                      REVISED October 30, 2008

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

                                                                   FILED
                                  No. 07-60769                 October 8, 2008

                                                           Charles R. Fulbruge III
UNITED STATES OF AMERICA                                           Clerk

                                            Plaintiff - Appellee
v.

DANNY HOPE

                                            Defendant - Appellant



                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Defendant, Danny Hope, was apprehended following a high speed chase
that ensued when a police officer attempted to pull him over for driving with a
broken headlight. The officer recovered a .380 caliber Walther-brand pistol from
under the passenger seat of Hope’s vehicle. The pistol was later identified as the
same weapon Defendant had used to rob a convenience store the previous day.
                                       No. 07-60769

       Hope was convicted of two counts of being a felon in possession of a
firearm.1 The first count covered the day Hope was apprehended; the second
count covered the convenience store robbery the previous day. However, at trial
the prosecution introduced no evidence that Hope ever relinquished constructive
possession of the gun over the two-day period underlying the two separate
counts. He was sentenced to 120 months for the first count and 15 months for
the second count, with the sentences to run consecutively.
       Hope contends that these sentences violate the Double Jeopardy Clause
of the Constitution. The government agrees and requests the case be remanded
to the district court for vacation of one of the counts of conviction and
resentencing. We are not bound by the Government’s concession of error and
give the issue independent review.2 Hope did not object at the sentencing
hearing and is raising this issue for the first time on appeal. Our review,
therefore, is for plain error, which requires an appellant to show (1) the existence
of actual error, (2) that the error was plain, and (3) that it affects substantial
rights.3
                                               I
       We must first determine if it was plain error, in contravention of the
Double Jeopardy Clause, to convict Hope of two counts of possessing a firearm
as a felon. The Supreme Court has defined plain error as error that is “clear,”



       1
        18 U.S.C. § 922(g)(1) (“It shall be unlawful for any person . . . who has been convicted
in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . .
possess in or affecting commerce, any firearm . . . .”).
       2
       See U.S. v. Claiborne, 132 F.3d 253, 254-55 (5th Cir. 1998) (per curiam) (affirming the
defendant’s sentence despite the Government arguing the district court erred in applying the
Sentencing Guidelines).
       3
        FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.”); U.S. v. Calverley, 37 F.3d 160, 162-
63 (5th Cir. 1994) (en banc).

                                               2
                                         No. 07-60769

or “equivalently ‘obvious,’”4 such that “the trial judge and prosecutor were
derelict in countenancing it, even absent the defendant’s timely assistance in
detecting it.”5 The error could have been “‘clear under current law’ at the time
of trial,”6 or in a case “where the law at the time of trial was settled and clearly
contrary to the law at the time of appeal[,] it is enough that the error be ‘plain’
at the time of appellate consideration.”7
       On the facts of this case, the district court plainly erred by convicting Hope
of two counts of possessing a firearm in violation of the Double Jeopardy Clause
of the 5th Amendment. The Double Jeopardy Clause “prohibits the Government
from charging a single offense in several counts and is intended to prevent
multiple punishments for the same act.”8 To prevail on a double jeopardy
argument, “the defendant bears the burden to establish, both in law and in fact,
the commonality of the offenses.”9
       This Circuit has not squarely addressed the legal question of whether
possession of the same gun when arrested and on the previous day in a robbery,
absent evidence that the possession was interrupted, can constitute two
violations of 18 U.S.C. § 922(g). However, a confluence of our sister circuits has
answered this question with a resounding “no.” The First, Sixth, Seventh,




       4
           U.S. v. Olano, 507 U.S. 725, 734 (1993) (citing U.S. v. Young, 470 U.S. 1, 17 n.14
(1985)).
       5
           U.S. v. Frady, 456 U.S. 152, 163 (1982).
       6
           Calverly, 37 F.3d at 162-63 (quoting Olano, 507 U.S. at 734).
       7
           Johnson v. U.S., 520 U.S. 461, 468 (1997).
       8
        U.S. v. Kimbrough, 69 F.3d 723, 729 (5th Cir. 1995); U.S. CONST. amend. V (“ . . . nor
shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .
.”).
       9
           U.S. v. Register, 931 F.2d 308, 312 (5th Cir. 1991).

