental illness or

medication, is not, standing alone, sufficient to render that

suspect’s statements involuntary.              Cristobal, 293 F.3d at 141

(citing Colorado v. Connelly, 479 U.S. 157, 164–65 (1986)).                         And

even when taken together with the other circumstances of the

interview,   Nielsen’s      mental    condition      does         not   lead   to   the

conclusion that his “will [was] overborne or his capacity for

                                        13
self-determination              critically          impaired”         during      the

interrogation.         Id. at 140 (citation omitted).                Accordingly, we

hold that the district court did not err in concluding that the

circumstances surrounding Nielsen’s interrogation comported with

due process.

                                        III.

                                           A.

        Nielsen also challenges his convictions as multiplicitous.

He argues that Counts 1, 3, 5, and 7 of the indictment, charging

aggravated sexual abuse of a minor by force, and Counts 2, 4, 6,

and   8,    charging     sexual   abuse    of   a    minor,    are    multiplicitous

because the district court instructed the jury that it could

infer force to meet the elements of aggravated sexual abuse of a

minor       by   force     if     it   found        that    the      defendant    had

disproportionately        greater      strength      than     the    victim,   which,

Nielsen contends, will “inevitably” be the case in a child abuse

case given the disparity in age between defendant and victim.

Br.   Appellant     18.      We    agree    that    Nielsen’s       convictions   are

multiplicitous, though not for the reasons cited by Nielsen. 2


        2
       Because we resolve Nielsen’s multiplicity challenge on
other grounds, we need not address his argument concerning the
force instruction at length.   However, because Nielsen argues
that the alleged error in the force instruction entitles him to
a new trial rather than the usual remedy of vacating the
multiplicitous convictions, we note that the trial judge
properly instructed the jury in this regard, see United States
(Continued)
                                           14
       Among the guarantees provided in the Double Jeopardy Clause

is protection against “the imposition of cumulative punishments

for the same offense in a single criminal trial.”                         United States

v.     Shrader,      675    F.3d    300,    313       (4th    Cir.     2012)     (citation

omitted).           “The    legislature     remains          free    under     the    Double

Jeopardy Clause to define crimes and fix punishments; but once

the legislature has acted courts may not impose more than one

punishment for the same offense . . . .”                            Brown v. Ohio, 432

U.S.     161,       165     (1977).          An       indictment        is      improperly

multiplicitous        when     it   charges       a   single        offense    in    several

counts.       United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.

1993)    (citation         omitted).       “[R]eversal         is     warranted      if   the

defendant actually was convicted on multiplicitous counts and

subjected to multiple punishments.”                   Id. (citation omitted).

       When     a    defendant      is     convicted         of     violating       multiple

statutory provisions for a single act or transaction, we employ

the analysis set forth in Blockburger v. United States, 284 U.S.

299 (1932), to determine if the convictions offend the Double

Jeopardy Clause.           Under Blockburger, “the test to be applied to

determine whether there are two offenses or only one, is whether



v. Johnson, 492 F.3d 254, 258 (4th Cir. 2007) (collecting
cases), and that the government relied on proof of Nielsen’s
size and strength to establish the force element, not simply
B.R.’s age, see J.A. 647.



                                            15
each provision requires proof of an additional fact which the

other does not.”     United States v. Martin, 523 F.3d 281, 291

(4th Cir. 2008) (quoting Blockburger, 284 U.S. at 304).                 Because

the Blockburger analysis is a “rule of statutory construction,”

it “should not be controlling where . . . there is a clear

indication of contrary legislative intent.”              United States v.

Allen, 13 F.3d 105, 108 (4th Cir. 1993) (omission in original)

(quoting Whalen v. United States, 445 U.S. 684, 691 (1980), and

Albernaz v. United States, 450 U.S. 333, 340 (1981)).

     Under   Blockburger,   sexual    abuse   of   a   minor   is   a   lesser

included offense of aggravated sexual abuse of a minor by force.

Section 2243(a) proscribes sexual abuse of a minor:

     Whoever, in the special maritime and territorial
     jurisdiction of the United States . . . knowingly
     engages in a sexual act with another person who--
     (1) has attained the age of 12 years but has not
     attained the age of 16 years; and
     (2) is at least four years younger than the person so
     engaging;
     or attempts to do so, shall be fined under this title,
     imprisoned not more than 15 years, or both.

Section 2241(a) proscribes aggravated sexual abuse by force or

threat:

     Whoever, in the special maritime and territorial
     jurisdiction of the United States . . . knowingly
     causes another person to engage in a sexual act--
     (1) by using force against that other person; or
     (2) by threatening or placing that other person in
     fear that any person will be subjected to death,
     serious bodily injury, or kidnapping;
     or attempts to do so, shall be fined under this title,
     imprisoned for any term of years or life, or both.

                                     16
Section     2241(c)      provides        for    a    thirty-year        mandatory       minimum

sentence when the victim of aggravated sexual abuse is a minor,

including when the victim “has attained the age of 12 years but

has not attained the age of 16 years (and is at least 4 years

younger     than    [the      offender]).”             Because     § 2241(c)       imposes    a

mandatory minimum penalty for aggravated sexual abuse by force

or threat when the victim is a minor, age of the victim is an

element     of    the   offense      that       must      be   submitted    to     the    jury.

Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013).

      As    the    government        concedes,         because     the    only    difference

between the two offenses is the additional requirement under

§ 2241(a)(1) that force be proved to establish aggravated sexual

abuse,     the     § 2243(a)         offenses         are      merely    lesser        included

offenses of the greater § 2241(a), (c) offenses.                                  Suppl. Br.

Appellee     1.         “It    has       long    been       understood     that        separate

statutory crimes need not be identical either in constituent

elements or in actual proof in order to be the same within the

meaning of the constitutional prohibition.”                         Brown, 432 U.S. at

164   (citations        omitted).           A       greater     offense    and     a     lesser

included     offense       are     the    “same”       offense     for    double       jeopardy

purposes because the lesser included offense “requires no proof

beyond     that    which      is   required         for   conviction      of     the    greater

[offense].”        Id. at 168.


                                                17
      The      government            nonetheless             contends          that       Nielsen’s

convictions do not offend the Double Jeopardy Clause because

Congress intended to authorize separate punishments for sexual

abuse of a minor and aggravated sexual abuse of a minor by

force.        However, it can point to nothing in the legislative

history     of     either         statute      evincing         “a     clear       indication      of

contrary legislative intent” to impose multiple punishments for

the same offense.             Allen, 13 F.3d at 108 (quoting Albernaz, 450

U.S. at 340).          And the cases on which the government relies were

decided     based      on    a     Blockburger        analysis         of    the    two    statutes

prior    to      the    Supreme       Court’s         decision         in    Alleyne       and    are

therefore      inapposite.            See      United      States       v.    Rivera,       43   F.3d

1291, 1297 (9th Cir. 1995); United States v. Amos, 952 F.2d 992,

994 (8th Cir. 1991), abrogated on other grounds, United States

v.   Allery,      175       F.3d    610     (8th      Cir.    1999);         United    States      v.

Morsette,      858     F.    Supp.     2d      1049,      1052–53      (D.N.D.        2012).      We

therefore      see      no    reason      to    deviate         from    the     result      of   the

Blockburger analysis here.

      Accordingly,           we    conclude        that      the     district       court    should

have merged the offenses so that Nielsen would have only been

convicted      of,     and       sentenced      for,      the      greater      § 2241(a),        (c)

offense in connection with each of the four charged instances of

abuse.      See United States v. Jones, 204 F.3d 541, 544 (4th Cir.

2000) (citing Brown, 432 U.S. at 169) (holding that district

                                                 18
court erred in imposing separate sentence for lesser included

offense).    In failing to do so, the district court erred.

                                      B.

     Nielsen, however, failed to preserve this issue for appeal.

While   Nielsen     argues   that    the   multiplicity      error   was    not

apparent    until   the   district   court   charged   the    jury   with   the

allegedly erroneous force instruction, the multiplicity error we

identify above was apparent on the face of the indictment, yet

was never raised before the district court.                  Pursuant to the

version of Rule 12 in effect at the time of Nielsen’s trial,

Nielsen’s challenge to the indictment is waived because he did

not raise it in a pretrial motion, although “relief from the

waiver” may be granted “[f]or good cause.”                Fed. R. Crim. P.

