United States v. Saldua , 120 F. App'x 553 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-40852
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOSES C. SALDUA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(2:03-CR-393-1)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Moses C. Saldua appeals his guilty-plea convictions for the
simultaneous possession of a firearm and ammunition under 18 U.S.C.
§ 922(g)(1), contending the convictions are multiplicitous and
violate double jeopardy. The Government does not seek to rely on
Saldua’s claimed waiver of appeal; therefore, this court will not
enforce it. See United States v. Rhodes, 253 F.3d 800, 804 (5th
Cir. 2001).
*
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this opinion should not be published and is not precedent except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.
As the Government concedes, 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
district court’s ordering Saldua’s sentences to run concurrently
does not change this result. Id. at 920; United States v.
Kimbrough, 69 F.3d 723, 729 (5th Cir. 1995), cert. denied, 517 U.S.
1157 (1996). Accordingly, we VACATE Saldua’s sentences and REMAND
for dismissal of one of the duplicitous convictions, at the
election of the Government, and for resentencing.
VACATED AND REMANDED
2