United States v. Castro , 227 F. App'x 386 ( 2007 )


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  •                                                                United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                      May 10, 2007
    Charles R. Fulbruge III
    Clerk
    No. 05-41717
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JAIME CASTRO,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:04-CR-2524
    --------------------
    Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Jaime Castro appeals his convictions and sentences for the
    simultaneous possession of a firearm and of ammunition.             He argues
    that       the   convictions   are   multiplicitous    and   violate    double
    jeopardy.        The Government asserts that Castro waived this argument
    by failing to file a pretrial motion challenging the indictment.
    The Government also argues that Castro’s argument is without merit
    because his sentences are concurrent and because it can be inferred
    that Castro obtained the firearm and ammunition on different
    occasions.
    *
    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    this opinion should not be published and is not precedent except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.
    No. 05-41717
    -2-
    Generally, a defendant must file a pretrial motion challenging
    duplicitous charges to preserve the issue for appeal.               United
    States v. Dixon, 
    273 F.3d 636
    , 642 (5th Cir. 2001); FED. R. CRIM. P.
    12(b)(2).       However,     a    complaint   challenging   multiplicitous
    sentences may be raised for the first time on appeal.           Dixon, 
    273 F.3d at 642
    .     Simultaneous convictions and sentences for the same
    criminal act involving possession of a firearm and possession of
    ammunition violate double jeopardy.           United States v. Berry, 
    977 F.2d 915
    , 919 (5th Cir. 1992).          The fact that the district court
    ordered Castro’s sentences to run concurrently does not change this
    result.    See 
    id. at 920
    ; United States v. Kimbrough, 
    69 F.3d 723
    ,
    729 (5th Cir. 1995).        Further, there is nothing in the record to
    prove that Castro obtained the firearm and ammunition on different
    occasions.
    Castro also argues that the district court erred in failing to
    impose his federal sentence to run concurrently with his not yet
    imposed state sentence and in failing to give him credit for time
    served in state custody.            It is unnecessary to address these
    issues.
    Accordingly, we VACATE Castro’s sentences and REMAND the
    matter    for   dismissal    of   the   duplicitous   conviction   and   for
    resentencing.
    

Document Info

Docket Number: 05-41717

Citation Numbers: 227 F. App'x 386

Judges: Clement, Dennis, Jolly, Per Curiam

Filed Date: 5/10/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023