FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-50487 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00285-

JOSEPH MANUEL ZALAPA, aka DDP-1

Joseph Manual Zalapa, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

September 28, 2007—Pasadena, California

Filed December 5, 2007

Before: Thomas G. Nelson, Sandra S. Ikuta, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N. Randy Smith

15963
COUNSEL

James H. Locklin, Deputy Federal Public Defender, Los

Angeles, California for the defendant-appellant. 

Bayron T. Gilchrist, Assistant United States Attorney, Los

Angeles California, for the plaintiff-appellee. 

OPINION

N.R. SMITH, Circuit Judge: 

We hold that a defendant who fails to object in the district

court to multiplicitous convictions and sentences does not

UNITED STATES v. ZALAPA 15965
waive his or her right to raise a double jeopardy challenge on

appeal. Because we conclude that the district court plainly

erred by sentencing the appellant Joseph Manuel Zalapa on

multiplicitous firearm counts and entering judgment, we

reverse. 

I. Factual and Procedural Background

On October 20, 2005, officers in the Santa Ana, California

Police Department (“SAPD”) were in a parking lot investigating the presence of a stolen vehicle. While in the parking lot,

the officers observed Zalapa and another man “acting suspiciously.” At that time, Zalapa was carrying a backpack. The

officers attempted to approach Zalapa and his companion.

When approached by the SAPD officers, Zalapa fled in one

direction and his companion fled in another. In the course of

attempting to elude the officers, Zalapa dumped the backpack

over a fence in the yard of a home that he passed along his

intended escape route. The officers apprehended Zalapa

shortly thereafter. They recovered Zalapa’s backpack after a

resident of the home discovered it and turned it in to the

police. Zalapa’s backpack contained 64 rounds of 9mm

ammunition, a magazine loaded with 29 rounds of 9mm

ammunition, and a Sten M-5 rifle. 

At the time Zalapa was arrested, he was on probation for

a prior felony drug offense involving a firearm. As a term and

condition of his probation, he was prohibited from possessing

a firearm or ammunition. 

A federal grand jury indicted Zalapa on three felony

counts: possession of ammunition by a convicted felon (Count

One); possession of an unregistered machine gun (Count

Two); and possession of an unregistered firearm with a barrel

less than 16 inches long (Count Three). Counts Two and

Three charged Zalapa with violating 26 U.S.C. § 5861(d),

which provides that “[i]t shall be unlawful for any person . . .

to receive or possess a firearm which is not registered to him

15966 UNITED STATES v. ZALAPA
in the National Firearms Registration and Transfer Record.”

There is no dispute that both firearm counts arose out of possession of a single unregistered firearm — a Sten, model M5, 9mm machine gun, serial number 237508. 

Zalapa pleaded guilty, without a plea agreement. Zalapa did

not object to Counts Two and Three before he entered a guilty

plea. The district court sentenced Zalapa to a $100 mandatory

special assessment, a 42-month sentence, and three years of

supervised release for each of the three counts. The sentences

were to be served concurrently, and the supervised release

terms were to run concurrently. Zalapa also did not object to

the convictions or sentences when they were entered by the

district court. 

Zalapa now appeals his sentences and convictions for

Counts Two and Three. We have jurisdiction under 28 U.S.C.

§ 1291. Zalapa contends that, because the convictions and

sentences under 26 U.S.C. § 5861(d) are multiplicitous, they

violate the Double Jeopardy Clause. We agree. 

Zalapa alternatively argues that, even if he waived the multiplicity objection by failing to object to his convictions and

sentences below, he is still entitled to relief due to ineffective

assistance of counsel. For the reasons discussed below, we

decline to reach this alternate ground and instead reverse

based on the district court’s plain error in sentencing Zalapa

on the multiplicitous counts and entering judgment.

II. Analysis

A. Multiplicitous Convictions and Sentences 

[1] We conclude that Zalapa’s convictions and sentences on

the firearm counts are multiplicitous. Where a defendant is

convicted of multiple violations of the same statute based

upon a single act or transaction, “the Supreme Court has

stated that the proper inquiry involves the determination of

UNITED STATES v. ZALAPA 15967
‘[w]hat Congress has made the allowable unit of prosecution.’ ” United States v. Keen, 104 F.3d 1111, 1118 (9th Cir.

1997) (quoting United States v. Universal C.I.T. Credit Corp.,

344 U.S. 218, 221 (1952)).1 We have recognized that “section

5861(d) expresses an unambiguous congressional intent to

make each firearm a unit of prosecution.” United States v.

Alverson, 666 F.2d 341, 347 (9th Cir. 1982) (emphasis

added). Similarly, we have held that it was not Congress’s

intent to impose multiple punishments for possessing a single

firearm even if that firearm violates different subsections of

26 U.S.C. § 5861. See United States v. Edick, 603 F.2d 772,

773-75 (9th Cir. 1979). 

