     Case: 14-20694      Document: 00513236596         Page: 1    Date Filed: 10/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                      No. 14-20694
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          October 19, 2015

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff – Appellee,

v.

RONALD RAY NORMAN, also known as Ronnie Ray Norman,

              Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CR-219


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ronald Ray Norman was convicted on two felon-in-possession counts
under 18 U.S.C. § 922(g)(1)—one for possessing a firearm, and the other for
possessing ammunition.          On appeal, Norman argues that his indictment
should have been quashed because it failed to charge that he had three
previous convictions for a violent felony or a serious drug offense, which are
prerequisites      to    the    fifteen-year      mandatory-minimum               sentencing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-20694
enhancement codified at 18 U.S.C. § 924(e)(1). Norman also challenges the
sufficiency of the evidence and the district court’s denial of his motion to
suppress a statement he made to police officers while they were searching him
after his arrest. Finally, Norman challenges his sentences as duplicative in
violation of the Double Jeopardy Clause. Norman’s challenge to the indictment
is foreclosed by our decision in United States v. Stone, 306 F.3d 241 (5th Cir.
2002). Both convictions were supported by sufficient evidence and Norman’s
statement to police was not responsive to interrogation. However, Norman’s
two convictions reflect only a single episode of possession and thus violate the
Double Jeopardy Clause. Accordingly, we VACATE Norman’s sentences and
REMAND with instructions that the district court dismiss one of the counts at
the election of the government.
                                       I.
      Norman was arrested in February 2014 after a police chase that ended
on foot on the northbound lanes of I-45 in Houston. During the chase, two
police officers saw Norman discard a handgun in the bushes separating the
freeway from a feeder road.       A short time later, after Norman had been
apprehended, the officers returned to the bushes and located a .38 caliber
Smith & Wesson revolver. Two other officers quickly searched Norman while
still standing on I-45 and discovered five loose .38 Special bullets in his pants
pocket. After the officer who found the bullets showed them to the other officer
and remarked “Make sure you search him good . . . look what I found,” Norman
responded “I found those at Starbucks.” The officers had not asked Norman
any questions or given him Miranda warnings.
      Norman was indicted for being a felon in possession of a firearm (the .38
revolver) and for being a felon in possession of ammunition (the five .38 Special
bullets), both in violation of § 922(g)(1). The indictment invoked § 924(e)(1),
which imposes a mandatory-minimum prison term of fifteen years on any
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                                  No. 14-20694
person who violates § 922(g) and “has three previous convictions . . . for a
violent felony or a serious drug offense.” The indictment did not indicate that
Norman had three such previous convictions. Norman moved to quash the
indictment, and the district court denied the motion.
      At trial, the parties stipulated that Norman had a previous felony
conviction.   Norman moved to suppress his statement, “I found those at
Starbucks,” and the court denied the motion after a suppression hearing.
Norman was found guilty on both counts after a three-day jury trial. At the
sentencing hearing, the district court imposed concurrent 252-month prison
terms on each count and special assessments of $100 per count under 18 U.S.C.
§ 3013. Norman objected to the two sentences on the ground that “the
ammunition and gun count merge.” This appeal followed.
                                       II.
      Norman argues that his indictment violated the rule of Apprendi v. New
Jersey, that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490
(2000). As Norman concedes, his challenge to the indictment is foreclosed by
our decision in Stone. In that case, we held that the prior convictions requisite
to an enhancement under § 924(e) need not be submitted to the jury and proven
beyond a reasonable doubt. Stone, 306 F.3d at 243; accord United States v.
White, 465 F.3d 250, 254 (5th Cir. 2006). Apprendi’s charging rule does not
apply to the prior convictions requisite to a § 924(e) enhancement “because
§ 924(e)(1) does not create a separate offense but is merely a sentence
enhancement provision.” Stone, 306 F.3d at 243 (quoting United States v.
Affleck, 861 F.2d 97, 98 (5th Cir. 1988)). Accordingly, Norman’s appeal of the
district court’s denial of his motion to quash the indictment fails.


