UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4650

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LELAND VICTOR NIELSEN, III,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Terry L. Wooten, Chief District 

Judge. (3:13-cr-00558-TLW-1)

Argued: September 17, 2015 Decided: February 2, 2016

Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed in part, vacated in part, and remanded with 

instructions by unpublished opinion. Senior Judge Davis wrote 

the opinion, in which Judge Duncan and Judge Diaz joined. 

ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD, 

LLP, Greenville, South Carolina, for Appellant. James Hunter 

May, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South 

Carolina, for Appellee. ON BRIEF: William N. Nettles, United 

States Attorney, Julius N. Richardson, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South 

Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

DAVIS, Senior Circuit Judge:

This case arises from the conviction of Leland Victor 

Nielsen, III, on four counts of aggravated sexual abuse of a 

minor by force in violation of 18 U.S.C. § 2241(a), (c) (2012), 

and four counts of sexual abuse of a minor in violation of 18 

U.S.C. § 2243(a) (2012), based on the same conduct. On appeal, 

Nielsen presents two issues for our review. First, he 

challenges the district court’s denial of his motion to suppress 

statements made to federal agents. Second, he contends that his 

convictions are multiplicitous. For the reasons stated below, 

we affirm the district court’s denial of Nielsen’s motion to 

suppress but vacate his conviction and sentence on Counts 2, 4, 

6, and 8 for sexual abuse of a minor as multiplicitous in 

violation of the Double Jeopardy Clause of the Fifth Amendment.

Consequently, affirming in part and vacating in part, we remand 

the case for the entry of an amended judgment.

I.

A.

On May 22, 2013, the FBI received a report of potential 

sexual assaults occurring at the Fort Jackson Army installation 

in Columbia, South Carolina. Twelve-year-old B.R. had told her 

guidance counselor that she had been sexually assaulted by her 

thirty-one-year-old uncle, Leland Nielsen, III, at her family’s 

home on Fort Jackson. Nielsen, who was married to the sister of 
4

B.R.’s mother, also lived in the home. A team of FBI agents 

proceeded to the Fort Jackson residence to investigate the 

allegations. 

Nielsen was not at the residence when the agents arrived, 

but some family members were present and gave consent for the 

agents to enter the house. Agent Michael Stansbury asked 

Nielsen’s mother-in-law to call Nielsen and ask him to come 

home, but not to tell him the FBI was there. Nielsen’s motherin-law called Nielsen and falsely told him that he needed to 

come home due to a medical emergency involving his sister-inlaw. 

Agent Robert Waizenhofer waited in front of the house for 

Nielsen to arrive. When Nielsen arrived, at approximately 8:00 

p.m., Agent Waizenhofer approached him as he exited his car. 

The two began speaking in the driveway. Agent Waizenhofer had 

not drawn his gun, and he was not wearing any FBI insignia. He

told Nielsen that he was not in trouble and asked him about 

B.R.’s allegations. Nielsen began admitting to sexual acts with 

B.R. near the start of the interview, and Agent Waizenhofer

continued to question Nielsen to elicit details. Throughout the 

interview, Agent Waizenhofer attempted to “empathize” with 
5

Nielsen in an effort to open up conversation with him. J.A. 48.1 

Agent Waizenhofer was later joined by Agent Stansbury, and 

the agents took turns asking Nielsen questions. At some point 

during the interview, Agent Stansbury became more direct or 

aggressive in his questioning. It had become apparent to the 

agents that B.R. had performed oral sex on Nielsen but Nielsen

had not expressly admitted this. Agent Stansbury thus directly 

questioned Nielsen on that point, stating “she sucked your dick. 

Didn’t she? She sucked your dick.” J.A. 159. At another point 

during the interview, the agents sought help from Agent Craig 

Janikowski, who was dressed in green FBI fatigues, after coming 

to an “impasse” with Nielsen. J.A. 44-45, 154-55. No more than 

three agents ever interviewed Nielsen at once, and one agent 

generally led the questioning even when others were present.

At some point during his interaction with the agents, 

Nielsen told them that he had post-traumatic stress disorder 

(PTSD) resulting from an accident at a chemical plant where he 

was previously employed and that he was on medication to treat 

the disorder. While Nielsen ultimately admitted to engaging in 

various sex acts with B.R., he indicated that his PTSD was to 

blame for his conduct. J.A. 42–44.

