U.S. v. Tann

• Citation: 577 F.3d 533
• Decision Date: 24 August 2009
• Docket Number: No. 08-2378.,08-2378.
• Parties: UNITED STATES of America v. Brandon TANN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

577 F.3d 533

UNITED STATES of America v. Brandon TANN, Appellant.

No. 08-2378.

United States Court of Appeals, Third Circuit.

Argued March 10, 2009.

Filed: August 24, 2009.

Edson A. Bostic, Federal Public Defender, Daniel I. Siegel (Argued), Legal Research and Writing Attorney, Office of the Federal Public Defender, Wilmington, DE, Counsel for Appellant.

Colm F. Connolly, United States Attorney, Shawn A. Weede (Argued), Assistant United States Attorney, Wilmington, DE, Counsel for Appellee.

Before FUENTES, CHAGARES, and ALDISERT, Circuit Judges.

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Brandon Tann was convicted on two counts of violating the felon-in-possession statute, 18 U.S.C. § 922(g)(1), for the illegal possession of a firearm and ammunition. On appeal, Tann contends that because the firearm and ammunition were possessed simultaneously, he should have been convicted and sentenced on only one violation of § 922(g)(1). For the reasons that follow, we will affirm in part and remand in part.

I.

The facts pertinent to this appeal are undisputed. On April 11, 2007, officers with the Wilmington Police Department received information that Tann, an individual with whom the officers were familiar, was in possession of a handgun at the 1100 block of A Street. Responding officers observed Tann at that location. When the officers exited their vehicles in full uniform, Tann ran into a residence at 1004 A Street, and closed the door behind him.

The officers followed Tann into the residence and up its stairs. When police reached the top of the stairs, Tann exited a bathroom. Police ordered Tann to the ground and placed him in custody. The Presentence Report ("PSR") describes the events that followed:

A search of the bathroom was conducted where officers located a black .9mm Taurus handgun, Serial Number TQH07238, with duct tape on the bottom of the magazine. One brass Luger .9mm round was found in the chamber and ten Luger .9mm rounds were found in the magazine. After waiving his Miranda rights, the defendant stated the gun was not his, but he had some ammunition in his pocket. Additionally, the defendant stated he had just flushed two bags of marijuana down the toilet. Thereafter, an officer recovered 14 .9mm rounds of ammunition from a clear plastic bag in Mr. Tann's pocket. The ammunition found in the defendant's pocket and the ammunition from the .9mm Taurus firearm were identical.

SR ¶ 7.

Tann was charged with two violations of § 922(g)(1).¹ Count One charged that on April 11, 2007, Tann unlawfully possessed a .9 mm handgun. Count Two charged that on April 11, 2007, Tann unlawfully possessed 14 rounds of .9 mm ammunition. On October 15, 2007, Tann entered a guilty plea to one count of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition, both in violation of 18 U.S.C. §§ 922(g)(1). At sentencing, the District Court imposed a 57-month term of imprisonment on the possession of a firearm conviction (Count One) and a concurrent sentence of 57 months of imprisonment on the possession of ammunition conviction (Count Two). Pursuant to 18 U.S.C. § 1303, the District Court imposed special assessments of $100.00 on each count. This appeal followed.

II.

Tann contends that his two convictions for violating 18 U.S.C. § 922(g) constitute a single unit of prosecution, and that the District Court erred in entering judgments of conviction and sentences on both counts.² Tann, however, failed to raise this argument before the District Court. Federal Rule of Criminal Procedure 52(b) grants reviewing courts limited authority to correct errors not timely raised and prescribes a plain error standard of review in these circumstances. See United States v. Olano, 507 U.S. 725, 731, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (noting that Rule 52(b) is only "to be `used sparingly'" and "to correct only `particularly egregious errors'") (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). The standard set forth in Rule 52(b) requires that "[t]here must be an `error' that is `plain' and that `affect[s] substantial rights.'" Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting Rule 52(b) (last alteration in original)). Further, "Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quotations marks, citations, and alterations omitted).

A.

