United States v. Collins , 95 F. App'x 505 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-7639
VERNON A. COLLINS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-87-338-HAR; CA-02-969-CCB)
Submitted: March 15, 2004
Decided: April 22, 2004
Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part and remanded in part by unpublished per curiam
opinion.
COUNSEL
Vernon A. Collins, Appellant Pro Se. Jonathan Mark Mastrangelo,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. COLLINS
OPINION
PER CURIAM:
Vernon A. Collins appeals the district court’s denial of his motion
to correct an illegal sentence under former Fed. R. Crim. P. 35(a). We
review a district court’s decision to deny a motion to correct an illegal
sentence under Rule 35(a) for abuse of discretion. See United States
v. Stump, 914 F.2d 170, 172 (9th Cir. 1990); United States v. McQuis-
ton, 307 F.3d 687, 689 (8th Cir. 2002). A motion challenging an ille-
gal sentence under former Rule 35(a) may be brought only when the
sentence imposed exceeds the statutory limits, violates the Double
Jeopardy Clause, or is ambiguous or internally contradictory. See
United States v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992).
Collins asserts the district court erred when it concluded his claim
that he received an improper sentence enhancement under 18 U.S.C.
§ 924(e) (1982) was not cognizable under Rule 35(a). Collins argued
he did not have three requisite predicate convictions because he had
been unlawfully denied access to an attorney for one of the offenses,
in violation of Gideon v. Wainwright, 372 U.S. 335 (1963). Because
Collins has not asserted his sentence, as enhanced under § 924(e),
exceeds statutory maximums, violates the Double Jeopardy Clause, or
is ambiguous or internally contradictory, we conclude the district
court did not abuse its discretion when it denied Collins’s Rule 35
motion on this claim and affirm this aspect of the district court’s
order.
Collins also argues his sentence violates the Double Jeopardy
Clause because he was sentenced on two counts under 18 U.S.C.
§ 922(g) for possession of a firearm by a convicted felon even though
both firearms were seized at the same time.
We do not address Collins’s Double Jeopardy claim because Col-
lins’s two convictions and sentences under § 922(g) violate the rule
in Ball v. United States, 470 U.S. 865 (1985). In Ball, the defendant
was convicted of both receiving a firearm in violation of § 922(h) and
possessing a firearm in violation of 18 U.S.C.App. § 1202(a)(1). Ball,
470 U.S. at 864. The Supreme Court examined the legislative intent
of the two statutes and determined that Congress did not intend for
UNITED STATES v. COLLINS 3
simultaneous prosecution under both. 470 U.S. at 864. The court went
on to state:
Having concluded that Congress did not intend petitioner’s
conduct to be punishable under both §§ 922(h) and 1202(a),
the only remedy consistent with the congressional intent is
for the District Court, where the sentencing responsibility
resides, to exercise its discretion to vacate one of the under-
lying convictions. The remedy of ordering one of the sen-
tences to be served concurrently with the other cannot be
squared with Congress’ intention. One of the convictions, as
well as its concurrent sentence, is unauthorized punishment
for a separate offense.
Ball, 470 U.S. at 864.
In United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998), this
court held that the unlawful possession of more than one firearm at
the same time supports only one conviction under § 922(g). The court
reached this conclusion by applying the rule that "if Congress does
not fix the punishment for a federal offense clearly and without
ambiguity, doubt will be resolved against turning a single transaction
into multiple offenses." Dunford, 148 F.3d at 390 (quoting Bell v.
United States, 349 U.S. 81, 84 (1955)) (internal quotations omitted).
Under Dunford, the district court erred when it sentenced Collins on
two separate counts of § 922(g).
We therefore conclude the district court abused its discretion in
denying Collins’s motion to correct an illegal sentence on this ground.
Under Ball, the appropriate remedy is to remand the case to the dis-
trict court to allow the district court to exercise its discretion to vacate
one of the convictions and resentence the defendant. See Ball v.
United States, 470 U.S. 856, 864-65, (1985). Accordingly, we remand
this portion of the district court’s order for it to vacate one of the
§ 922(g) convictions and resentence Collins. The balance of the order
of the district court is affirmed.
For the foregoing reasons, we affirm in part, and remand in part for
the district court to vacate one of Collins’s § 922(g) convictions and
resentence Collins consistent with this opinion. Because a certificate
4 UNITED STATES v. COLLINS
of appealability is not required for this appeal, we deny Collins’s
motion for a certificate of appealability as unnecessary. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART AND
REMANDED IN PART