 1 Citations to the “J.A.” are to the Joint Appendix filed by 

the parties in this case.
6

The entire interview took place in front of Nielsen’s

residence. Throughout the interview, there were five or six 

agents present at the residence. Nielsen was not handcuffed or 

physically restrained while agents spoke with him, and he was 

able to move around the yard and driveway. Agent Waizenhofer 

testified that, at one point, Nielsen retrieved a bottle of 

water from his car during the interview. J.A. 60–61. Nielsen 

was never told that he was free to terminate the interview and 

leave, and he was not provided with Miranda warnings prior to 

speaking with the agents. The interview lasted until 

approximately 11:00 p.m., when the agents placed Nielsen under 

formal arrest. 

B.

Nielsen was indicted on four counts of aggravated sexual 

abuse of a minor by force under § 2241(a), (c) and four counts 

of sexual abuse of a minor under § 2243(a) arising from four 

sexual encounters between Nielsen and B.R. Nielsen filed a 

pretrial motion to suppress statements he made during his 

interview with the FBI, which the district court denied 

following a hearing. 

The case proceeded to trial. Before the jury charge, 

Nielsen objected to a portion of the district court’s 

instruction on the force element of the § 2241(a), (c) offenses. 

The instruction permitted the government to prove force by 
7

inference based on a disparity in strength and coercive power 

between the offender and the victim. Nielsen argued that, under 

the instruction, anyone who committed sexual abuse of a minor 

under § 2243(a) would be inherently guilty of aggravated sexual 

abuse under § 2241(a), (c). The court overruled the objection

and instructed the jury accordingly. 

The jury returned guilty verdicts on all counts. Nielsen 

raised his challenge to the force instruction again in a motion 

for a new trial, which was denied. The court sentenced Nielsen 

on all eight convictions as follows: imprisonment for terms of 

life as to each of the four § 2241(a), (c) counts and terms of 

fifteen years as to each of the four § 2243(a) counts, with all 

such terms to run concurrently; and supervised release for 

concurrent terms of ten years for each count should Nielsen ever 

be released. The court also ordered Nielsen to pay a total of 

$800 in special assessment fees based on the eight counts of 

conviction. Nielsen timely appealed.

II.

A.

Nielsen contends that the district court erred in denying 

his motion to suppress the statements he made to federal agents 

as described above. He argues that his statements should have 

been suppressed because they occurred during a custodial 

interrogation without the warnings required under Miranda v. 
8

Arizona, 384 U.S. 436 (1966), and because his statements were 

not voluntary. We disagree. 

We review the district court’s findings of fact on a motion 

to suppress for clear error and its legal determinations de 

novo. United States v. Hashime, 734 F.3d 278, 282 (4th Cir. 

2013) (citation omitted). When reviewing the denial of a motion 

to suppress, we view the evidence in the light most favorable to 

the government. Id. (citation omitted). 

The Fifth Amendment provides that “[n]o person . . . shall 

be compelled in any criminal case to be a witness against 

himself.” U.S. Const. amend. V. In Miranda, the Supreme Court 

adopted a prophylactic rule that law enforcement must warn a 

criminal suspect of certain rights prior to a custodial 

interrogation as a means of protecting this constitutional 

right. Miranda, 384 U.S. at 444. In general, evidence 

obtained from a custodial interrogation without a Miranda

warning is inadmissible in the prosecution’s case-in-chief. 

United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001).

Absent formal arrest, Miranda warnings are required only 

“where there has been such a restriction on a person’s freedom 

as to render him ‘in custody.’” Id. (quoting Oregon v. 

Mathiason, 429 U.S. 492, 495 (1977)). “An individual is in 

custody for Miranda purposes when, under the totality of the 

circumstances, ‘a suspect’s freedom of action is curtailed to a 
9

degree associated with formal arrest.’” Id. (quoting Berkemer 

v. McCarty, 468 U.S. 420, 440 (1984)). This inquiry is 

objective, looking to whether “‘a reasonable man in the 

suspect’s position would have understood his situation’ to be 

one of custody.” Hashime, 734 F.3d at 282 (citation omitted). 

A number of factors are relevant to this inquiry, including “the 

time, place and purpose of the encounter, the words used by the 

officer, the officer’s tone of voice and general demeanor, the 

presence of multiple officers, the potential display of a weapon 

by an officer, and whether there was any physical contact 

between the officer and the defendant.” Id. at 283 (citation 

omitted). We also consider an individual’s isolation and 

separation from family, as well as any physical restrictions. 