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                                  No. 14-20694
      Norman next argues that there was insufficient evidence to support a
guilty verdict on either of the two counts.       His sufficiency challenges are
preserved and we review them de novo, asking “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Meza, 701 F.3d 411, 418 (5th Cir. 2012) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
      Norman stipulated to being a previously convicted felon, and a rational
jury could have found beyond a reasonable doubt that he possessed a firearm
and ammunition. As to the firearm, two police officers testified that, while
chasing Norman on foot, they saw him reach into his jacket pocket and throw
a handgun into some bushes. Both officers also testified that they returned to
the bushes and located a .38 Smith & Wesson less than five minutes later. As
to the ammunition, one officer testified that, while searching Norman in
tandem with another officer, he saw the other officer reach into Norman’s
pants pocket and pull out five loose bullets. The evidence of possession was
sufficient to support both guilty verdicts.
      Norman’s challenge to the district court’s denial of his motion to suppress
his statement to police officers about finding the bullets at Starbucks also fails.
Norman’s statement—“I found those at Starbucks”—was made while he was
in custody and before police gave him Miranda warnings. But Miranda’s
procedural requirements—and the remedy of suppression when those
requirements are violated—apply only to “statements stemming from custodial
interrogation of the defendant.” United States v. Bennett, 626 F.2d 1309, 1311
(5th Cir. Unit B 1980). When Norman made the statement, officers had not
asked him any questions or otherwise directly communicated with him.
“Interrogation” can describe police conduct other than express questioning, but
only such conduct as “words or actions on the part of police (other than those
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                                No. 14-20694
normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Rhode
Island v. Innis, 446 U.S. 291, 301 (1980). Norman’s statement was responsive
to one officer’s comment to another, after having found the bullets in Norman’s
pocket: “Make sure you search him good . . . look what I found.” That is not
the sort of evocative comment that officers should have known would be
reasonably likely to elicit an incriminating response.     Because Norman’s
statement was not made in the context of custodial interrogation, the absence
of Miranda warnings did not require that the statement be suppressed.
      Finally, Norman argues that the district court could not impose separate
special assessments under 18 U.SC. § 3013 on his two convictions because the
two felon-in-possession counts reflect only a single offense. If Norman’s two
convictions indeed represent only a single offense, his sentences run afoul of
the Double Jeopardy Clause even though he was sentenced to concurrent terms
of imprisonment. See Rutledge v. United States, 517 U.S. 292, 301 (1996) (“As
long as § 3013 stands, a second conviction will amount to a second
punishment.”); United States v. Ogba, 526 F.3d 214, 236 n.52 (5th Cir. 2008)
(“Concurrent sentences imposed for a conviction on the offense and the lesser
offense are a ‘cumulative punishment’ that violates the double jeopardy
clause.”). “We review questions of multiplicity [for Double Jeopardy Clause
purposes] de novo.” United States v. Lankford, 196 F.3d 563, 577 (5th Cir.
1999).
      We have repeatedly held that multiple convictions under § 922(g)(1) for
simultaneous possession by a felon of multiple firearms—or a firearm and
ammunition—violate the Double Jeopardy Clause. Meza, 701 F.3d at 431–33;
United States v. Berry, 977 F.2d 915, 919–20 (5th Cir. 1992). In deciding
whether multiple items were possessed simultaneously, we have considered
whether only “one episode of possession” occurred. Meza, 701 F.3d at 432
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(quoting Berry, 977 F.2d at 918); cf. United States v. Hope, 545 F.3d 293, 297
(5th Cir. 2008) (“[T]he statute criminalizes a ‘course of conduct, not an act.’”).
The government argues that Norman did not possess the gun and bullets
simultaneously because he discarded the gun in the midst of a police chase,
while continuing to possess the bullets in his pocket until he was apprehended.
We conclude that this is an insufficient disjunction in Norman’s treatment of
the gun and bullets to constitute separate “episodes of possession.”
Accordingly, Norman’s separate sentences for his two convictions under
§ 922(g)(1) violate the Double Jeopardy Clause.
      There remains a question as to the proper relief. Norman objected only
to the two $100 special assessments below—not to the second conviction
itself—and so his challenge to the conviction is forfeited. See Ogba, 526 F.3d
at 232. Nevertheless, as the government commendably acknowledged at oral
argument, our cases do not support treating the conviction and sentence
separately when correcting a double jeopardy error. See id. at 240 (reversing
conviction); Hope, 545 F.3d at 298 (vacating both sentence and conviction even
though defendant raised challenge for first time on appeal); Meza, 701 F.3d at
433–34 (instructing district court to dismiss one conviction after raising double
jeopardy issue sua sponte).     Judicial economy also guides our decision to
address the conviction now rather than in an otherwise inevitable habeas
proceeding. See Meza, 701 F.3d at 434; United States v. Pineda-Ortuno, 952
F.2d. 98, 105 (5th Cir. 1992). Accordingly, we instruct the district court to
dismiss one of the two convictions at the government’s election and resentence
on the remaining conviction. The conviction not dismissed is deemed affirmed.
See Meza, 701 F.3d at 434 (Where both convictions are supported by sufficient
evidence, “[w]e may deem the conviction on the remaining count affirmed.”).




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