            Case: 12-11368   Date Filed: 04/23/2013   Page: 1 of 4




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11368
                         Non-Argument Calendar
                       ________________________

      D.C. Docket Nos. 4:10-cv-00011-RLV; 4:07-cr-00001-RLV-WEJ-1



JEDSON EDWARD LEIST,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (April 23, 2013)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 12-11368      Date Filed: 04/23/2013   Page: 2 of 4


      Appellant Jedson Edward Leist, a federal prisoner, appeals from his

convictions and sentences after the district court resentenced him in accordance

with its grant of § 2255 relief. Leist filed his counseled § 2255 motion while

serving a total 20-year sentence following convictions for, inter alia, two counts of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(Counts 1 and 14) and two counts of possession of a firearm after having been

convicted of a domestic violence misdemeanor, in violation of 18 U.S.C.

§ 922(g)(9) (Counts 2 and 15). The district court concluded that Counts 1 and 2

were multiplicitous as to each other, as were Counts 14 and 15. In granting § 2255

relief, the district court vacated Leist’s sentences as to the multiplicitous counts of

conviction, resentenced Leist on Counts 1 and 14, and “merge[d]” Counts 2 and 15

into those counts, respectively.

      Leist argues on appeal that the district court should have vacated his

convictions under Counts 2 and 15 along with the mandatory statutory assessment

that he was required to pay as a result of those convictions. The government

substantially agrees with Leist’s arguments on appeal.

      We generally review de novo issues of double jeopardy and due process that

arise during sentencing. See United States v. Watkins, 147 F.3d 1294, 1296 (11th

Cir. 1998). However, when a party raises an issue concerning the validity of a

conviction for the first time on appeal, we review for plain error. United States v.


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Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). We will reverse on plain error

review only if there is: (1) error, (2) that is plain, (3) that affects substantial rights,

and (4) that seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. at 1271 (internal quotation marks omitted).

       The Supreme Court has held that where a defendant received two

convictions for the same conduct, the error must be remedied by vacating one of

the convictions. Ball v. United States, 470 U.S. 856, 864, 105 S. Ct. 1668, 1673,

84 L. Ed. 2d 740 (1985). Even where the district court imposed concurrent

sentences for the multiplicitous convictions, such that the defendant suffered no

additional period of imprisonment for the second conviction, one conviction must

be vacated because the fact of a separate conviction can carry with it collateral

consequences. Id. at 864-65, 105 S. Ct. at 1673. The Supreme Court subsequently

held that a mandatory special assessment is, by itself, a sufficient collateral

consequence requiring that a multiplicitous conviction be vacated. Rutledge v.

United States, 517 U.S. 292, 301-03, 116 S. Ct. 1241, 1247-48, 134 L. Ed. 2d 419

(1996). The district court is required to impose a $100 assessment against an

individual convicted of a felony offense against the United States. 18 U.S.C.

§ 3013(a)(2)(A).

       Leist did not object to the resentencing below, so our review is limited to

plain error. See Peters, 403 F.3d at 1270. Based on Rutledge, the district court


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plainly erred when it failed to vacate convictions that it found to be multiplicitous.

The error affected Leist’s substantial rights, even if the only immediately tangible

consequence of the error is that Leist paid an additional $200 in mandatory

assessments. See Rutledge, 517 U.S. at 301-03, 116 S. Ct. at 1247-48. Further, as

the Supreme Court discussed in Ball, a conviction can carry with it numerous

potential collateral consequences. See Ball, 470 U.S. at 864-65, 105 S. Ct. at 1673.

Based on Ball, the error here, which the government concedes, necessarily affects

the fairness of judicial proceedings. We therefore vacate Leist’s convictions under

Counts 2 and 15 of his second superseding indictment and remand the case to the

district court to amend the judgment accordingly, including a $200 reduction in

Leist’s statutory assessment.

      JUDGMENT VACATED IN PART; CONVICTIONS AND

SENTENCES VACATED AS TO COUNTS 2 AND 15 AND REMANDED

FOR THE ENTRY OF AN AMENDED JUDGMENT IN ACCORDANCE

WITH THIS OPINION.




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