IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10018

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

KENNETH LEE WILLIS

Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas, Dallas Division

Before JOLLY, SMITH, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1998, the government charged Kenneth Lee Willis with two counts of

being a felon in possession of a firearm. The two counts were premised on

Willis’s simultaneous possession of two firearms and were, therefore,

multiplicitous in violation of the Fifth Amendment’s prohibition against double

jeopardy. Willis, however, did not object to the indictment. He was tried and

convicted on both counts, and was sentenced to two terms of imprisonment and

two terms of supervised release, all to run concurrently. 

Following his convictions, Willis filed an unsuccessful direct appeal and

later two unsuccessful motions to vacate judgment under 28 U.S.C. § 2255. In

each of those proceedings, Willis failed to raise the multiplicity of his convictions.

United States Court of Appeals

Fifth Circuit

F I L E D

March 24, 2009

Charles R. Fulbruge III

Clerk
No. 08-10018

2

There is no question – indeed it is conceded by the government – but that the

second underlying conviction was multiplicitous and therefore unconstitutional.

See, e.g., United States v. Berry, 977 F.2d 915, 918-20 (5th Cir. 1992) (indictment

charging three counts of unlawful possession of a firearm, premised on the

simultaneous possession of three firearms, was multiplicitous). Had Willis

raised the error, his second sentence would have been vacated. Id. at 920

(multiplicitous convictions will not be affirmed on the ground that their

sentences run concurrently and defendant who waives opportunity to challenge

multiplicitous conviction may nonetheless challenge multiplicitous sentence). 

Willis served his sentences concurrently and was released in 2007. After

he violated the conditions of his release, his two terms of supervised release were

revoked. At his revocation hearing, Willis, for the first time in any proceeding,

pointed out that the two underlying convictions were multiplicitous and asked

that the sentencing judge impose a new sentence for only one revoked term of

supervised release. The sentencing judge instead imposed a new sentence of

incarceration of 24 months on each term of supervised release, this time to run

consecutively. 

Willis now appeals the second of the two revocation sentences as

unreasonable, on the ground that it is multiplicitous. 

The government is correct that, although there is no question the

underlying convictions were multiplicitous, Willis may not challenge those

underlying convictions in this appeal. It is by now well-established that a

defendant may not use the appeal of a revocation of supervised release to

challenge an underlying conviction or original sentence. United States v.

Hinson, 429 F.3d 114, 116 (5th Cir. 2005) (may not challenge original sentence);

United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001) (may not challenge

indictment or drug quantity used at sentencing); United States v. Francischine,

512 F.2d 827, 828 (5th Cir. 1975) (may not challenge underlying conviction). 
No. 08-10018

 Case law acknowledges that a sentence may be multiplicitous in it own right. See 1

Berry, 977 F.2d at 920 (defendant who waives opportunity to challenge multiplicitous

conviction may nonetheless challenge multiplicitous sentence).

3

Here, however, Willis does not challenge the validity of his two underlying

convictions. Indeed, he has already served the two original terms of

imprisonment. His appeal does not seek to disturb either the multiplicitous

underlying conviction or the multiplicitous original sentence. Instead, he

challenges the reasonableness of the second revocation sentence. 

“[A]ppellate review of sentencing decisions is limited to determining

whether they are ‘reasonable.’” Gall v. United States, 552 U.S. — , 128 S.Ct.

586, 594 (2007). This court has yet to decide whether to subject revocation

sentences to the “unreasonable” or the “plainly unreasonable” standard of

review. See United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). We

need not resolve that issue here because, for the reason we explain, the second

revocation sentence in this case fails even the more exacting “plainly

unreasonable” standard of review. 

There is no question but that the second revocation sentence is

multiplicitous in its own right. We do not hold, however, that the second 1

revocation sentence is not a legal sentence. That revocation sentence stems from

one of the two original sentences; that original sentence, which Willis has

already served, remains undisturbed and therefore legal. If the original

sentence is legal, then the revocation sentence, which depends upon it, is also

legal. Our opinion does not question the revocation sentence’s legality.

We question instead the mere fact of the second revocation sentence, which

would require that Willis serve two revocation sentences, consecutively, as a

penalty for what all parties now agree was only one offense. The second

revocation sentence would therefore have the practical effect of incarcerating

Willis for an additional twenty-four months. We especially note that the original
No. 08-10018

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sentence, including the term of supervised release, was imposed to run

concurrently. The fact of its multiplicity, although legal, is, under all

circumstances present, plainly unreasonable. 

We view our holding in this case to be a narrow one. We hold only that

Willis’s revocation sentence, which would require that he actually serve, i.e.,

consecutively serve, two or more sentences as a penalty for a single offense, is

plainly unreasonable. We limit the precedential value of our holding to cases

presenting indistinguishable facts in all material respects.

Finally, Willis also claims the district court violated his right to allocute

before his sentence was pronounced. See FED. R. CRIM. P. 32(i)(4)(A)(ii)

(defendant must have opportunity to speak before sentence is imposed). Because

Willis did not object at the revocation hearing, we review for plain error only.

United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). The

revocation hearing transcript reveals that in fact the district court twice invited

Willis to speak. Initially, Willis told the court he had nothing to say; later, he

said only that the allegations against him were not true. The district court did

not deny Willis his right to allocute; therefore, we find no plain error.

Accordingly, for the reasons stated herein, Willis’s first revocation

sentence is AFFIRMED. His second revocation sentence is VACATED.