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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