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October 9, 2008

A case called Hope

During election season, I love watching old campaign commercials (wonderfully assembled here) and reading old political speeches.  Candidate Bill Clinton's speech at the 1992 Democratic convention was titled "A Place Called Hope," and I could not resist riffing off that title for this post about US v. Hope, No. 07-60769 (5th Cir. Oct. 8, 2008) (available here). Here is how a case called Hope starts:

Defendant, Danny Hope, was apprehended following a high speed chase that ensued when a police officer attempted to pull him over for driving with a broken headlight.  The officer recovered a .380 caliber Walther-brand pistol from under the passenger seat of Hope’s vehicle. The pistol was later identified as the same weapon Defendant had used to rob a convenience store the previous day.

Hope was convicted of two counts of being a felon in possession of a firearm. The first count covered the day Hope was apprehended; the second count covered the convenience store robbery the previous day. However, at trial the prosecution introduced no evidence that Hope ever relinquished constructive possession of the gun over the two-day period underlying the two separate counts. He was sentenced to 120 months for the first count and 15 months for the second count, with the sentences to run consecutively.

Hope contends that these sentences violate the Double Jeopardy Clause of the Constitution.  The government agrees and requests the case be remanded to the district court for vacation of one of the counts of conviction and resentencing. We are not bound by the Government’s concession of error and give the issue independent review.  Hope did not object at the sentencing hearing and is raising this issue for the first time on appeal.  Our review, therefore, is for plain error, which requires an appellant to show (1) the existence of actual error, (2) that the error was plain, and (3) that it affects substantial rights.

October 9, 2008 at 10:52 AM | Permalink

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Comments

So -- if these sentences had been run concurrently, the panel may have found the error harmless? (Seems like an added conviction and increased criminal history category might be damaging as well in the future.

Posted by: NewFedClerk | Oct 9, 2008 11:10:52 AM

NewFedClerk, as you seem to realize, the answer to your question is no. Note that the CA5 ordered that the lower court vacate the second conviction, not that it run the sentences concurrently.

Posted by: | Oct 9, 2008 11:21:24 AM

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