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United States v. Taylor.

No. 22-6114. 11/14/2023. W.D.Okla. Judge Hartz. 18 USC § 922(g)—Guilty Plea—Waiver of Double Jeopardy Claim—Separate Possessions.

November 14, 2023

Taylor was arrested on June 6, 2020, after his involvement in two shooting incidents. Officers executed a search warrant at Taylor’s residence and found firearms and ammunition. A grand jury indicted Taylor on one count of felon in possession of five 9mm pistol cartridges on May 29, 2020; one count of felon in possession of seven 9mm pistol cartridges on June 6, 2020; and one count of felon in possession of a 9mm Kel-Tec pistol and a Marlin .22 rifle between June 6 and June 10, 2020. Taylor pleaded guilty to two counts of felon in possession of ammunition and one count of felon in possession of firearms under 18 USC § 922(g). Taylor subsequently moved to withdraw his guilty plea. The district court denied the motion, explaining that his plea had been knowing and voluntary, and Taylor was sentenced to 300 months’ imprisonment.

On appeal, Taylor argued that the three counts of felon in possession are multiplicitous in that they reflect one continuous incident of possession, so each count states the same offense for which he can receive only a single sentence. A defendant who pleads guilty admits the discrete acts described in the indictment and their guilt of the substantive crime and thus waives a double-jeopardy challenge. Nevertheless, Taylor contended that he is entitled to an exception to waiver of the double-jeopardy claim by pleading guilty, because his guilty plea does not waive his double-jeopardy claim if his claim is consistent with the facts established in the district court. However, the exception applies only if the double jeopardy claim is established by the indictment and the record, without contradicting the indictment. Section 922(g) makes it unlawful for a convicted felon to possess a firearm or ammunition. Under that section, the simultaneous possession of multiple firearms generally constitutes only one offense unless the evidence shows that the weapons were stored in different places or acquired at different times. Taylor conceded that separate possessions may be shown when the government proves that the defendant possessed the same firearms and/or ammunition on different dates, and that the constructive and actual possession was interrupted between those dates. Here, the indictment on its face alleges distinct offenses. Further, in searching Taylor’s home, officers found the Marlin .22 rifle in a bedroom behind a bed, the 9mm Kel-Tec pistol behind a living-room bookshelf, one box of ammunition in a living-room safe, and one box of ammunition in an unspecified location, so Taylor did not store the firearms and ammunition in one place. And the searches could not show who had the objects and where they were during the previous few days, so the record does not conclusively demonstrate a single offense.

The judgment was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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