REVISED October 30, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60769

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DANNY HOPE

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Mississippi

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendant, Danny Hope, was apprehended following a high speed chase

that ensued when a police officer attempted to pull him over for driving with a

broken headlight. The officer recovered a .380 caliber Walther-brand pistol from

under the passenger seat of Hope’s vehicle. The pistol was later identified as the

same weapon Defendant had used to rob a convenience store the previous day.

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-60769

1 18 U.S.C. § 922(g)(1) (“It shall be unlawful for any person . . . who has been convicted

in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . .

possess in or affecting commerce, any firearm . . . .”).

2 See U.S. v. Claiborne, 132 F.3d 253, 254-55 (5th Cir. 1998) (per curiam) (affirming the

defendant’s sentence despite the Government arguing the district court erred in applying the

Sentencing Guidelines). 

3 FED.R.CRIM.P. 52(b) (“A plain error that affects substantial rights may be considered

even though it was not brought to the court’s attention.”); U.S. v. Calverley, 37 F.3d 160, 162-

63 (5th Cir. 1994) (en banc).

2

Hope was convicted of two counts of being a felon in possession of a

firearm.

1 The first count covered the day Hope was apprehended; the second

count covered the convenience store robbery the previous day. However, at trial

the prosecution introduced no evidence that Hope ever relinquished constructive

possession of the gun over the two-day period underlying the two separate

counts. He was sentenced to 120 months for the first count and 15 months for

the second count, with the sentences to run consecutively. 

Hope contends that these sentences violate the Double Jeopardy Clause

of the Constitution. The government agrees and requests the case be remanded

to the district court for vacation of one of the counts of conviction and

resentencing. We are not bound by the Government’s concession of error and

give the issue independent review.2 Hope did not object at the sentencing

hearing and is raising this issue for the first time on appeal. Our review,

therefore, is for plain error, which requires an appellantto show (1)the existence

of actual error, (2) that the error was plain, and (3) that it affects substantial

rights.3

I

We must first determine if it was plain error, in contravention of the

Double Jeopardy Clause, to convict Hope of two counts of possessing a firearm

as a felon. The Supreme Court has defined plain error as error that is “clear,”
No. 07-60769

4 U.S. v. Olano, 507 U.S. 725, 734 (1993) (citing U.S. v. Young, 470 U.S. 1, 17 n.14

(1985)).

5 U.S. v. Frady, 456 U.S. 152, 163 (1982).

6 Calverly, 37 F.3d at 162-63 (quoting Olano, 507 U.S. at 734).

7 Johnson v. U.S., 520 U.S. 461, 468 (1997).

8 U.S. v. Kimbrough, 69 F.3d 723, 729 (5th Cir. 1995); U.S. CONST. amend. V (“ . . . nor

shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .

.”).

9 U.S. v. Register, 931 F.2d 308, 312 (5th Cir. 1991). 

3

or “equivalently ‘obvious,’”4such that “the trial judge and prosecutor were

derelict in countenancing it, even absent the defendant’s timely assistance in

detecting it.”5 The error could have been “‘clear under current law’ at the time

of trial,”6or in a case “where the law at the time of trial was settled and clearly

contrary to the law at the time of appeal[,] it is enough that the error be ‘plain’

at the time of appellate consideration.”7

On the facts ofthis case,the district court plainly erred by convicting Hope

of two counts of possessing a firearm in violation of the Double Jeopardy Clause

ofthe 5th Amendment. The Double Jeopardy Clause “prohibits the Government

from charging a single offense in several counts and is intended to prevent

multiple punishments for the same act.”8 To prevail on a double jeopardy

argument, “the defendant bears the burden to establish, both in law and in fact,

the commonality of the offenses.”9

This Circuit has not squarely addressed the legal question of whether

possession of the same gun when arrested and on the previous day in a robbery,

absent evidence that the possession was interrupted, can constitute two

violations of 18 U.S.C. § 922(g). However, a confluence of our sister circuits has

answered this question with a resounding “no.” The First, Sixth, Seventh,
No. 07-60769

10 See U.S. v. Destefano, 201 F.3d 429 (1st Cir. 1999) (unpublished); U.S. v. Jones, 533

F.2d 1387 (6th Cir. 1976); U.S. v. Conley, 291 F.3d 464 (7th Cir. 2002); U.S. v. Horodner, 993

F.2d 191 (9th Cir. 1993); U.S. v. Rivera, 77 F.3d 1348 (11th Cir. 1996). But see U.S. v. Erby,

246 F. App’x 228, 231 n.3 (4th Cir. 2007) (declining to adopt the position of the other circuits

in an unpublished opinion that is not binding precedent).

