United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2007
Charles R. Fulbruge III
Clerk
No. 05-41717
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME CASTRO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2524
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jaime Castro appeals his convictions and sentences for the
simultaneous possession of a firearm and of ammunition. He argues
that the convictions are multiplicitous and violate double
jeopardy. The Government asserts that Castro waived this argument
by failing to file a pretrial motion challenging the indictment.
The Government also argues that Castro’s argument is without merit
because his sentences are concurrent and because it can be inferred
that Castro obtained the firearm and ammunition on different
occasions.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-41717
-2-
Generally, a defendant must file a pretrial motion challenging
duplicitous charges to preserve the issue for appeal. United
States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001); FED. R. CRIM. P.
12(b)(2). However, a complaint challenging multiplicitous
sentences may be raised for the first time on appeal. Dixon, 273
F.3d at 642. Simultaneous convictions and sentences for the same
criminal act involving possession of a firearm and possession of
ammunition violate double jeopardy. United States v. Berry, 977
F.2d 915, 919 (5th Cir. 1992). The fact that the district court
ordered Castro’s sentences to run concurrently does not change this
result. See id. at 920; United States v. Kimbrough, 69 F.3d 723,
729 (5th Cir. 1995). Further, there is nothing in the record to
prove that Castro obtained the firearm and ammunition on different
occasions.
Castro also argues that the district court erred in failing to
impose his federal sentence to run concurrently with his not yet
imposed state sentence and in failing to give him credit for time
served in state custody. It is unnecessary to address these
issues.
Accordingly, we VACATE Castro’s sentences and REMAND the
matter for dismissal of the duplicitous conviction and for
resentencing.