45 F.3d 431 (6th Cir. 1994), 93-4322, U.S. v. Sanders

• Citation: 45 F.3d 431
• Party Name: UNITED STATES of America, Plaintiff-Appellant, v. Lummie SANDERS, Defendant-Appellant.
• Case Date: December 22, 1994
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

Page 431

45 F.3d 431 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellant,

v.

Lummie SANDERS, Defendant-Appellant.

Nos. 93-4322, 94-3021.

United States Court of Appeals, Sixth Circuit

December 22, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court, for the Northern District of Ohio; No. 93-00184; David D. Dowd, Jr., Judge.

N.D.Ohio

AFFIRMED IN PART, VACATED IN PART, REMANDED.

Before: MARTIN and BATCHELDER, Circuit Judges, and COHN, District Judge. ^[*]

PER CURIAM.

Counts One and Three of the indictment in this case charged the appellant, Lummie Sanders, with being a felon in possession of a firearm, in violation of 18 U.S.C.A. § 922(g)(1) (West Supp.1994). Count Two charged Sanders with making a false statement in the acquisition of a firearm, in violation of 18 U.S.C.A. § 922(a)(6) (West Supp.1994). At trial, the government sought to prove that in late 1992, Sanders, a convicted felon, pawned a firearm, redeemed the firearm, and then pawned the firearm again, and that in redeeming the firearm, Sanders falsified a Bureau of Alcohol, Tobacco, and Firearms (ATF) Form. A jury convicted Sanders on all counts. The government asked that the district court sentence Sanders under the Armed Career Criminal Act (ACCA), 18 U.S.C.A. § 924(e) (West Supp.1994), based on Sanders's three prior felony convictions. The district court declined and instead sentenced Sanders according to the United States Sentencing Guidelines.

On appeal, Sanders argues that there was insufficient evidence for conviction, that the district court should have merged the felon-in-possession convictions, and that the district court erred in calculating his offense level under the sentencing guidelines. The government cross-appeals the district court's refusal to sentence Sanders as an armed career criminal. We affirm in part, reverse in part, and remand the case to the district court.

I

We first address Sanders's contention that the district court should have merged the two felon-in-possession convictions because they encompassed a single course of action. The government concedes that a person may not be convicted twice for continuous and uninterrupted possession of the same weapon. See United States v. Jones, 533 F.2d 1387, 1389-92 (6th Cir.1976),cert. denied, 431 U.S. 964 (1977). As Sanders points out, the government's theory of proof was that Sanders had constructive possession of the firearm in the pawnshop and therefore had continuous possession of the gun at all times relevant to this prosecution. We hold that under the facts of this case and the government's theory of prosecution, the felon-in-possession convictions are multiplicitous. Cf. United States v. Dudley, 779 F.Supp. 1581 (D.Kan.1991). We see no reason for a new trial, because Sanders suffered no prejudice. Moreover, Sanders does not request a new trial. Therefore, we will simply vacate the conviction upon Count Three. See United States v. Hebeka, 25 F.3d 287, 291 (6th Cir.1994) (prescribing vacation as proper remedy for multiplicitous counts).

II

The standard for reviewing a challenge to the sufficiency of the evidence is "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." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Sanders contends that the evidence was insufficient to prove he committed the crimes alleged. This claim is based on the pawnshop owner's inability to make an in-court identification of Sanders.

We find the evidence sufficient to prove Sanders committed the crimes charged in Counts One and Two. The pawn ticket and the ATF form were signed with the name "Lummie Sanders." The physical description of the man who pawned the gun matches the description of Sanders on his driver's license. The ATF form lists the transferee's birth date as 2/25/47...