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Sixth Circuit: Only One Conviction May Result Under § 922(g) for Single Incident of Firearm Possession

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that only one conviction may result under 18 U.S.C. § 922(g) for a single incident of firearm possession, even though the defendant may belong to more than one disqualified class.

Joshua Grant shot his ex-girlfriend after a night of arguing at her apartment. He later pleaded guilty to two counts of violating § 922(g) for unlawfully possessing a firearm—one for being a convicted felon and the other for being a domestic violence misdemeanant. The U.S. District Court for the Northern District of Ohio entered judgment on both convictions and imposed concurrent 120-month sentences. Grant appealed, arguing, inter alia, that the district court’s entry of multiple § 922(g) convictions and sentences for the same incident of firearm possession was plain error.

The Court observed “[t]he Double Jeopardy Clause of the U.S. Constitution provides that no person may be ‘twice put in jeopardy’ for the same offense.” U.S. Const. amend V. The Double Jeopardy Clause protects against not only a second trial for the same offense but also against multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684 (1980).

However, “current jurisprudence allows for multiple punishments for the same offense provided the legislature has clearly indicated its intent to so provide, and recognizes no exception for necessarily included, or overlapping offenses.” White v. Howes, 586 F.3d 1025 (6th Cir. 2009).

The Sixth Circuit has not “expressly addressed … whether Congress intended to permit multiple punishments for violations of two or more subdivisions of § 922(g) based on a single incident of firearm possession,” United States v. Ocampo, 919 F.Supp. 2d 898 (E.D. Mich. 2013), the Sixth Circuit has recognized, in an unpublished decision, that “the subdivisions of § 922(g) do not support separate sentences for a single criminal act.” United States v. Modena, 430 F. App’x 444 (6th Cir. 2011).

The Court noted that the First, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits have all unanimously agreed that § 922(g) does not permit multiple punishments based on the statute’s different subdivisions for a single incident of firearm possession. United States v. Parker, 508 F.3d 434 (7th Cir. 2007); United States v. Richardson, 439 F.3d 421 (8th Cir. 2006); United States v. Shea, 211 F.3d 658 (1st Cir. 2000); United States v. Dunford, 148 F.3d 385 (4th Cir. 1998); United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997); United States v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993); United States v. Winchester, 916 F.2d 601 (11th Cir. 1990).

The Government may “pursue multiple theories of violation at trial,” but “only one conviction may result under § 922(g) for a single incident of possession, even though the defendant may belong to more than one disqualified class.” Parker.

The Court ruled that § 922(g) does not permit a court to “impose multiple punishments on a defendant who commits one act of possession yet is both a felon and domestic-violence misdemeanant.” Modena. Thus, the Court held that the district court committed plain error in doing so.

Accordingly, the Court remanded with instructions to vacate Grant’s sentence on one of the § 922(g) counts and to merge the two counts of conviction into one. See: United States v. Grant, 15 4th 452 (6th Cir. 2021). 

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Related legal case

United States v. Grant

 

 

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