Id. (citations omitted).

Considering the totality of the circumstances, the facts 

here do not demonstrate that Nielsen was in custody when he 

spoke with federal agents on May 22, 2013. Nielsen was 

interviewed by agents at his residence rather than at a police 

station or other law enforcement facility. While this fact is 

not determinative, we are generally less likely to regard an 

interview conducted in a familiar setting like a suspect’s home 

as a custodial interrogation. See id. at 284. Five or six 

federal agents were present at the residence, but no more than 

three agents interviewed Nielsen at a time. Agent Waizenhofer, 
10

the agent who initiated contact with Nielsen, told Nielsen that 

he was not in trouble and maintained an “empathetic” tone with 

Nielsen throughout the interview. The agents never drew their 

weapons at any point during the interaction. Nielsen was not 

handcuffed or otherwise physically restrained, and he was able 

to move around the yard and driveway. Additionally, Nielsen 

never asked to end the interview or to leave.

To be sure, some aspects of the agents’ interaction with 

Nielsen are consistent with custody. While the interview was 

conducted at Nielsen’s residence, Nielsen knew that agents were 

searching the house while others spoke with him outside. He was 

separated from his family. The interview lasted for three 

hours, ending after dark. At times, the agents’ questioning 

became more aggressive. And while Nielsen was not under arrest 

and was free to terminate the interview, no one communicated 

either of those facts to him. 

Taken together, however, the circumstances do not reflect 

the restriction of freedom associated with formal arrest. While 

several aspects of the interview favor a finding of custody, we 

do not fault the district court’s conclusion that they are 

outweighed by circumstances that suggest otherwise—the small 

number of agents at the residence, the lack of any physical 

restraints on his movement and his ability to move around the 

yard and driveway, and, at the start at least, the generally 
11

empathetic tone of the interview. Nielsen’s interview was not 

conducted in the sort of environment that we have previously 

found consistent with custody. See, e.g., Hashime, 734 F.3d at 

281, 283–85 (finding three-hour interview of suspect in home to 

be custodial interrogation when suspect was awakened at gunpoint 

with fifteen to thirty officers present in the residence, was 

not permitted to move unless guarded, and was isolated from his 

family and questioned in a small storage room); United States v. 

Colonna, 511 F.3d 431, 435–36 (4th Cir. 2007) (finding threehour interview to be custodial interrogation when suspect was 

awakened at gunpoint with twenty-three officers present in the 

residence, was guarded at all times, and was questioned in an 

FBI vehicle). 

It is possible that Nielsen did not feel, subjectively,

that he was free to terminate the encounter. But our inquiry is 

objective and not based on the suspect’s subjective feelings. 

Hashime, 734 F.3d at 285. Any interview by law enforcement with 

a suspect carries certain “coercive aspects” due to the 

heightened risk that the suspect will be arrested and charged. 

Hargrove, 625 F.3d at 178. We cannot conclude, however, that 

Nielsen was in custody simply because he was approached by law 

enforcement for questioning about the allegations made against 

him. See id.
12

We hold that, viewing the evidence in the light most 

favorable to the government, a reasonable person in Nielsen’s 

position would not have understood his position to be one of 

custody. The agents were not required to recite Nielsen’s 

Miranda rights prior to the interview, and Nielsen’s statements 

are thus not subject to suppression under Miranda and its 

progeny. 

B.

Nielsen also argues that even apart from the requirements

of Miranda, his statements were not voluntary. A statement is 

involuntary under the Due Process Clause when it is “‘extracted 

by . . . threats or violence’ or ‘obtained by . . . direct or 

implied promises’ or ‘the exertion of . . . improper 

influence.’” United States v. Ayesh, 702 F.3d 162, 168 (4th 

Cir. 2012) (omissions in original) (quoting Hutto v. Ross, 429 

U.S. 28, 30 (1976)). The relevant inquiry is “whether the 

defendant’s will has been overborne or his capacity for selfdetermination critically impaired because of coercive police 

conduct.” United States v. Cristobal, 293 F.3d 134, 140 (4th 

Cir. 2002) (citations omitted). To make this determination, we 

examine the totality of the circumstances, including “the 

characteristics of the defendant, the setting of the interview, 

and the details of the interrogation.” Id. (citation omitted). 