[2] Accordingly, convicting and sentencing Zalapa for both

firearm counts resulted in multiplicitous sentences and convictions and violated the Double Jeopardy Clause. 

B. Waiver 

[3] We now address whether Zalapa waived his right to

challenge the multiplicitous convictions and sentences by failing to object below. We conclude that he did not. In reaching

that conclusion, we recognize the distinction between objections to multiplicity in the indictment, which can be waived,

and objections to multiplicitous sentences and convictions,

which cannot be waived. See United States v. Smith, 424 F.3d

992, 1000 & n.4 (9th Cir. 2005) (“Multiplicity of sentences is

unlike the issue of multiplicity of an indictment which can be

waived if not raised below.”). 

1The convictions at issue here, both arising under the same statute, are

different from convictions for conduct punishable under two or more separate statutes. Compare Keen, 104 F.3d at 1118 with Ball v. United States,

470 U.S. 856, 861 (1985). Multiplicity where the same conduct is punished under separate statutes requires application of the test set forth in

Blockburger v. United States, 284 U.S. 299, 304 (1932), which permits

double punishment only where each charge requires proof of an element

not required by the other. Ball, 470 U.S. at 861. Because Zalapa’s convictions for Counts Two and Three arose under the same statute, 26 U.S.C.

§ 5861(d), we do not apply the Blockburger test. 

15968 UNITED STATES v. ZALAPA
This conclusion is consistent with our holding in Launius

v. United States, 575 F.2d 770 (9th Cir. 1978). In that case,

we held that a defendant’s guilty plea to a multiplicitous

indictment did not constitute a waiver of the right to raise a

double jeopardy claim as to his multiplicitous convictions and

sentences. Id. at 771-72. We also recognized that Rule 12 of

the Federal Rules of Criminal Procedure, the rule relating to

pretrial motions, “ ‘applies only to objections with regard to

the error in the indictment itself.’ ” Id. at 772 (quoting United

States v. Rosenbarger, 536 F.3d 715, 721-22 (6th Cir. 1976)).

We further recognized that even though “ ‘dismissal of a multiplicitous indictment is not required’ ” under Rule 12, “ ‘if

sentences are imposed on each count of that multiplicious

indictment the defendant is not forced to serve the erroneous

sentence because of any waiver.’ ” Id. (quoting Rosenbarger,

536 F.3d at 721-22. 

We recently reaffirmed this principle in United States v.

Ankeny, 502 F.3d 829, 838-39 (9th Cir. 2007). In Ankeny, the

defendant did not object to a multiplicitous indictment before

pleading guilty. Id. at 838. Instead, he moved to dismiss the

multiplicitous counts only after the district court accepted his

guilty plea. Id. The court rejected the government’s argument

that Ankeny waived any objection to the form of the indictment by failing to object before the district court accepted his

guilty plea. In holding that Ankeny need not have objected

before his guilty plea was accepted, the court observed that

“any objection to the indictment presumably would have been

overruled because the government still would have had the

opportunity to present proof of separate acquisition and possession.” Id. Ankeny “lodged his objection at the appropriate

time” by moving to dismiss the multiplicitous counts prior to

sentencing. See id.

The court then observed that “the plain error standard

applies when the defendant failed to raise the issue of multiplicitous sentences in the district court, which was not the

case here.” Id. The court noted that “even if the plain error

UNITED STATES v. ZALAPA 15969
standard did apply, Defendant’s conviction of multiple counts

of being a felon in possession of a firearm, rather than a single

count, harmed his substantial rights . . . .” Id. at 839 (internal

citations omitted). 

[4] Our case law distinguishing between objections to multiplicity in the indictment itself and objections to multiplicitous convictions and sentences follows explicit Supreme Court

precedent. See Ball v. United States, 470 U.S. 856, 859

(1985). In Ball, the Supreme Court held that the district court

has a duty to resolve multiplicitous charges only after the jury

returns a guilty verdict on the multiplicitous charges. Id. at

865. “Should the jury return guilty verdicts for each [multiplicitous] count, . . . the district judge should enter judgment on

only one of the statutory offenses.” Id. 

The government argues that United States v. Klinger, 128

F.3d 705, 708 (9th Cir. 1997), controls our decision in this

case. We disagree. Klinger dealt only with a challenge to the

multiplicitous form of the indictment and not with a challenge

to multiplicitous convictions and sentences based on double

jeopardy. In Klinger, consistent with our precedent on this

issue, we held that the defendant waived any challenge to the

form of a multiplicitous indictment by failing to object below.

Id. at 708; see also United States v. Smith, 866 F.2d 1092,

1096 (9th Cir. 1989) (observing that “courts have addressed

under Rule 12(b)(2) such defenses as misnomer, duplicity or

multiplicity . . . and other defects in the indictment or information that go to matters of form rather than substance”). 

