Friday, August 28, 2009

Felon’s Possession of Gun With Ammo Supports Conviction on One Count Only

Holding that possession of a firearm with ammunition is a "single unit of prosecution" under the felon-in-possession statute, 18 U.S.C. § 922(g), the Court in United States v. Tann, No. 08-2378, notices plain error in a judgment imposing a concurrent prison term and $100 special assessment on each of two counts charged against a Delaware man convicted of possessing (1) a handgun and (2) twenty-five rounds of ammunition. Along the way, the Court declines to follow its own 2002 decision concerning such error's effect on "substantial rights," concluding that pre-2002 Supreme Court precedent had already dictated a different conclusion.

With respect to the proper construction of 18 U.S.C. § 922(g), the Court explains in an opinion by Judge Chagares 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." Finding the statute ambiguous in its prohibition upon the possession of "any" firearm or ammunition, the Court holds that the defendant’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)."

The Court then confronts two previous decisions it acknowledges to be in "direct conflict" regarding whether dual punishments of the kind here affect a defendant’s "substantial rights," as required to support correction on plain error review. In 2008, the Court held in United States v. Miller (Blog post here) that the potential adverse collateral consequences resulting from each punishment, and the extra special assessment, make out the requisite effect. In its 2002 decision in United States v. Gricco, however, the Court had found no such effect when the district court erroneously failed to merge two convictions. Gricco’s rationale was that the "only immediate practical effects of the concurrent sentences" were "special assessments totaling $700 for each defendant."

Ordinarily, the Court’s Internal Operating Procedure 9.1 directs that the earlier Gricco decision be treated as controlling because it was decided first. But this week’s decision in Tann faults Gricco for not following, or even mentioning, two Supreme Court cases predating it. The Court therefore refuses to be bound by Gricco -- a decision authored by then Judge Alito -- and instead follows Miller, which it finds to have followed the high court’s precedents. Confronting IOP 9.1, the Court says that a "panel of our Court may decline to follow" a prior decision "without the necessity of an en banc decision whether the conflicting Supreme Court decision was rendered before or after our prior decision."

Concluding that the judgment imposing dual punishments on the same offense seriously affected the fairness and integrity of the proceedings, the court remands with instructions "to vacate the sentence on one of Tann’s convictions under 18 U.S.C. § 922(g) and to merge the two convictions under § 922(g) into one conviction."

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