NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-2488
____________
UNITED STATES OF AMERICA
v.
RAYMOND ZARECK,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 2-09-cr-00168-001)
District Judge: Honorable Joy Flowers Conti
______________
Submitted Pursuant to L.A.R. 34.1(a)
September 11, 2014
Before: McKEE, Chief Judge, SMITH and SHWARTZ, Circuit Judges
(Opinion Filed: December 12, 2015)
__________
OPINION
__________
McKEE, Chief Judge.
Raymond Zareck appeals his convictions and sentence for possession of a firearm
by a convicted felon and possession of a firearm and/or ammunition by an unlawful user
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding
precedent.
of a controlled substance. For the reasons stated below, we will affirm the denial of the
motion to suppress, however, as conceded by the government, there was an error in the
sentence and we will vacate the sentence that was imposed.1,2
I.
A. Motion to Suppress
Since the district court “base[d] its probable cause ruling on facts contained in
[the] affidavit, we exercise plenary review over the district court’s decision.”3 The
district court assessed whether the magistrate had a “‘substantial basis’” for determining
if probable cause existed.4 A magistrate may issue a search warrant if “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”5
Additionally, a magistrate is “‘entitled to draw reasonable inferences about where
evidence is likely to be kept, based on the nature of the evidence and the type of
offense.’”6
Zareck admitted to disassembling explosive devices in his home. He told the
police that explosive powder remained in his home and that he had not taken any safety
1
This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
2
Zareck’s claims that the district court erred in categorizing certain prior convictions as
“serious drug offenses” for purposes of sentence enhancements and that the district court
violated Zareck’s Fifth and Sixth Amendment rights are meritless and need not be
discussed. See United States v. Abbott, 748 F.3d 154, 159–60 (3d Cir. 2014). Zareck’s
Fifth and Sixth Amendment claims are foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998) and United States v. Blair, 734 F.3d 218, 226–29 (3d Cir.
2013).
3
United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005).
4
Id. at 262 (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)).
5
United States v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010) (quoting Gates, 462 U.S.
238)).
6
United States v. Hodge, 246 F.3d 301, 305–06 (3d Cir. 2001).
2
precautions to minimize the risk of fire or explosion. Experienced members of the bomb
squad believed that this created a potential risk of an explosion and they urged police to
obtain a search warrant for Zareck’s residence to alleviate what they viewed as an
obvious and immediate danger to the neighborhood. Thus, the magistrate clearly had a
substantial basis for finding probable cause to issue the search warrant and Zareck’s
argument to the contrary is frivolous.
B. Sentencing
To his credit and the credit of his office, Assistant United States Attorney Michael
Leo Ivory appropriately concedes that the district court erred by imposing sentences for
the violation of 18 U.S.C. § 922(g)(1) as well as § 922(g)(3). Though we have not yet
resolved this particular issue, our sister circuit courts of appeals have unanimously found
that although a defendant may be charged with violations of multiple subsections of 18
U.S.C. § 922(g), it is impermissible to impose separate sentences for each subsection of
the statute based on a single incident of possession.7
Although we have authority pursuant to 28 U.S.C. § 2106 to modify the judgment
of sentence on appeal, we think it more prudent to vacate the judgment of sentence and
remand to the district court to allow that court to impose sentence on whichever
subsection it deems appropriate. In United States v. Parker,8 the Court of Appeals for the
7
See, e.g., United States v. Parker, 508 F.3d 434, 441 (7th Cir. 2007); United States v.
Richardson, 439 F.3d 421, 422 (8th Cir. 2006) (examining precedent supporting the
imposition of one sentence); United States v. Shea, 211 F.3d 658, 673 (1st Cir. 2000).
8
508 F.3d 434 (7th Cir. 2007). These cases are consistent with our view that it is
impermissible to have multiple convictions for possession of a firearm and ammunition
3
Seventh Circuit vacated the judgment of sentence and remanded to the district court when
the district judge imposed two sentences for Parker’s possession of handgun as a felon
and as an illegal drug user. 9 The court relied on Ball v. United States10 when determining
to vacate the sentence because “there, the Court held that a muliplicious conviction must
be vacated regardless of whether an increased sentence or extra assessment was imposed,
based on the stigma, impeachment potential, and effect on future sentencing or parole
eligibility.”11
Accordingly, we will vacate the judgment of sentence and remand for resentencing
before the district court.
II.
For the reasons expressed above, we will affirm the district court’s denial of the
motion to suppress and vacate the judgment of sentence and remand to the district court
to determine the appropriate sentence.
under 18 U.S.C. § 922(g)(1) arising from for a single "incident" of possession. United
States v. Tann, 577 F.3d 533, 537 (3d Cir. 2009).
9
Parker, 508 F.3d at 441 .
10
470 U.S. 856 (1985).
11
Parker, 508 F.3d at 441.
4