United States v. Earnest Richardson , 439 F.3d 421 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3472
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United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal From the United States
* District Court for the District
Earnest Jesse Richardson, also * of Minnesota.
known as Ernest Jesse Richardson, *
also known as Torrence C. Epps, * [PUBLISHED]
*
Defendant - Appellant. *
*
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Submitted: June 23, 2005
Filed: March 2, 2006
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Before LOKEN, HEANEY, WOLLMAN, ARNOLD, MURPHY, BYE, RILEY,
MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit Judges.
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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 (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 (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
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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 offense); 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. Frankenberry, 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).
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