Case: 18-14091 Date Filed: 07/29/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14091
Non-Argument Calendar
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D.C. Docket No. 0:18-cr-60085-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY CADET,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(July 29, 2019)
Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Terry Cadet appeals his 151-month sentences imposed after he pled guilty to
one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1), and one count of possession of a firearm by a prohibited person, in
violation of 18 U.S.C. § 922(g)(8). On appeal, he contends that the district court
erred by imposing consecutive sentences for the same conduct in violation of the
Double Jeopardy Clause of the Fifth Amendment. He also argues that the district
court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
without making sufficient findings of fact to conclude that his possession of a
firearm was in connection with another felony offense.
A claim of error which was not preserved below is reviewed for plain error.
Puckett v. United States,
556 U.S. 129, 134 (2009). Plain error review has four
prongs:
(1) There must be an error or defect that the appellant has not
affirmatively waived; (2) it must be clear or obvious; (3) it must have
affected the appellant's substantial rights; and (4) if the three other
prongs are satisfied, the court of appeals has the discretion to remedy
the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.
Id. at 135. “For a plain error to have occurred, the error must be one that is
obvious and is clear under current law.” United States v. Madden,
733 F.3d 1314,
1322 (11th Cir. 2013).
In United States v. Winchester, we determined that a defendant should not be
punished “under two or more separate subdivisions of 18 U.S.C. § 922(g).” 916
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F.2d 601, 607 (11th Cir. 1990). We noted that under the interpretation urged by
the government in Winchester, “a convicted felon who is also a fugitive from
justice, a drug addict, a ‘mental defective,’ and an illegal alien, could be sentenced
to five consecutive terms of imprisonment for the same incident, namely, the
possession of a firearm.”
Id.
Here, Cadet was sentenced to 120 months on Count One for being a
convicted felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and 31
months, to be served consecutively, on Count Two for possession of the same
firearm by a prohibited person under § 922(g)(8). The district court plainly erred
in imposing consecutive sentences for Cadet’s dual violations of § 922(g) in light
of Winchester. The Government concedes error and that the error is plain. We
reverse and remand, with instructions to resentence Cadet in accordance with that
opinion. Consequently, Cadet’s argument, that the district court improperly
applied the § 2K2.1(b)(6)(B) enhancement, is moot, and we will not consider it at
this time.
REVERSED AND REMANDED.
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