[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-2054

UNITED STATES,

Appellee,

v.

ANTHONY S. DESTEFANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Stahl and Lipez, Circuit Judges.

Walter F. McKee and Lipman & Katz, P.A. on brief for appellant.

Jay P. McCloskey, United States Attorney, and F. Mark Terison, Senior Litigation Counsel, on Motion to Vacate and Remand to the District Court, for appellee.

NOVEMBER 22, 1999

Per Curiam. In this direct criminal appeal, the appellant, who was convicted of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g) and 924(a)(2), contends that the counts in question were multiplicitous and that the district court plainly erred when it entered judgment on and sentenced him for both counts of conviction. The appellant also asserts that the district court plainly erred when it directed the probation officer to establish a payment schedule for the criminal monetary penalties imposed on him. The government has essentially conceded that appellant is correct by moving this court to vacate one count of conviction and to remand for resentencing on the remaining count.

In light of appellant's arguments and the government's motion, we direct that appellant's conviction and sentence on Count I be vacated as multiplicitous. See United States v. Rivera, 77 F.3d 1348, 1351, 1352 (11th Cir.) (per curiam), cert. denied, 517 U.S. 1250 (1996); United States v. Horodner, 993 F.2d 191, 193 (9th Cir. 1993); United States v. Jones, 533 F.2d 1387, 1391-92 (6th Cir. 1976) (all agreeing that the continuous and uninterrupted possession of the same firearm by a felon constitutes a single chargeable offense); United States v. Gore, 154 F.3d 34, 47-48 (2d Cir. 1998) (finding multiplicitous convictions and sentences to be plain error and correcting the error by vacating one conviction).

We affirm the conviction on Count II. Because the district court did not impose fully concurrent sentences on the two counts of conviction (which involved essentially the same underlying conduct), we vacate the sentence on Count II in its entirety and remand for resentencing de novo. See United States v. Rodriguez, 112 F.3d 26, 28 (1st Cir.) (noting that, in multi-count convictions based on the same course of conduct, the sentences form a "package" that work together, so that if one is vacated on appeal, the trial judge ought to be free to reconsider "how the pieces fit together"), cert. denied, 118 S.

Ct. 237 (1997); cf. United States v. Blasini-Lluberas, 169 F.3d 57, 68 (1st Cir. 1999) (declining to consider alleged sentencing errors after vacating certain convictions for insufficient evidence where, on remand, the district court would be able to reevaluate and recalculate the sentence in light of the court's rulings) (both citing United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989)). We note that any new sentence providing for a payment schedule for any fine or special monetary assessment must comply with this court's recent decision in United States v. Merric, 166 F.3d 406, 409 (1st Cir. 1999) (holding that a sentencing court may not delegate the task of setting a payment schedule for criminal fines to the probation officer).

The judgment of conviction and the sentence on Count I of the indictment are vacated. The judgment of conviction on Count II is affirmed. The sentence on Count II is vacated and remanded for resentencing de novo in accordance with this opinion.