Coercive police conduct is “a necessary predicate” to a finding 
13

that a suspect’s statements are involuntary. Id. (citations 

omitted).

To support his argument, Nielsen points to many of the same 

aspects of his interview with the agents that he identified as 

indicative of custody. None of these factors—the sometimes 

aggressive questioning of the agents, the length and location of 

the interview, or the continuation of the interview after 

Nielsen had confessed to the substance of the allegations—rise 

to the level of coercive police conduct. Nielsen can point to 

no conduct by the agents that would constitute the types of 

actions generally considered to be coercive under our case law, 

such as threats or violence, lengthy marathon interrogations, or 

extended isolation. See United States v. Braxton, 112 F.3d 777, 

784–85 (4th Cir. 1997) (en banc) (collecting cases). 

Nielsen also emphasizes that he suffers from PTSD, had 

taken several medications the morning of the interview, and 

experienced anxiety during the interaction with the agents. A 

suspect’s mental condition, whether due to mental illness or 

medication, is not, standing alone, sufficient to render that 

suspect’s statements involuntary. Cristobal, 293 F.3d at 141 

(citing Colorado v. Connelly, 479 U.S. 157, 164–65 (1986)). And 

even when taken together with the other circumstances of the

interview, Nielsen’s mental condition does not lead to the 

conclusion that his “will [was] overborne or his capacity for 
14

self-determination critically impaired” during the 

interrogation. Id. at 140 (citation omitted). Accordingly, we 

hold that the district court did not err in concluding that the 

circumstances surrounding Nielsen’s interrogation comported with 

due process.

III.

A.

Nielsen also challenges his convictions as multiplicitous. 

He argues that Counts 1, 3, 5, and 7 of the indictment, charging 

aggravated sexual abuse of a minor by force, and Counts 2, 4, 6, 

and 8, charging sexual abuse of a minor, are multiplicitous 

because the district court instructed the jury that it could 

infer force to meet the elements of aggravated sexual abuse of a 

minor by force if it found that the defendant had

disproportionately greater strength than the victim, which, 

Nielsen contends, will “inevitably” be the case in a child abuse 

case given the disparity in age between defendant and victim. 

Br. Appellant 18. We agree that Nielsen’s convictions are 

multiplicitous, though not for the reasons cited by Nielsen.2 

 2 Because we resolve Nielsen’s multiplicity challenge on 

other grounds, we need not address his argument concerning the 

force instruction at length. However, because Nielsen argues 

that the alleged error in the force instruction entitles him to 

a new trial rather than the usual remedy of vacating the 

multiplicitous convictions, we note that the trial judge 

properly instructed the jury in this regard, see United States 

(Continued)
15

Among the guarantees provided in the Double Jeopardy Clause 

is protection against “the imposition of cumulative punishments 

for the same offense in a single criminal trial.” United States 

v. Shrader, 675 F.3d 300, 313 (4th Cir. 2012) (citation 

omitted). “The legislature remains free under the Double 

Jeopardy Clause to define crimes and fix punishments; but once 

the legislature has acted courts may not impose more than one 

punishment for the same offense . . . .” Brown v. Ohio, 432 

U.S. 161, 165 (1977). An indictment is improperly 

multiplicitous when it charges a single offense in several 

counts. United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 

1993) (citation omitted). “[R]eversal is warranted if the 

defendant actually was convicted on multiplicitous counts and 

subjected to multiple punishments.” Id. (citation omitted).

When a defendant is convicted of violating multiple 

statutory provisions for a single act or transaction, we employ 

the analysis set forth in Blockburger v. United States, 284 U.S. 

299 (1932), to determine if the convictions offend the Double 

Jeopardy Clause. Under Blockburger, “the test to be applied to 

determine whether there are two offenses or only one, is whether 

 

v. Johnson, 492 F.3d 254, 258 (4th Cir. 2007) (collecting

cases), and that the government relied on proof of Nielsen’s 

size and strength to establish the force element, not simply 

B.R.’s age, see J.A. 647. 
16

each provision requires proof of an additional fact which the 

other does not.” United States v. Martin, 523 F.3d 281, 291 

(4th Cir. 2008) (quoting Blockburger, 284 U.S. at 304). Because 

the Blockburger analysis is a “rule of statutory construction,” 

it “should not be controlling where . . . there is a clear 

indication of contrary legislative intent.” United States v. 

