Jedson Edward Leist v. United States ( 2013 )

Case: 12-11368 Date Filed: 04/23/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11368
Non-Argument Calendar
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D.C. Docket Nos. 4:10-cv-00011-RLV; 4:07-cr-00001-RLV-WEJ-1
JEDSON EDWARD LEIST,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 23, 2013)
Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Appellant Jedson Edward Leist, a federal prisoner, appeals from his
convictions and sentences after the district court resentenced him in accordance
with its grant of § 2255 relief. Leist filed his counseled § 2255 motion while
serving a total 20-year sentence following convictions for, inter alia, two counts of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(Counts 1 and 14) and two counts of possession of a firearm after having been
convicted of a domestic violence misdemeanor, in violation of 18 U.S.C.
§ 922(g)(9) (Counts 2 and 15). The district court concluded that Counts 1 and 2
were multiplicitous as to each other, as were Counts 14 and 15. In granting § 2255
relief, the district court vacated Leist’s sentences as to the multiplicitous counts of
conviction, resentenced Leist on Counts 1 and 14, and “merge[d]” Counts 2 and 15
into those counts, respectively.
Leist argues on appeal that the district court should have vacated his
convictions under Counts 2 and 15 along with the mandatory statutory assessment
that he was required to pay as a result of those convictions. The government
substantially agrees with Leist’s arguments on appeal.
We generally review de novo issues of double jeopardy and due process that
arise during sentencing. See United States v. Watkins, 147 F.3d 1294, 1296 (11th
Cir. 1998). However, when a party raises an issue concerning the validity of a
conviction for the first time on appeal, we review for plain error. United States v.
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Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). We will reverse on plain error
review only if there is: (1) error, (2) that is plain, (3) that affects substantial rights,
and (4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 1271 (internal quotation marks omitted).
The Supreme Court has held that where a defendant received two
convictions for the same conduct, the error must be remedied by vacating one of
the convictions. Ball v. United States, 470 U.S. 856, 864, 105 S. Ct. 1668, 1673,
84 L. Ed. 2d 740 (1985). Even where the district court imposed concurrent
sentences for the multiplicitous convictions, such that the defendant suffered no
additional period of imprisonment for the second conviction, one conviction must
be vacated because the fact of a separate conviction can carry with it collateral
consequences. Id. at 864-65, 105 S. Ct. at 1673. The Supreme Court subsequently
held that a mandatory special assessment is, by itself, a sufficient collateral
consequence requiring that a multiplicitous conviction be vacated. Rutledge v.
United States, 517 U.S. 292, 301-03, 116 S. Ct. 1241, 1247-48, 134 L. Ed. 2d 419(1996). The district court is required to impose a $100 assessment against an
individual convicted of a felony offense against the United States. 18 U.S.C.
§ 3013(a)(2)(A).
Leist did not object to the resentencing below, so our review is limited to
plain error. See Peters, 403 F.3d at 1270. Based on Rutledge, the district court
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plainly erred when it failed to vacate convictions that it found to be multiplicitous.
The error affected Leist’s substantial rights, even if the only immediately tangible
consequence of the error is that Leist paid an additional $200 in mandatory
assessments. See Rutledge, 517 U.S. at 301-03, 116 S. Ct. at 1247-48. Further, as
the Supreme Court discussed in Ball, a conviction can carry with it numerous
potential collateral consequences. See Ball, 470 U.S. at 864-65, 105 S. Ct. at 1673.
Based on Ball, the error here, which the government concedes, necessarily affects
the fairness of judicial proceedings. We therefore vacate Leist’s convictions under
Counts 2 and 15 of his second superseding indictment and remand the case to the
district court to amend the judgment accordingly, including a $200 reduction in
Leist’s statutory assessment.
JUDGMENT VACATED IN PART; CONVICTIONS AND
SENTENCES VACATED AS TO COUNTS 2 AND 15 AND REMANDED
FOR THE ENTRY OF AN AMENDED JUDGMENT IN ACCORDANCE
WITH THIS OPINION.
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