Opinion
No. CR06-4056-MWB.
August 9, 2006
REPORT AND RECOMMENDATION ON MOTION TO DISMISS ONE COUNT OF INDICTMENT
The defendant Sergio Elizarraras-Sepulveda has filed a motion (Doc. No. 11) asking the court to dismiss one count of the two-count indictment. On June 21, 2006, the defendant was indicted on two counts of illegally possessing a firearm and ammunition. Count 1 alleges he possessed the gun and ammunition while he was "an alien who was illegally and unlawfully in the United States," in violation of 18 U.S.C. § 922(g)(5). Count 2 alleges he possessed the same gun and ammunition while "being an unlawful user of controlled substances," in violation of 18 U.S.C. § 922(g)(3). (Doc. No. 2)
The defendant claims the two counts are multiplicitous in light of the recent holding in United States v. Richardson, 439 F.3d 421 (8th Cir. 2006). In Richardson, the defendant was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and with being a drug user in possession of the same firearm in violation of 18 U.S.C. § 922(g)(3). The defendant argued that because both charges arose from a single act of possessing a firearm, they should be merged into a single offense for purposes of sentencing. In overruling its prior decisions on the issue, the Eighth Circuit held as follows:
We now . . . join all the other Circuits that have addressed this issue to hold that Congress intended the "allowable unit of prosecution" to be an incident of possession regardless of whether a defendant satisfied more than one § 922(g) classification, possessed more than one firearm, or possessed a firearm and ammunition. See Bell v. United States, 349 U.S. 81, 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955) (describing the unit of prosecution test). . . . [Citations from 1st, 2d, 3d, 4th, 5th, 6th, 7th, 9th, 10th, 11th, D.C. Circuits omitted.]Richardson, 439 F.3d at 422-23.
The Government has not resisted the motion. Therefore, on both substantive and procedural grounds, the undersigned respectfully recommends the defendant's motion to dismiss one count of the Indictment be granted. Id.; see LR 7.1(f). The undersigned further recommends the Government be ordered either to elect between the two Counts or to supersede to include both theories in a single count.
Any party who objects to this report and recommendation must serve and file specific, written objections by August 16, 2006. Any response to the objections must be served and filed by August 21, 2006.
IT IS SO ORDERED.