11 Jones, 533 F.2d at 1391.

12 977 F.2d 915, 919-20 (5th Cir. 1992).

13 U.S. v. Register, 931 F.2d 308, 312 (5th Cir. 1991) (citing U.S. v. Fiallo-Jacome, 784

F.2d 1064, 1066 (11th Cir. 1986)).

14 The indictment signifies that both counts were for possession of“one (1) Walther .380

caliber pistol, model PP, serial number 202593PP.” 

4

Ninth, and Eleventh Circuits10 have all held, concerning statutes prohibiting

firearm possession: “Possession is a course of conduct, not an act; by prohibiting

possession Congress intended to punish as one offense all ofthe acts of dominion

which demonstrate a continuing possessory interest in a firearm.”11

This Circuit has addressed closely related issues. In United States v.

Berry,

12 we held that multiple convictions under 18 U.S.C. § 922(g) for the

simultaneous possession of multiple weapons violated the Double Jeopardy

Clause and explained that “had the government evidence that Berry obtained

the guns at different times . . . then it could have sought [multiple convictions].”

Such reasoning implicitly recognizes that continuing possession of the same

firearm is a single course of conduct under the statute, constituting one offense.

This interpretation of the firearm statute corresponds with our

understanding of possession as used in other criminal statutes, such as those

prohibiting drug possession. In that context we have held regarding double

jeopardy, “the crucial factual question is whether the defendant continuously

possessed cocaine or whether he had it in his possession on distinct occasions.”13

Applying this interpretation of “possession” to the instant case, the fact that the

indictment charged Hope with possession of the same, distinct firearm14 when

arrested and on the previous day in a robbery raises an inference of continuous
No. 07-60769

15 Id. at 312-13.

16 157 F.3d 343, 345-46 (5th Cir. 1998). 

17 Of course, as explained in U.S. v. Hull, 160 F.3d 265, 272 (5th Cir. 1998), we cannot

find plain error if it “requires the extension of precedent.” In Hull, the appellant challenged

his jury instruction as plain error. The Court upheld the conviction, pointing to precedent in

this Circuit that explicitly indicated that a jury instruction similar to that at issue in Hull “can

be appropriate.” It also cited a second case in which this Circuit did not question a similar jury

instruction, even though the review was de novo. Here, in contrast, although we have not

spoken directly on the issue, our precedent has implicitly resolved the issue in Hope’s favor.

Additionally, and in contrast with Hull, there is a consensus among the five other circuits that

have decided the issue. See U.S. v. Gore, 154 F.3d 34, 43 (2d Cir. 1998) (“The lack of this

Court’s precedent directly on point . . . will not prevent the district court’s error from being

5

possession that the government did not challenge and which is sufficient to

support its concession. These facts differ from those in United States v.

Register15 where a cocaine dealer was charged with two counts of possession of

cocaine, with each count referencing a separate date. There, an alleged drug

dealer raised no inference that the two offenses were based on the continuous

possession of the same cocaine. Because a drug dealer’s modus operandi is to

move his drug inventory there is no reason, absent other evidence, to infer that

a dealer possesses the same stash days apart. Moreover, unlike firearms which

are distinct to the point of bearing serial numbers, drugs are fungible and not

easily identified as the same stash previously possessed. 

We are persuaded that it was plain error for the district court to sentence

Hope to two counts of firearm possession on the facts of this case. Our

interpretation of “possession” in other criminal contexts and those of our sister

circuits make clear that the statute criminalizes a “course of conduct, not an

act.” The error was plain and obvious. Finally, we point to United States v.

Leonard,

16 where we recognized that a district court’s interpretation of a statute

may still be plain error, despite this Circuit never having had occasion to directly

interpret the statute, when a number of other circuits have agreed on the

interpretation and the statute itself is clear. That is the case here.17
No. 07-60769

deemed ‘plain’ because this is not a case in which we have taken no position on a certain issue

and upon which no other circuit has spoken, or upon which there is a sharp dispute among the

other circuits.”) (internal citations omitted).

18 U.S. v. Atkinson, 297 U.S. 157, 160 (1936).

6

II

Having decided that the error was plain, we ask whether the error

substantially affected the rights of the defendant. Hope’s combined sentences

resulted in a total term of imprisonment of 135 months, which exceeds the

statutory maximum of 120 months for one offense. Thus, the error resulted in

a sentence 15 months longer than is constitutionally permissible. Hope’s rights

were substantially affected.

We find that this plain error “seriously affect[ed] the fairness”18of the

judicial proceeding, and we therefore exercise our discretion to correct the error.

The conviction and sentence for one of the counts of firearm possession is

VACATED and the matter is REMANDED for resentencing.