Allen, 13 F.3d 105, 108 (4th Cir. 1993) (omission in original) 

(quoting Whalen v. United States, 445 U.S. 684, 691 (1980), and 

Albernaz v. United States, 450 U.S. 333, 340 (1981)). 

Under Blockburger, sexual abuse of a minor is a lesser 

included offense of aggravated sexual abuse of a minor by force. 

Section 2243(a) proscribes sexual abuse of a minor:

Whoever, in the special maritime and territorial 

jurisdiction of the United States . . . knowingly 

engages in a sexual act with another person who--

(1) has attained the age of 12 years but has not 

attained the age of 16 years; and

(2) is at least four years younger than the person so 

engaging;

or attempts to do so, shall be fined under this title, 

imprisoned not more than 15 years, or both.

Section 2241(a) proscribes aggravated sexual abuse by force or 

threat:

Whoever, in the special maritime and territorial 

jurisdiction of the United States . . . knowingly 

causes another person to engage in a sexual act--

(1) by using force against that other person; or

(2) by threatening or placing that other person in 

fear that any person will be subjected to death, 

serious bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, 

imprisoned for any term of years or life, or both.
17

Section 2241(c) provides for a thirty-year mandatory minimum 

sentence when the victim of aggravated sexual abuse is a minor, 

including when the victim “has attained the age of 12 years but 

has not attained the age of 16 years (and is at least 4 years 

younger than [the offender]).” Because § 2241(c) imposes a 

mandatory minimum penalty for aggravated sexual abuse by force 

or threat when the victim is a minor, age of the victim is an 

element of the offense that must be submitted to the jury. 

Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013).

As the government concedes, because the only difference 

between the two offenses is the additional requirement under 

§ 2241(a)(1) that force be proved to establish aggravated sexual 

abuse, the § 2243(a) offenses are merely lesser included 

offenses of the greater § 2241(a), (c) offenses. Suppl. Br. 

Appellee 1. “It has long been understood that separate 

statutory crimes need not be identical either in constituent 

elements or in actual proof in order to be the same within the 

meaning of the constitutional prohibition.” Brown, 432 U.S. at 

164 (citations omitted). A greater offense and a lesser 

included offense are the “same” offense for double jeopardy 

purposes because the lesser included offense “requires no proof 

beyond that which is required for conviction of the greater 

[offense].” Id. at 168.
18

The government nonetheless contends that Nielsen’s 

convictions do not offend the Double Jeopardy Clause because 

Congress intended to authorize separate punishments for sexual 

abuse of a minor and aggravated sexual abuse of a minor by 

force. However, it can point to nothing in the legislative 

history of either statute evincing “a clear indication of 

contrary legislative intent” to impose multiple punishments for 

the same offense. Allen, 13 F.3d at 108 (quoting Albernaz, 450 

U.S. at 340). And the cases on which the government relies were 

decided based on a Blockburger analysis of the two statutes 

prior to the Supreme Court’s decision in Alleyne and are 

therefore inapposite. See United States v. Rivera, 43 F.3d 

1291, 1297 (9th Cir. 1995); United States v. Amos, 952 F.2d 992, 

994 (8th Cir. 1991), abrogated on other grounds, United States 

v. Allery, 175 F.3d 610 (8th Cir. 1999); United States v. 

Morsette, 858 F. Supp. 2d 1049, 1052–53 (D.N.D. 2012). We 

therefore see no reason to deviate from the result of the 

Blockburger analysis here. 

Accordingly, we conclude that the district court should 

have merged the offenses so that Nielsen would have only been 

convicted of, and sentenced for, the greater § 2241(a), (c) 

offense in connection with each of the four charged instances of 

abuse. See United States v. Jones, 204 F.3d 541, 544 (4th Cir. 

2000) (citing Brown, 432 U.S. at 169) (holding that district 
19

court erred in imposing separate sentence for lesser included 

offense). In failing to do so, the district court erred.

B.

Nielsen, however, failed to preserve this issue for appeal. 

While Nielsen argues that the multiplicity error was not 

apparent until the district court charged the jury with the 

allegedly erroneous force instruction, the multiplicity error we 

identify above was apparent on the face of the indictment, yet 

was never raised before the district court. Pursuant to the 

version of Rule 12 in effect at the time of Nielsen’s trial, 

Nielsen’s challenge to the indictment is waived because he did 

not raise it in a pretrial motion, although “relief from the 

waiver” may be granted “[f]or good cause.” Fed. R. Crim. P. 

