United States v. Benigno Ayala-Juarez

472 F. App'x 307

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 2, 2012
• Docket: 11-41103
• Status: Unpublished

Opinion

PER CURIAM: *

Benigno Ayala-Juarez (Ayala) appeals the sentence he received after he pleaded guilty to possession of a firearm by a convicted felon and to possession of ammunition by a convicted felon. Each count charged a violation of 18 U.S.C. § 922(g)(1). Ayala argues that under United States v. Berry, 977 F.2d 915, 919-20 (5th Cir.1992), his conviction and sentence on one of his counts must be vacated because his two convictions and sentences are multiplicitous and violate the Double Jeopardy Clause. The government agrees and has filed an Unopposed Motion for Summary Remand in lieu of Filing Appellee’s Brief.

The government’s motion is GRANTED. Ayala’s sentences are VACATED, and the case is REMANDED for dismissal of the multiplicitous count and for resentencing on the count selected by the government. See Berry, 977 F.2d at 919-20; United States v. Osunegbu, 822 F.2d 472, 481 (5th Cir.1987).

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.