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                                        No. 07-60769

Ninth, and Eleventh Circuits10 have all held, concerning statutes prohibiting
firearm possession: “Possession is a course of conduct, not an act; by prohibiting
possession Congress intended to punish as one offense all of the acts of dominion
which demonstrate a continuing possessory interest in a firearm.”11
       This Circuit has addressed closely related issues. In United States v.
Berry,12 we held that multiple convictions under 18 U.S.C. § 922(g) for the
simultaneous possession of multiple weapons violated the Double Jeopardy
Clause and explained that “had the government evidence that Berry obtained
the guns at different times . . . then it could have sought [multiple convictions].”
Such reasoning implicitly recognizes that continuing possession of the same
firearm is a single course of conduct under the statute, constituting one offense.
       This interpretation of the firearm statute corresponds with our
understanding of possession as used in other criminal statutes, such as those
prohibiting drug possession. In that context we have held regarding double
jeopardy, “the crucial factual question is whether the defendant continuously
possessed cocaine or whether he had it in his possession on distinct occasions.”13
Applying this interpretation of “possession” to the instant case, the fact that the
indictment charged Hope with possession of the same, distinct firearm14 when
arrested and on the previous day in a robbery raises an inference of continuous

       10
         See U.S. v. Destefano, 201 F.3d 429 (1st Cir. 1999) (unpublished); U.S. v. Jones, 533
F.2d 1387 (6th Cir. 1976); U.S. v. Conley, 291 F.3d 464 (7th Cir. 2002); U.S. v. Horodner, 993
F.2d 191 (9th Cir. 1993); U.S. v. Rivera, 77 F.3d 1348 (11th Cir. 1996). But see U.S. v. Erby,
246 F. App’x 228, 231 n.3 (4th Cir. 2007) (declining to adopt the position of the other circuits
in an unpublished opinion that is not binding precedent).
       11
            Jones, 533 F.2d at 1391.
       12
            977 F.2d 915, 919-20 (5th Cir. 1992).
       13
        U.S. v. Register, 931 F.2d 308, 312 (5th Cir. 1991) (citing U.S. v. Fiallo-Jacome, 784
F.2d 1064, 1066 (11th Cir. 1986)).
       14
          The indictment signifies that both counts were for possession of “one (1) Walther .380
caliber pistol, model PP, serial number 202593PP.”

                                               4
                                         No. 07-60769

possession that the government did not challenge and which is sufficient to
support its concession.          These facts differ from those in United States v.
Register15 where a cocaine dealer was charged with two counts of possession of
cocaine, with each count referencing a separate date. There, an alleged drug
dealer raised no inference that the two offenses were based on the continuous
possession of the same cocaine. Because a drug dealer’s modus operandi is to
move his drug inventory there is no reason, absent other evidence, to infer that
a dealer possesses the same stash days apart. Moreover, unlike firearms which
are distinct to the point of bearing serial numbers, drugs are fungible and not
easily identified as the same stash previously possessed.
       We are persuaded that it was plain error for the district court to sentence
Hope to two counts of firearm possession on the facts of this case.                           Our
interpretation of “possession” in other criminal contexts and those of our sister
circuits make clear that the statute criminalizes a “course of conduct, not an
act.” The error was plain and obvious. Finally, we point to United States v.
Leonard,16 where we recognized that a district court’s interpretation of a statute
may still be plain error, despite this Circuit never having had occasion to directly
interpret the statute, when a number of other circuits have agreed on the
interpretation and the statute itself is clear. That is the case here.17


       15
            Id. at 312-13.
       16
            157 F.3d 343, 345-46 (5th Cir. 1998).
       17
          Of course, as explained in U.S. v. Hull, 160 F.3d 265, 272 (5th Cir. 1998), we cannot
find plain error if it “requires the extension of precedent.” In Hull, the appellant challenged
his jury instruction as plain error. The Court upheld the conviction, pointing to precedent in
this Circuit that explicitly indicated that a jury instruction similar to that at issue in Hull “can
be appropriate.” It also cited a second case in which this Circuit did not question a similar jury
instruction, even though the review was de novo. Here, in contrast, although we have not
spoken directly on the issue, our precedent has implicitly resolved the issue in Hope’s favor.
Additionally, and in contrast with Hull, there is a consensus among the five other circuits that
have decided the issue. See U.S. v. Gore, 154 F.3d 34, 43 (2d Cir. 1998) (“The lack of this
Court’s precedent directly on point . . . will not prevent the district court’s error from being

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                                         No. 07-60769

                                               II
       Having decided that the error was plain, we ask whether the error
substantially affected the rights of the defendant. Hope’s combined sentences
resulted in a total term of imprisonment of 135 months, which exceeds the
statutory maximum of 120 months for one offense. Thus, the error resulted in
a sentence 15 months longer than is constitutionally permissible. Hope’s rights
were substantially affected.
       We find that this plain error “seriously affect[ed] the fairness”18 of the
judicial proceeding, and we therefore exercise our discretion to correct the error.
The conviction and sentence for one of the counts of firearm possession is
VACATED and the matter is REMANDED for resentencing.




deemed ‘plain’ because this is not a case in which we have taken no position on a certain issue
and upon which no other circuit has spoken, or upon which there is a sharp dispute among the
other circuits.”) (internal citations omitted).
       18
            U.S. v. Atkinson, 297 U.S. 157, 160 (1936).

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