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United States v. Ballard

United States District Court, E.D. Texas, Sherman Division

January 16, 2018

UNITED STATES OF AMERICA
v.
JORDAN BALLARD

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         On appeal, Defendant, for the first time, raised the issue that his conviction and judgment against him violated United States v. Berry, 977 F.2d 915 (5th Cir. 1992), resulting in an agreed remand. The dispute now is whether Defendant can be sentenced to two counts of the indictment or just one count. Finding that the Government failed to establish by preponderance of the evidence that there were two criminal episodes, the Court finds that Defendant can only be sentenced to one count, because sentencing Defendant to two counts would violate Double Jeopardy.

         BACKGROUND

         On January 27, 2016, Defendant pleaded guilty to one count of felon in possession of a firearm (Count One), and four counts of felon in possession of ammunition (Counts Two through Five), all in violation of 18 U.S.C. § 922(g)(1). Following a two-day sentencing hearing, this Court sentenced Defendant to imprisonment for 120 months on each of Counts One, Two, and Three, to run consecutively, and imprisonment for 120 months on each of Counts Four and Five, to run concurrently; three years of supervised release on each of the counts, to run concurrently; and a $500 special assessment. On December 8, 2016, Defendant filed a notice of appeal. On May 15, 2017, Defendant and the Government filed at the Fifth Circuit a Joint Motion to Vacate and Remand to this Court for resentencing. Although the parties agree that a Berry error occurred in sentencing, the parties disagree on the number of counts for which Defendant may be resentenced.

         After remand, Defendant filed the Partially Opposed Motion to Dismiss Four (4) Multiplicitous Counts in the Indictment Which Violate the Double Jeopardy Clause of the United States Constitution (Dkt. #110). On August 28, 2017, the Government filed a response (Dkt. #117). On September 4, 2017, Defendant filed a reply (Dkt. #118). On September 6, 2017, the Court held a hearing on Defendant's motion to dismiss four counts of the indictment as multiplicitous. During that hearing, this Court raised the question of whether or not it could consider the facts presented during the sentencing hearing to support the Court's decision[1]. On September 12, 2017, the Government filed a supplemental response (Dkt. #121). On September 13, 2017, Defendant filed a supplemental reply (Dkt. #122).

         LEGAL STANDARD

         The Fifth Circuit has held that Congress did not intend for the simultaneous possession of a firearm and the possession of ammunition to be separate offenses. Berry, 977 F.2d at 919. While the Government may charge and try a defendant for the multiple offenses of being a felon in possession of ammunition and being a felon in possession of a firearm, there may not be simultaneous convictions and sentences. Id. at 920. A simultaneous conviction and sentence for the same criminal act would violate the double jeopardy clause. Id. The fact that a court may order the sentences to run concurrently does not change this result. Id.

         “In several unpublished decisions, [the Fifth Circuit] has quoted Berry to distinguish its outcome if the record ‘prove[d] that [the defendant] obtained the firearm and ammunition on different occasions.'” United States v. Meza, 701 F.3d 411, 433 (5th Cir. 2012) (quoting United States v. Castro, 227 F. App'x 386, 386 (5th Cir.2007)).

         ANALYSIS

         The issue in this case is whether Defendant can be sentenced on both the gun count and one ammunition count.[2] Admittedly, no one recognized that there was a Berry issue in this case, including the Government, original defense counsel, or the Court. On appeal, appellate defense counsel discovered the issue, which resulted in an agreement to remand. Defendant takes the position that he may only be sentenced on one count. The Government takes the position that Defendant may be sentenced on the gun charge (Count One) and one of the ammunition counts (Count Two).

