U.S. v. Hope

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 545 F.3d 293
• Docket Number: No. 07-60769.,07-60769.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny HOPE, Defendant-Appellant.
• Decision Date: 08 October 2008

545 F.3d 293 UNITED STATES of America, Plaintiff-Appellee,
v.
Danny HOPE, Defendant-Appellant. No. 07-60769. United States Court of Appeals, Fifth Circuit. October 8, 2008.

[545 F.3d 295]

Richard Terrell Starrett, Asst. U.S. Atty., Jackson, MS, for U.S.

Julie Ann Epps, Canton, MS, for Hope.

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.

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," or "equivalently `obvious,'"⁴ such that "the trial judge

545 F.3d 296

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."<sup>6</sup> 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, 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.

545 F.3d 297

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...