[5] Here, like the defendants in the 2005 Smith decision,

Launius, and Ankeny, Zalapa challenges only his multiplicitous convictions and sentences, not the form of the indictment.

Zalapa voluntarily pleaded guilty to all three counts and did

not object to the form of the indictment in the district court.

By failing to object to the multiplicitous indictment before

pleading guilty, Zalapa waived any objection to the form of

the indictment. Klinger, 128 F.3d at 708. Zalapa did not, how15970 UNITED STATES v. ZALAPA
ever, waive his right to object to his sentences and convictions

as multiplicitous on appeal. See Launius, 575 F.2d at 772;

Smith, 424 F.3d at 1000 & n.4. 

C. Plain Error

We hold that it was plain error for the district court not to

vacate one of the firearm counts before entering judgment and

sentencing Zalapa. 

Where a defendant fails to raise the issue of multiplicity of

convictions and sentences before the district court, we review

the district court’s decision for plain error. See Smith, 424

F.3d at 999-1000; Ankeny, 502 F.3d at 838. Under plain error

review, a defendant “must show (1) an error, (2) that is plain,

(3) that affects substantial rights, and (4) that seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Smith, 424 F.3d at 1000 (citing Johnson v. United

States, 520 U.S. 461, 467 (1997)).

[6] “[A]n error is not plain unless it is ‘clear’ or ‘obvious.’ ” Smith, 424 F.3d at 1002 (quoting United States v.

Olano, 507 U.S. 725, 734 (1993)). “Plain error is so clear-cut,

so obvious, a competent district judge should be able to avoid

it without benefit of objection.” Id. (internal quotation marks

omitted). Because Zalapa’s convictions and sentences for

Counts Two and Three arose out of possession of a single

firearm and because our prior case law clearly describes Congress’s intent to avoid imposing multiple punishments under

26 U.S.C. § 5861 for possessing a single firearm, the district

court plainly erred when it entered judgment and sentenced

Zalapa on both firearm counts. See Alverson, 666 F.2d at 347;

Edick, 603 F.2d at 773-75. 

[7] The multiplicitous convictions and sentences affect

Zalapa’s substantial rights because they have collateral consequences, including the possibility of an increased sentence

under a recidivist statute for a future offense. See Ball, 470

UNITED STATES v. ZALAPA 15971
U.S. at 864-65; Rutledge v. United States, 517 U.S. 292, 301-

03 (1996). Each conviction also carried with it a mandatory

$100 special assessment, which constitutes additional punishment that would not have been imposed absent the multiplicitous conviction and sentence. See Rutledge, 517 U.S. at 301-

03. Imposition of an erroneously-imposed sentence, even a

concurrent sentence, can have significant collateral consequences that we cannot foretell at the time of decision. See

Guam v. Torre, 68 F.3d 1177, 1180 (9th Cir. 1995) (quoting

Ball, 470 U.S. at 864-65) (“The law is plain that multiple convictions, apart from concurrent sentences, carry ‘adverse collateral consequences that may not be ignored.’ ”); see also

United States v. Kincaid, 898 F.2d 110, 112 (9th Cir. 1990)

(noting that although neither the defendant nor the court could

“identify a specific prejudice which may stem from his erroneous sentence, we are unwilling to place upon [the defendant] the risk that such a prejudice will manifest itself in the

future”). These collateral consequences affect Zalapa’s substantial rights and therefore justify vacating the multiplicitous

conviction and sentence.2

[8] Finally, the district court’s error was serious enough to

“ ‘affect[ ] the fairness, integrity or public reputation of judicial proceedings.’ ” See Olano, 507 U.S. at 732 (quoting

United States v. Young, 470 U.S. 1, 15 (1985)). Because the

multiplicitous convictions and sentences carry with them significant potential for collateral consequences, we conclude

that the district court’s error seriously affected the fairness of

the judicial proceedings. By convicting and sentencing Zalapa

on both firearm counts, the district court’s plain error exposed

Zalapa to double jeopardy, which makes his convictions fundamentally unfair.

2The government argues that any adverse collateral consequences result

from Zalapa’s convictions, and not his sentences, and that he waived any

challenge to the convictions by failing to object to the indictment. Rutledge drew no such distinction in vacating one of the defendant’s sentences and convictions despite his not objecting at trial, and we decline to

do so. See 517 U.S. at 302-03, 307. 

15972 UNITED STATES v. ZALAPA
III. Conclusion

[9] In summary, we conclude that Counts Two and Three

are multiplicitous. The remedy for meritorious multiplicity

claims is for the district court to vacate the multiplicitous conviction and sentence. See Rutledge, 517 U.S. at 307; Ball, 470

U.S. at 864. In accordance with Ball, we therefore remand to

the district court with instructions to vacate the multiplicitous

conviction, sentence, and $100 mandatory special assessment

for one of the two counts under 26 U.S.C. § 5861(d). 

REVERSED AND REMANDED

UNITED STATES v. ZALAPA 15973