UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4071

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANDRE GANEOUS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Clarksburg. Irene M. Keeley, 

District Judge. (1:09-cr-00056-IMK-JSK-1)

Submitted: October 22, 2010 Decided: November 9, 2010

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Martin P. Sheehan, SHEEHAN & NUGENT, PLLC, Wheeling, West 

Virginia, for Appellant. Betsy C. Jividen, United States 

Attorney, David E. Godwin, Assistant United States Attorney, 

Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Andre Ganeous was convicted by a federal jury of 

maiming, in violation of 18 U.S.C. § 114 (2006), and assault 

with a deadly weapon, in violation of 18 U.S.C. § 113(a)(3) 

(2006). The district court sentenced Ganeous to sixty-three 

months of imprisonment for each count, to run concurrently, and 

Ganeous now appeals. Finding no error, we affirm.

Ganeous argues that his convictions violated the 

prohibition against double jeopardy because the indictment was 

multiplicitous, as assault with a deadly weapon is a lesser 

included offense of maiming. As Ganeous did not raise this 

issue in the district court, it is reviewed for plain error. 

See United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). 

To establish plain error, Ganeous must show that an error 

occurred, that the error was plain, and that the error affected 

his substantial rights. See United States v. Olano, 507 U.S. 

725, 732 (1993). Even if Ganeous makes this three-part showing, 

we will not exercise our discretion to correct the error “unless 

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

reputation of judicial proceedings.” Id. (internal quotation 

marks and citation omitted). 

The Double Jeopardy Clause of the Fifth Amendment 

protects criminal defendants from repeated prosecutions for the 

same offense, Oregon v. Kennedy, 456 U.S. 667, 671 (1982), and 
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from multiple punishments for the same offense. United 

States v. Martin, 523 F.3d 281, 290 (4th Cir.), cert. denied, 

129 S. Ct. 238 (2008). When an indictment has charged multiple 

statutory offenses based on the same conduct, whether those 

charges constitute the same offense is determined by reference 

to whether each charged offense requires proof of some fact that 

the other does not require. United States v. Goodine, 400 F.3d 

202, 207 (4th Cir. 2005); see also United States v. Luskin, 926 

F.2d 372, 377 (4th Cir. 1991) (offenses are not identical as 

long as each “requires proof of an additional fact [which] the 

other does not”) (quoting Blockburger v. United States, 284 U.S. 

299, 304 (1932)). A defendant may be convicted of two separate 

offenses arising from a single act if each charge requires proof 

of a fact not essential to the other. United States v. Dixon, 

509 U.S. 688, 702-12 (1993).

In addition, “two different statutes define the same 

offense [when] one is a lesser included offense of the other.” 

Rutledge v. United States, 517 U.S. 292, 297 (1996) (internal 

quotation marks omitted). For an offense to be a lesser 

included offense, that offense must require no proof beyond that 

necessary for a conviction on the greater offense. See Illinois

v. Vitale, 447 U.S. 410, 417 (1980). We have thoroughly 

reviewed the record and conclude that assault with a deadly 

weapon is not a lesser included offense of maiming as each 
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offense requires an element of proof that the other does not. 

Therefore, Ganeous was not convicted of multiple counts charging 

the same offense and his double jeopardy rights were not 

violated by the convictions.

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED