                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0814n.06
                           Filed: November 6, 2006

                                            No. 06-5112

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Appellee,                                   )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
GENE LEACH,                                        )   WESTERN DISTRICT OF TENNESSEE
                                                   )
       Appellant.                                  )



       Before: RYAN, BATCHELDER and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Gene Leach pleaded guilty to being a felon in possession of

ammunition, for which the district court imposed a 21-month prison sentence. At sentencing the

district court did not abuse its discretion in permitting Leach’s estranged wife to testify about his

continued dangerousness. But it did err in declining to vacate the second and third counts of Leach’s

conviction as duplicative and in failing to enter just one judgment on the first count. We accordingly

affirm in part, reverse in part and remand the case to correct this error.


                                                  I.
No. 06-5112
U.S. v. Leach

       On August 25, 2005, Leach pleaded guilty to a three-count indictment for violating the

federal felon-in-possession statute. See 18 U.S.C. § 922(g). All three counts stemmed from

ammunition that officers seized from Leach during a lawful search of his vehicle on June 21, 2005.


       At sentencing, Leach moved for a downward departure. He presented medical evidence

along with his own testimony that it would be difficult for him to “get around” and “be treated while

in prison.” JA 25. Leach’s brother testified about Leach’s medical condition and pledged that he

would keep an eye on him after his release from prison. And Leach’s 13-year-old daughter testified

that her father had never harmed her and that she hoped to live with him once he was released from

custody.


       The government did not present any witnesses at the sentencing hearing, but it did note that

Leach’s estranged wife, Suzanne Leach, was in attendance and wanted to make a statement as a

victim of Leach’s crime. The court permitted Suzanne Leach to testify. She minimized the

importance of Leach’s medical condition, saying that Leach was a “very dangerous man,” JA 37, that

he had “threatened to kill [her],” JA 38, and that “as long as [his] trigger finger works, there are

people that are in danger,” JA 39.


       In sentencing Leach, the district court observed that Leach was “in the midst of a very

contentious divorce,” JA 45, and that even rational individuals may “resort to the base emotions of

anger and violence” when exposed to the “volatility of a divorce, a custody dispute or a property

dispute,” JA 46. Given these dangers, the court decided “that a probationary sentence . . . [was] not


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appropriate.” JA 47. But it did grant a three-level downward departure to accommodate Leach’s

medical condition, which lowered his offense level to 14 and which led to an advisory guidelines

sentencing range of 18–24 months. The district court imposed a sentence of 21 months, which the

court said was justified by “the threats to [Suzanne] Leach” and “the threats to law enforcement.”

JA 48. The district court also imposed two years of supervised release and “a one hundred dollar

special assessment per count for a total of three hundred dollars.” JA 49.


                                                    II.


        Leach raises two issues on appeal: (1) that the district court should not have permitted

Suzanne Leach to testify at the sentencing hearing and (2) that the district court should have merged

the three counts of the indictment. Because Leach did not raise either argument before the district

court, he must satisfy the requirements of plain-error review. See Fed. R. Crim. P. 52(b). He thus

must show “(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions

are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4)

the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 467 (1997) (internal quotation marks omitted); see also

United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). Leach has satisfied these

requirements with respect to one of his appellate arguments but not the other.


                                                    A.




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       At sentencing, trial courts have considerable discretion to permit the introduction of evidence

related to, among other things, “the nature and circumstances of the offense and the history and

characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Congress has provided that “[n]o

limitation shall be placed on the information concerning the background, character, and conduct of

a person convicted of an offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661; see also Roberts v. United States,

445 U.S. 552, 556 (1980) (reiterating “the fundamental sentencing principle that a judge may

appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of

information he may consider, or the source from which it may come”) (internal quotation marks

omitted); United States v. Rucker, 133 F. App’x 187, 193 (6th Cir. May 12, 2005).


       For better or worse, Suzanne Leach’s statement at the sentencing hearing plainly was relevant

to Leach’s “background, character, and conduct.” The sentencing judge was permitted to consider

that Leach was “in the midst of a very contentious divorce,” JA 45, that Suzanne Leach thought that

Leach’s medical condition was “temporary,” JA 46, and that “the threats to [Suzanne] Leach,”

among other things, might affect the length of any sentence that Leach should receive, JA 48.


       It thus makes no difference for our purposes whether Suzanne Leach had “standing” to testify

under the Crime Victim’s Rights Act, see 18 U.S.C. § 3771(a)(4), a point we would have to consider

if the district court had denied her an opportunity to be heard. No matter whether the Act applies

to Suzanne Leach’s testimony or not, the fact remains that the Act did not alter (or, more

importantly, limit) a district court’s traditionally broad discretion to consider “a wide variety of

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U.S. v. Leach

factors” at sentencing. Wisconsin v. Mitchell, 508 U.S. 476, 485 (1994) (“Traditionally, sentencing

judges have considered a wide variety of factors in addition to evidence bearing on guilt in

determining what sentence to impose on a convicted defendant.”); Williams v. New York, 337 U.S.

241, 246 (1949) (“[A] sentencing judge [can] exercise a wide discretion in the sources and types of

evidence used to assist him in determining the kind and extent of punishment to be imposed within

limits fixed by law.”).


       Nor does it change matters that the district court permitted her to testify because it thought

that the Act required her to have this opportunity. The fact remains that Suzanne Leach had access

to considerable evidence bearing on Leach’s sentence. Her daughter led the police to Leach’s initial

arrest. The presentence report indicated that Leach had previously threatened Suzanne Leach with

violence. And the government repeatedly told the district court that “[Suzanne Leach] does want to

be heard.” JA 35. Under these circumstances, Leach cannot show that any error in permitting her

to testify, if indeed it was error, “affect[ed] [his] substantial rights.” Fed. R. Crim. P. 52(b). No

plain error occurred.


                                                 B.


       Leach also challenges the court’s imposition of special assessments on each of the three

counts of his conviction. As the government acknowledges, a defendant who simultaneously

acquires and possesses weapons or ammunition does not commit separate crimes under 18 U.S.C.

§ 922(g). See United States v. Adams, 214 F.3d 724, 729 (6th Cir. 2000); United States v.


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U.S. v. Leach

Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976). Because no evidence shows that Leach separately

acquired or stored the ammunition that the officers seized from him, the district court should have

merged the three counts of the indictment. That is to say, it should have vacated the second and third

counts of the indictment and sentenced Leach on the remaining count while imposing one special

assessment of $100. The government to its credit concedes that this error should be corrected, and

we see no reason why it should not be.


                                                 III.


        For these reasons, we affirm in part, reverse in part and remand the case to the district court

to correct the error.




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