We first consider whether the District Court's entry of separate convictions and sentences for simultaneous possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) constituted "error." See Olano, 507 U.S. at 732-33, 113 S.Ct. 1770 (noting that "[d]eviation from a legal rule" constitutes "error" under Rule 52(b)). This, in turn, requires us to determine "`[w]hat Congress has made the allowable unit of prosecution'" for purposes of § 922(g)(1). See Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952)).

Our starting point is the Supreme Court's decision in Bell v. United States. In Bell, as in this case, the Supreme Court considered whether multiple violations of a statute, occurring in a single transaction, supported multiple convictions under the statute. The specific issue in Bell was whether two offenses or only one offense occurred under the Mann Act, 18 U.S.C. § 2421, where the defendant transported two women across state lines on the same trip and in the same vehicle. The Mann Act made it a felony to transport in interstate commerce "`any woman or girl for the purpose of prostitution.'" Bell, 349 U.S. at 82, 75 S.Ct. 620 (quoting § 2421) (emphasis added). Analyzing § 2421, the Court found no clear statement of intent as to the allowable unit of prosecution and commented that Congress surely could have "defin[ed] what it desire[d] to make the unit of prosecution." Id. at 83, 75 S.Ct. 620. The Court then determined that "[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity" for the defendant. Id. Accordingly, the Court further determined that when Congress fails to set the unit of prosecution "clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Id. at 84, 75 S.Ct. 620. Applying this rule to the facts before it, the Court held that only one offense occurred under the Mann Act. See id. at 82-84, 75 S.Ct. 620.

This Court has not yet addressed whether the simultaneous possession of a firearm and ammunition constitutes a single unit of prosecution under § 922(g)(1). However, we do not write on a blank slate.

In United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir.1982), we held that the simultaneous receipt of more than one weapon cannot support multiple convictions under 18 U.S.C. § 922(h),³ the predecessor to the current version of § 922(g)(1). There, we acknowledged that our holding was in accord with every other court that had considered the issue and that "[a]ll of these decisions are based on the application of the rule of lenity as expressed in Bell ...." Id. at 245. We noted that "as in Bell, Congress could have defined the offense in such a way as to make the offender liable to cumulative punishment for simultaneous action," but has chosen not "to do so in unambiguous language." Id. As a result, applying Bell and other precedent, we concluded "that simultaneous receipt of more than one weapon covered by section 922(h)(1) supports conviction for only one offense." Id.

In United States v. Marino, 682 F.2d 449 (3d Cir.1982), we held that the simultaneous possession of several firearms by a convicted felon constitutes a single offense under the former 18 U.S.C. § 1202(a)⁴ absent a showing that the weapons were separately stored or acquired. Id. at 455. There, we found uncertainty as to the unit of prosecution intended by Congress for violations of § 1202(a) because of the ambiguous use of the word "any" preceding the object of the offense. Id. at 454. We observed that "[i]n many other instances in which the word `any' was used in a statutory definition of the unit of prosecution ... the statute has been found ambiguous." Id. (citing Bell, 349 U.S. at 81, 75 S.Ct. 620); see also United States v. Coiro, 922 F.2d 1008, 1014 (2d Cir.1991) (noting that "the word `any' has typically been found ambiguous in connection with the allowable unit of prosecution" (quotation marks and citations omitted)). Finally, we noted that our holding was in agreement "with all the other Circuits which have addressed this question." Marino, 682 F.2d at 454.

The language of the current § 922(g) — and, in particular, the use of the word "any" — is consistent with, and equally ambiguous as, the then-effective § 922(h) and § 1202(a) addressed in Frankenberry and Marino, respectively. We apply the rationale of those cases as well as that of Bell to hold that Tann's possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under § 922(g)(1). In so holding, we join all of our sister courts of appeals that have addressed this issue and are in agreement that the allowable unit of prosecution under § 922(g) is the incident of possession, regardless of whether a defendant possessed more than one firearm, or possessed a firearm and ammunition.⁵ As a result, we conclude that the District Court erred in convicting and sentencing Tann on both counts charged under § 922(g)(1).

B.

Pursuant to Rule 52(b), however, we may not reverse for error alone,...