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7th Circuit rules on multiplicitous convictions

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The 7th Circuit Court of Appeals encountered for the first time the issue of whether a single incident of firearm possession can support multiple convictions under United States Code when the defendant is included in more than one class of people who are disqualified under the statute from possessing firearms.

This issue had been addressed in other Circuits, which were unanimous in agreement that USC 922(g) cannot support multiple convictions based on a single firearm possession because prosecution is based on possession, not the defendant fitting the definition of persons not allowed to possess a firearm.

Jesse James Parker III raised four challenges to his conviction and sentence of making a false statement on a federal firearms form, being a felon in possession of a firearm, and being an illegal drug user in possession of a firearm: his trial violated the Speedy Trial Act, his firearm possession convictions are multiplicitous, that he received ineffective assistance of counsel, and his term of supervised release was imposed in violation of United States v. Booker, 543 U.S. 220 (2005).

In U.S.A. v. Jesse James Parker III, No. 05-2798, the 7th Circuit affirmed the District Court's judgment except on the multiplicitous firearm convictions. Because Parker didn't raise this objection in District Court, the court's review is for plain error.

Parker was sentenced to concurrent prison terms on the firearm convictions but was ordered to pay an additional $100 special assessment for the second firearm possession conviction, something the court has held is not sufficient to warrant correction under the plain-error standard. However, based on United States Supreme Court precedent and other Circuit rulings, the 7th Circuit is overruling its previous decision on the issue. The Supreme Court has rejected the argument that a concurrent sentence with a small fee is too insignificant to warrant vacating a multiplicitous conviction, Rutledge v. United States, 517 U.S. 292, 302 (1996). The Rutledge court concluded that one of the multiplicitous convictions must be vacated, despite the lack of a multiplicity objection at sentencing.

The court remands this case to the District Court with the instructions to vacate the sentence on one of the U.S.C. 922(g) convictions and merge the two 922(g) counts into one.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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