12(b)(3)(B), (e) (2011).       Under the circumstances of this case,

where the error is so obvious that the government now concedes

that § 2243(a) is a lesser included offense of § 2241(a), (c)

under Blockburger and Nielsen attempted to raise a multiplicity

challenge during trial, we exercise our discretion to relieve

Nielsen of his waiver under Rule 12 and review the multiplicity

error discussed      above   under   plain   error   review.     See   United

States v. Bennafield, 287 F.3d 320, 322 (4th Cir. 2002) (citing

United States v. Olano, 507 U.S. 725, 731–32 (1993)).

     Under plain error review, a defendant must demonstrate that

“an error occurred, that the error was plain, and that the error

                                      19
affected his substantial rights.”             Id. (citing Olano, 507 U.S.

at 732).     An error is plain if it is “clear” or “obvious,”

Olano, 507 U.S. at 734, and it affects substantial rights if it

prejudices the defendant, Bennafield, 287 F.3d at 322 (citing

United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998)).

Correction of the error is at our discretion, which we exercise

only when the error “seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.”                Olano, 507 U.S.

at 736 (citation omitted).

       Nielsen’s     multiplicitous         convictions       satisfy        these

requirements.       That   the    § 2243(a)    and    § 2241(a),     (c)    counts

shared all elements besides force is clear and obvious from the

face    of   the     indictment     and     from      the   district        court’s

instructions to the jury.           The multiplicity error resulted in

Nielsen’s conviction and sentencing on eight counts instead of

four,   including    eight   concurrent       terms    of   imprisonment      (and

supervised    release)     and    special     assessment      fees     on    eight

convictions instead of four, and was therefore prejudicial to

him.    See United States v. Shorter, 328 F.3d 167, 173 (4th Cir.

2003) (discussing how even concurrent sentences on duplicative

convictions are improper); United States v. Leftenant, 341 F.3d

338, 348 (4th Cir. 2003) (vacating all but one of multiplicitous

sentences and special assessments).                And finally, because the

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

                                      20
reputation      of   judicial       proceedings,”                 Olano,      507    U.S.    at   736

(citation omitted), we should exercise our discretion to correct

it.    When “a federal court exceeds its own authority by imposing

multiple punishments not authorized by Congress, it violates not

only the specific guarantee against double jeopardy, but also

the constitutional principle of separation of powers in a manner

that     trenches      particularly           harshly             on    individual       liberty.”

Whalen,    445   U.S.      at     689.            The       imposition      of      multiplicitous

convictions      and      sentences          in    this          case   was    therefore      plain

error.

                                                  C.

       Having        concluded           that           Nielsen’s             convictions         are

multiplicitous and that the error was plain and is appropriate

for us to correct, we turn to the remedy.                               The usual remedy for

multiplicitous           convictions              is        to     vacate        the     offending

convictions        and     order         a        resentencing           of      the     defendant

accordingly.         See United States v. Brown, 701 F.3d 120, 127–28

(4th Cir. 2012) (citing Ball v. United States, 470 U.S. 856, 865

(1985)).     Nielsen nonetheless argues that the multiplicity error

entitles him to a new trial because the jury “was prejudiced by

the Government’s ‘prolix pleading’ with regard to multiplicitous

charges implicating the same exact elements of proof.”                                       Suppl.

Br.    Appellant     7.      We    rejected             a    similar     argument       in   United

States v. Colton, 231 F.3d 890 (4th Cir. 2000), and do so again

                                                  21
here.      Because    the     same        evidence    was    used    to   prove   the

§ 2241(a),     (c)   offenses        as     the    lesser    § 2243(a)     offenses,

Nielsen has suffered no cognizable prejudice from the jury’s

consideration of the multiplicitous counts.                         See Colton, 231

F.3d at 910.

                                           IV.

     For   the   reasons      set     forth       above,    the   district   court’s

denial   of   the    motion    to     suppress       is     affirmed.      Nielsen’s

convictions and sentences on Counts 2, 4, 6, and 8 for sexual

abuse of a minor under § 2243(a) are vacated, and the case is

remanded for entry of an order dismissing Counts 2, 4, 6, and 8

of the indictment and issuance of an amended judgment consistent

with this opinion.

                                                              AFFIRMED IN PART,
                                                           VACATED IN PART, AND
                                                     REMANDED WITH INSTRUCTIONS




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