UNITED STATES of America, Plaintiff-Appellee, v. Earnest Jesse RICHARDSON, also known as Ernest Jesse Richardson, also known as Torrence C. Epps, Defendant-Appellant

United States Court of Appeals for the Eighth Circuit2006-03-02No. No. 04-3472

439 F.3d 421

Summary · law.co

Holding. The court vacated Section V of its prior panel opinion and remanded for the district court to merge the two convictions into a single conviction under 18 U.S.C. § 922(g), vacate the original sentence, and resentence the defendant based on one count.

Earnest Jesse Richardson was convicted of two separate counts arising from a single incident of firearm possession on February 4, 2003—one count for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and another for being a drug user in possession of a firearm under 18 U.S.C. § 922(g)(3). Richardson argued these convictions should have been merged into a single offense because they stemmed from the same act of possession. A prior panel decision had upheld the multiple convictions based on precedent established in United States v. Peterson.

The en banc court reconsidered the issue and overruled Peterson, holding that Congress intended each incident of firearm possession to constitute a single prosecutable unit regardless of how many statutory classifications a defendant satisfies. The court aligned itself with every other federal circuit that had addressed this question, concluding that when a single act of possession violates multiple provisions of 18 U.S.C. § 922(g), only one conviction should result. The court found that Richardson's simultaneous status as both a convicted felon and drug user during a single possession incident should not support multiple convictions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a single act of firearm possession can support separate convictions under both 18 U.S.C. § 922(g)(1) (felon in possession) and § 922(g)(3) (drug user in possession)
Definition of the unit of prosecution under federal firearms statutes
Whether multiple statutory classifications triggered by one act of possession constitute multiple offenses or one offense

Procedural posture

After the panel issued an initial opinion affirming multiple convictions on November 4, 2005, the defendant petitioned for rehearing en banc, which the government conceded was appropriate, and the court granted the petition.

Authorities cited

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Opinion · public domain

majority opinion

PER CURIAM.

We issued a panel opinion in this matter on November 4, 2005. The defendant filed for rehearing en banc on the limited issue set forth in Section V of that opinion, namely, whether a defendant, based upon a single act of possession, can be convicted and punished under both 18 U.S.C. § 922(g)(1) (felon in possession) and (g)(3) (drug user in possession). The government conceded that rehearing is appropriate and joined the defendant in his request for rehearing en banc. For the reasons set forth below, we grant the petition for rehearing and vacate Section V of our prior opinion. This grant of rehearing does not affect the other sections of our prior opinion.

We briefly summarize the facts relevant to the issue before the en banc court. Richardson was convicted of a single incident of possession of a firearm on February 4, 2003. At the time he possessed the firearm he was both a convicted felon and a drug user. The government charged Richardson in two separate counts, that is, one count of being a felon in possession of a firearm on February 4, 2003, and a separate count of being a drug user in possession of a firearm on the same date. Richardson argued that the counts of conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and being a drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3) arose out of a single act of possession of a firearm and, therefore, should have been merged at sentencing into a single offense. The panel decision in this case affirmed the multiple convictions based on our controlling precedent in United States v. Peterson, 867 F.2d 1110 (8th Cir.1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

In Peterson, we held that separate convictions for § 922(g)(1) and § 922(g)(3) arising out of a single act of firearm possession were not multiplicitous. We now overrule Peterson and join all the other Circuits that have addressed this issue to hold that Congress intended the “allowable unit of prosecution” to be an incident of possession regardless of whether a defendant satisfied more than one § 922(g) classification, possessed more than one firearm, or possessed a firearm and ammunition. See Bell v. United States, 349 U.S. 81, 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (describing the unit of prosecution test); see also, United States v. Verrecchia, 196 F.3d 294, 297-98 (1st Cir.1999) (applying Bell to hold that a felon’s possession of multiple firearms comprised a single offense); United States v. Dunford, 148 F.3d 385, 388-90 (4th Cir.1998) (applying Bell to hold that the possession of multiple firearms and ammunition by a felon who was also an illegal drug user comprised a single offense); United States v. Cunningham, 145 F.3d 1385, 1398-99 (D.C.Cir.1998) (applying Bell to hold that the possession of multiple firearms comprised only one offense barring proof that the firearms were obtained at different times or stored separately); United States v. Keen, 104 F.3d 1111, 1118-20 (9th Cir. 1996) (applying Bell to hold that a felon’s possession of a firearm and ammunition comprised only one offense); United States v. Hall, 77 F.3d 398, 402 (11th Cir.1996) (holding that a felon’s simultaneous possession of a firearm and ammunition comprised only one offense); United States v. Munoz-Romo, 989 F.2d 757, 758-59 (5th Cir.1993) (holding that the possession of a firearm by an illegal alien who was also a felon comprised only one offense); United States v. Throneburg, 921 F.2d 654, 657 (6th Cir.1990) (holding that a felon’s simultaneous possession of a firearm and ammunition comprised only one offense); United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir.1983) (applying Bell to hold that the receipt of a firearm and ammunition comprised only one of fense); United States v. Valentine, 706 F.2d 282, 292-94 (10th Cir.1983) (applying Bell to hold that the simultaneous possession of more than one weapon constituted only one offense); United States v. Frank-enberry, 696 F.2d 239, 244-45 (3d Cir. 1982) (applying Bell to hold that the receipt of multiple firearms comprised only one offense); United States v. Oliver, 683 F.2d 224, 232-33 (7th Cir.1982) (applying Bell to hold that the simultaneous receipt of a firearm and ammunition comprised only one offense).

We remand to the district court to vacate the sentence, merge the counts of conviction into one count, and resentence the defendant based on a single conviction under 18 U.S.C. § 922(g).