United States v. Leslie Padilla ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10137
Plaintiff-Appellee,
D.C. No.
v. 4:16-cr-00478-JGZ-LAB-5
LESLIE MARLENE PADILLA,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted December 17, 2018**
San Francisco, California
Before: GILMAN,*** PAEZ, and OWENS, Circuit Judges.
Leslie Marlene Padilla pleaded guilty to making false statements in
connection with the purchase of firearms, in violation of 18 U.S.C. § 922(a)(6),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
and making false statements in the records of a federal firearms licensee, in
violation of 18 U.S.C. § 924(a)(1)(A). Her sole argument on appeal is that the
charges in the indictment are multiplicitous, in violation of the Fifth Amendment’s
Double Jeopardy Clause. We review de novo a district court’s denial of a motion
to dismiss based on double jeopardy. United States v. Ziskin, 360 F.3d 934, 942
(9th Cir. 2003).
The Double Jeopardy Clause protects a defendant from multiple
punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). To
determine whether multiple counts in an indictment run afoul of that Clause, we
ask “whether each separately violated statutory provision ‘requires proof of an
additional fact which the other does not.’” United States v. McKittrick, 142 F.3d
1170, 1176 (9th Cir. 1998) (quoting Blockburger v. United States, 284 U.S. 299,
304 (1932)).
Padilla’s two offenses contain different elements, and neither offense is a
lesser-included offense of the other. The elements of 18 U.S.C. § 922(a)(6) are as
follows: (1) the seller was a licensed firearms dealer, importer, manufacturer, or
collector; (2) the defendant made a false statement or furnished or exhibited false
identification in connection with acquiring or attempting to acquire a firearm from
the seller; (3) the defendant knew that the statement or identification was false; and
(4) the false statement or identification was material, meaning that it had a natural
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tendency to influence, or was capable of influencing, the seller into believing that
the firearm could be lawfully sold to the defendant. 18 U.S.C. § 922(a)(6); 9th Cir.
Model Crim. Jury Instr. No. 8.58 (2010). In contrast, the elements of 18 U.S.C.
§ 924(a)(1)(A) are as follows: (1) the defendant knowingly made a false statement
or representation; and (2) the statement pertained to information required by law
(specifically, Title 18, United States Code, Part I, Chapter 44) to be kept in the
records of a person licensed as a firearms dealer, importer, manufacturer, or
collector. 18 U.S.C. § 924(a)(1)(A).
In Abramski v. United States, 573 U.S. 169 (2014), the Supreme Court noted
that these two statutes each require proof of an element that the other statute does
not:
[Section 924(a)(1)(A)] is broader than § 922(a)(6) in one respect: It does
not require that the false statement at issue be “material” in any way. At the
same time, § 924(a)(1)(A) includes an element absent from § 922(a)(6):
The false statement must relate to “information required by this chapter to
be kept in [a dealer’s] records.”
Id. at 191 (second alternation in original). This court had previously reached the
same conclusion in United States v. Buck, 548 F.2d 871 (9th Cir. 1977), holding
that the defendant’s multiplicity argument was without merit because “[s]ection
924(a) creates a separate statutory offense from that set forth in § 922(a)(6).” Id. at
876–77. Padilla fails to cite either of these cases in her brief. And despite
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correctly listing the elements of §§ 922(a)(6) and 924(a)(1)(A), Padilla incorrectly
asserts without any explanation that “the elements are the same.”
For the foregoing reasons, we conclude that the charges in the indictment
against Padilla are not multiplicitous. We therefore AFFIRM the judgment of the
district court.
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