United States v. McDowell
Opinion of the Court
MEMORANDUM
The district court did not violate McDowell’s Sixth Amendment rights.
McDowell did not allege a flaw in his indictment before trial. He therefore waived his right to object to the indictment, and we cannot review a claim that the indictment was multiplicitous — even for plain error. See United States v. Smith, 866 F.2d 1092, 1094-95 (9th Cir. 1989). But McDowell also challenges his convictions as multiplicitous. And while he did not preserve this objection, we can review this claim for plain error. See United States v. Smith, 424 F.3d 992, 1000 (9th Cir. 2005). We conclude that defendant’s claim meets the three-part test for plain error laid out in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The error was plain because a defendant who possesses multiple firearms cannot be convicted on more than one felon-in-possession count— absent evidence that the defendant acquired the firearms at different times and places. See United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam); United States v. Wiga, 662 F.2d 1325, 1336 (9th Cir. 1981).
We review for plain error McDowell’s claim that the sentence of 175 months violated the statutory maximum sentences for Counts I, II, III and VII. See United States v. Morris, 827 F.2d 1348, 1352 (9th Cir. 1987) (issues not raised below are reviewed for plain error). Because the sentence imposed did not exceed the statutory maximum of the count carrying the longest sentence, it did not substantially affect his rights or constitute a “miscarriage of justice.” McDowell therefore cannot satisfy the plain error standard. Olano, 507 U.S. at 736, 113 S.Ct. 1770. However, we note that it is at the very least preferable to specify sentences on each count of conviction and to identify whether those sentences run concurrently or consecutively. See e.g., United States v. Batimana, 623 F.2d 1366, 1370-71 (9th Cir. 1980). On remand, the district court shall do so.
The district court erred by failing to group McDowell’s counts of conviction into a single group. USSG § 3D1.2(c) requires that the counts be grouped because
Nothing in the record indicates that McDowell unlawfully obtained, possessed or distributed the Olympic Arms PCR-40 assault rifle.
AFFIRMED in part, REVERSED in part, and REMANDED for re-sentencing.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. We review the district court's denial of a motion for substitution of counsel for abuse of discretion. See United States v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001).
. The suggestion in Szalkiewicz, 944 F.2d 653, and Wiga, 662 F.2d at 1336, that separate storage — as opposed to acquisition of firearms — can support separate felon-in-possession charges is dicta at best, as those cases turned on the question of separate acquisition.
. In vacating the conviction on the second count, we do not preclude the possibility of that conviction being reinstated by the district court if the conviction on the first count is reversed or vacated on any further appeal or in proceedings under 18 U.S.C. § 2255. Cf. United States v. Jose, 425 F.3d 1237, 1247 (9th Cir. 2005) (suggesting the availability of such a procedure where a jury convicts on both a greater and lesser included offense).
. We review de novo whether the district court erred by interpreting the Sentencing Guidelines to add a two-level enhancement for possession of three or more firearms. See United States v. Ellsworth, 456 F.3d 1146, 1149 (9th Cir. 2006).
Reference
- Full Case Name
- United States v. William Emory McDOWELL
- Status
- Published