United States v. James Mavromatis ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30115
Plaintiff-Appellee,
D.C. No.
v. 5:13-cr-00001-TMB-1
JAMES ARTHUR MAVROMATIS,
Defendant-Appellant. ORDER
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted to Motions Panel October 27, 2014*
Filed October 28, 2014
Before: Diarmuid F. O’Scannlain, Marsha S. Berzon,
and Jay S. Bybee, Circuit Judges.
Order
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. MAVROMATIS
SUMMARY**
Criminal Law
A motions panel filed a published order granting the
government’s “motion for remand based on confession of
error” in a case in which the defendant was convicted of
possessing a firearm after previously being committed to a
mental institution in violation of 18 U.S.C. § 922(g)(4).
Prior to being convicted under § 922(g)(4), the defendant
had been acquitted on a charge, based on the same incident of
possession, of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The parties agreed that
the defendant’s conviction under § 922(g)(4) is barred by the
Double Jeopardy Clause.
The panel remanded with instructions that the district
court vacate the conviction and dismiss the indictment.
COUNSEL
Rich Curtner and Noa Oren, Office of the Federal Public
Defender, Anchorage, Alaska, for Defendant-Appellant.
Jo Ann Farrington, Assistant United States Attorney, Karen
L. Loeffler, United States Attorney, Anchorage, Alaska, for
Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MAVROMATIS 3
ORDER
Appellant James Mavromatis was charged with being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Following a bench trial, the district court entered
a judgment of acquittal. Based on the same incident of
possession, Mavromatis was charged in a new indictment and
convicted of possessing a firearm after previously being
committed to a mental institution, in violation of 18 U.S.C.
§ 922(g)(4).
Appellee, the government, has filed a “motion for remand
based on confession of error,” because it agrees that
Mavromatis’s conviction pursuant to 18 U.S.C. § 922(g)(4)
is barred by the Double Jeopardy Clause. The view of the
Department of Justice is that Congress intended not to
establish multiple offenses when the same incident of
possession violates two subsections of § 922(g). The
government further concedes that the Department of Justice
took this position in a brief filed with the Supreme Court in
1992, when the Solicitor General agreed that § 922(g) states
a single offense that supports a single conviction and
sentence, rather than multiple offenses that may be charged
separately. See United States v. Munoz-Romo, 989 F.2d 757,
758–759 (5th Cir. 1993) (summarizing the Solicitor General’s
position before the Supreme Court).
Accordingly, the government’s motion for remand is
granted.
We remand this case to the district court with instructions
to vacate the conviction and dismiss the indictment.
4 UNITED STATES V. MAVROMATIS
The mandate shall issue forthwith.
REMANDED.