United States v. Alberto Esquivel , 425 F. App'x 387 ( 2011 )

Case: 10-40977 Document: 00511479829 Page: 1 Date Filed: 05/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 17, 2011
No. 10-40977
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALBERTO ESQUIVEL, also known as Alberto Esquivel-Juarez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-392-1
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
A jury convicted Alberto Esquivel of illegal reentry in violation of 8 U.S.C.
§ 1326 and of possession of a firearm by an illegal alien and possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and (5). He was
sentenced to three concurrent 76-month terms of imprisonment and three
concurrent two-year terms of supervised release. Esquivel filed a timely notice
of appeal.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-40977 Document: 00511479829 Page: 2 Date Filed: 05/17/2011
No. 10-40977
As Esquivel does not challenge his conviction or sentence for illegal
reentry, we affirm the district court’s judgment with respect to that offense. We
reject Esquivel’s contention, raised in order to preserve the argument for further
review, that under Jones v. United States, 529 U.S. 848 (2000); United States v.
Morrison, 529 U.S. 598 (2000); and United States v. Lopez, 514 U.S. 549 (1995),
§ 922(g) is unconstitutional on its face and as applied. As Esquivel concedes, his
argument is foreclosed by our precedent. See United States v. Daugherty, 264
F.3d 513, 518 (5th Cir. 2001); United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996).
Esquivel challenges his § 922(g) convictions and sentences, which were
based on possession of the same weapons, on the basis that they are
multiplicitous and violate double jeopardy. The Government concedes that our
decision in United States v. Munoz-Romo, 989 F.2d 757, 759-60 (5th Cir. 1993),
is controlling. Esquivel is correct that his convictions for being an illegal alien
in possession of a firearm and a felon in possession of a firearm violate his rights
against double jeopardy. See Munoz-Romo, 989 F.2d at 759-60. In light of
Munoz-Romo, we remand the case so that the district court may vacate one of
the convictions and resentence Esquivel. See id.AFFIRMED IN PART; REMANDED IN PART.
2