12(b)(3)(B), (e) (2011). Under the circumstances of this case, 

where the error is so obvious that the government now concedes 

that § 2243(a) is a lesser included offense of § 2241(a), (c) 

under Blockburger and Nielsen attempted to raise a multiplicity 

challenge during trial, we exercise our discretion to relieve 

Nielsen of his waiver under Rule 12 and review the multiplicity 

error discussed above under plain error review. See United 

States v. Bennafield, 287 F.3d 320, 322 (4th Cir. 2002) (citing 

United States v. Olano, 507 U.S. 725, 731–32 (1993)). 

Under plain error review, a defendant must demonstrate that 

“an error occurred, that the error was plain, and that the error 
20

affected his substantial rights.” Id. (citing Olano, 507 U.S. 

at 732). An error is plain if it is “clear” or “obvious,” 

Olano, 507 U.S. at 734, and it affects substantial rights if it 

prejudices the defendant, Bennafield, 287 F.3d at 322 (citing 

United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998)). 

Correction of the error is at our discretion, which we exercise 

only when the error “seriously affect[s] the fairness, integrity 

or public reputation of judicial proceedings.” Olano, 507 U.S. 

at 736 (citation omitted).

Nielsen’s multiplicitous convictions satisfy these 

requirements. That the § 2243(a) and § 2241(a), (c) counts 

shared all elements besides force is clear and obvious from the 

face of the indictment and from the district court’s 

instructions to the jury. The multiplicity error resulted in 

Nielsen’s conviction and sentencing on eight counts instead of 

four, including eight concurrent terms of imprisonment (and 

supervised release) and special assessment fees on eight

convictions instead of four, and was therefore prejudicial to 

him. See United States v. Shorter, 328 F.3d 167, 173 (4th Cir. 

2003) (discussing how even concurrent sentences on duplicative 

convictions are improper); United States v. Leftenant, 341 F.3d 

338, 348 (4th Cir. 2003) (vacating all but one of multiplicitous 

sentences and special assessments). And finally, because the 

error “seriously affect[s] the fairness, integrity or public 
21

reputation of judicial proceedings,” Olano, 507 U.S. at 736 

(citation omitted), we should exercise our discretion to correct 

it. When “a federal court exceeds its own authority by imposing 

multiple punishments not authorized by Congress, it violates not 

only the specific guarantee against double jeopardy, but also 

the constitutional principle of separation of powers in a manner 

that trenches particularly harshly on individual liberty.” 

Whalen, 445 U.S. at 689. The imposition of multiplicitous 

convictions and sentences in this case was therefore plain 

error.

C.

Having concluded that Nielsen’s convictions are 

multiplicitous and that the error was plain and is appropriate 

for us to correct, we turn to the remedy. The usual remedy for 

multiplicitous convictions is to vacate the offending 

convictions and order a resentencing of the defendant 

accordingly. See United States v. Brown, 701 F.3d 120, 127–28

(4th Cir. 2012) (citing Ball v. United States, 470 U.S. 856, 865 

(1985)). Nielsen nonetheless argues that the multiplicity error 

entitles him to a new trial because the jury “was prejudiced by 

the Government’s ‘prolix pleading’ with regard to multiplicitous 

charges implicating the same exact elements of proof.” Suppl. 

Br. Appellant 7. We rejected a similar argument in United 

States v. Colton, 231 F.3d 890 (4th Cir. 2000), and do so again 
22

here. Because the same evidence was used to prove the

§ 2241(a), (c) offenses as the lesser § 2243(a) offenses, 

Nielsen has suffered no cognizable prejudice from the jury’s 

consideration of the multiplicitous counts. See Colton, 231 

F.3d at 910.

IV.

For the reasons set forth above, the district court’s 

denial of the motion to suppress is affirmed. Nielsen’s 

convictions and sentences on Counts 2, 4, 6, and 8 for sexual 

abuse of a minor under § 2243(a) are vacated, and the case is 

remanded for entry of an order dismissing Counts 2, 4, 6, and 8 

of the indictment and issuance of an amended judgment consistent 

with this opinion.

AFFIRMED IN PART,

VACATED IN PART, AND

REMANDED WITH INSTRUCTIONS