         Defendant was convicted under 18 U.S.C. § 922(g)(1) for simultaneous possession of a firearm and ammunition, both of which were found during the single police search of Defendant's property. On April 21, 2015, Defendant shot and killed Justyn Simmons in front of Defendant's residence at 607 W. Monterey in Denison, Texas, using a 9mm handgun that contained TulAmmo brand 9mm Luger ammunition. Defendant used one round of the ammunition to shoot and kill Justyn Simmons, and the remaining three rounds of ammunition to shoot at Victor Simmons. This ammunition was the object of Counts Two through Five. During the investigation of that shooting on April 21, 2015, a Harrington & Richardson, Model 922, .22 caliber revolver, serial number L18952, was recovered inside the residence of 607 W. Monterey, pursuant to a search warrant. The firearm was recovered inside the closet of Defendant's bedroom.

         The indictment alleges that Defendant possessed both the firearm and ammunition on or about April 21, 2015 (Dkt. #1). Defendant entered a plea of guilty to all counts of the indictment without a plea agreement. The written factual basis restates the language of the indictment that Defendant possessed both the firearm and ammunition on or about April 21, 2015 (Dkt. #27). At his plea hearing before the Magistrate Judge, when asked to say in his own words what he did to support a factual basis for the plea, Defendant stated as follows: “I possessed a gun and ammo after I had been convicted of a felony” (Dkt. #79 at p. 17). The Court accepted Defendant's plea of guilty and adjudged Defendant guilty as to Counts One through Five of the indictment (Dkt. #30). The Government did not charge Defendant with receiving or possessing the gun and ammunition at some earlier date. Defendant was charged in each count with possession on or about April 21, 2015. A review of the record up to Defendant's conviction demonstrates a Berry problem because there is no way to distinguish between the gun and ammunition all being seized on the same date, April 21, 2015. See Meza, 675 F.3d at 431- 34 (Double jeopardy violation where defendant was convicted of possession of a firearm that was found in his shed and possession of two boxes of ammunition that were found in his house on the same date). The Government simply did not charge Defendant with possession of firearms and ammunition on different occasions. However, in this case, the Government asserts that at the sentencing hearing, Defendant testified that the two firearms were obtained on different dates. The Court will assume for this analysis that the Court can utilize the evidence offered at the sentencing hearing[3] to resolve the Berry issue.

         At the sentencing hearing there was evidence to support that the gun in Count One, which was found in Defendant's home, and the gun used by Defendant in the shooting were acquired at different times and for different purposes. Under Fifth Circuit law, this evidence would support Defendant being sentenced to multiple firearm counts. The problem in this case is that the Government did not charge Defendant with possession of the second gun due to the fact that the firearm was never found and was disposed of by Defendant. Instead, the Government charged Defendant with possession of the shells recovered from the unrecovered firearm after the shooting. Defendant asserts that there is no evidentiary support to establish when the ammunition was acquired by Defendant. The Court agrees. At the time of sentencing, no one was aware of the Berry issue, and no questions were asked of Defendant or any other witness to establish when the ammunition charged in Counts Two through Five was acquired.[4]

         The Government asserts that the Court can infer when the ammunition was acquired from the fact that there was evidence to establish that the firearms in question were acquired on different occasions and therefore the ammunition was also acquired on different occasions. The Government cites Everett to support its position. United States v. Everett, 123 F.3d 631, 2000 WL 1701776, at *7 (5th Cir. 2000). Although Everett did find, under a plain error review, it was permissible to infer that the defendant obtained the ammunition at separate times, the Court finds that those facts are distinguishable from the facts of this case. In Everett, during an earlier search invited by defendant's spouse, the officer found loose ammunition of varying caliber in a drawer. Id. After a search warrant was issued and a search ensued, the officer discovered the same loose ammunition and also “unearthed” three boxes of 9mm ammunition in the bottom drawer of the same chest of drawers in which the loose ammunition was located. Id. The Fifth Circuit found that it was permissible to infer that defendant obtained the ammunition at separate times because the officer found additional ammunition not present during the earlier visit. Id. The facts of this case are very different.[5] The firearm and the ammunition were all discovered the same day. The Government argues that common sense tells us that correlating ammunition was purchased at or near the time each firearm was acquired. The ...


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