IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 24, 2009
No. 08-10018 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
KENNETH LEE WILLIS
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
Before JOLLY, SMITH, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In 1998, the government charged Kenneth Lee Willis with two counts of
being a felon in possession of a firearm. The two counts were premised on
Willis’s simultaneous possession of two firearms and were, therefore,
multiplicitous in violation of the Fifth Amendment’s prohibition against double
jeopardy. Willis, however, did not object to the indictment. He was tried and
convicted on both counts, and was sentenced to two terms of imprisonment and
two terms of supervised release, all to run concurrently.
Following his convictions, Willis filed an unsuccessful direct appeal and
later two unsuccessful motions to vacate judgment under 28 U.S.C. § 2255. In
each of those proceedings, Willis failed to raise the multiplicity of his convictions.
No. 08-10018
There is no question – indeed it is conceded by the government – but that the
second underlying conviction was multiplicitous and therefore unconstitutional.
See, e.g., United States v. Berry, 977 F.2d 915, 918-20 (5th Cir. 1992) (indictment
charging three counts of unlawful possession of a firearm, premised on the
simultaneous possession of three firearms, was multiplicitous). Had Willis
raised the error, his second sentence would have been vacated. Id. at 920
(multiplicitous convictions will not be affirmed on the ground that their
sentences run concurrently and defendant who waives opportunity to challenge
multiplicitous conviction may nonetheless challenge multiplicitous sentence).
Willis served his sentences concurrently and was released in 2007. After
he violated the conditions of his release, his two terms of supervised release were
revoked. At his revocation hearing, Willis, for the first time in any proceeding,
pointed out that the two underlying convictions were multiplicitous and asked
that the sentencing judge impose a new sentence for only one revoked term of
supervised release. The sentencing judge instead imposed a new sentence of
incarceration of 24 months on each term of supervised release, this time to run
consecutively.
Willis now appeals the second of the two revocation sentences as
unreasonable, on the ground that it is multiplicitous.
The government is correct that, although there is no question the
underlying convictions were multiplicitous, Willis may not challenge those
underlying convictions in this appeal. It is by now well-established that a
defendant may not use the appeal of a revocation of supervised release to
challenge an underlying conviction or original sentence. United States v.
Hinson, 429 F.3d 114, 116 (5th Cir. 2005) (may not challenge original sentence);
United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001) (may not challenge
indictment or drug quantity used at sentencing); United States v. Francischine,
512 F.2d 827, 828 (5th Cir. 1975) (may not challenge underlying conviction).
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No. 08-10018
Here, however, Willis does not challenge the validity of his two underlying
convictions. Indeed, he has already served the two original terms of
imprisonment. His appeal does not seek to disturb either the multiplicitous
underlying conviction or the multiplicitous original sentence. Instead, he
challenges the reasonableness of the second revocation sentence.
“[A]ppellate review of sentencing decisions is limited to determining
whether they are ‘reasonable.’” Gall v. United States, 552 U.S. — , 128 S.Ct.
586, 594 (2007). This court has yet to decide whether to subject revocation
sentences to the “unreasonable” or the “plainly unreasonable” standard of
review. See United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). We
need not resolve that issue here because, for the reason we explain, the second
revocation sentence in this case fails even the more exacting “plainly
unreasonable” standard of review.
There is no question but that the second revocation sentence is
multiplicitous in its own right.1 We do not hold, however, that the second
revocation sentence is not a legal sentence. That revocation sentence stems from
one of the two original sentences; that original sentence, which Willis has
already served, remains undisturbed and therefore legal. If the original
sentence is legal, then the revocation sentence, which depends upon it, is also
legal. Our opinion does not question the revocation sentence’s legality.
We question instead the mere fact of the second revocation sentence, which
would require that Willis serve two revocation sentences, consecutively, as a
penalty for what all parties now agree was only one offense. The second
revocation sentence would therefore have the practical effect of incarcerating
Willis for an additional twenty-four months. We especially note that the original
1
Case law acknowledges that a sentence may be multiplicitous in it own right. See
Berry, 977 F.2d at 920 (defendant who waives opportunity to challenge multiplicitous
conviction may nonetheless challenge multiplicitous sentence).
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No. 08-10018
sentence, including the term of supervised release, was imposed to run
concurrently. The fact of its multiplicity, although legal, is, under all
circumstances present, plainly unreasonable.
We view our holding in this case to be a narrow one. We hold only that
Willis’s revocation sentence, which would require that he actually serve, i.e.,
consecutively serve, two or more sentences as a penalty for a single offense, is
plainly unreasonable. We limit the precedential value of our holding to cases
presenting indistinguishable facts in all material respects.
Finally, Willis also claims the district court violated his right to allocute
before his sentence was pronounced. See F ED. R. C RIM. P. 32(i)(4)(A)(ii)
(defendant must have opportunity to speak before sentence is imposed). Because
Willis did not object at the revocation hearing, we review for plain error only.
United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). The
revocation hearing transcript reveals that in fact the district court twice invited
Willis to speak. Initially, Willis told the court he had nothing to say; later, he
said only that the allegations against him were not true. The district court did
not deny Willis his right to allocute; therefore, we find no plain error.
Accordingly, for the reasons stated herein, Willis’s first revocation
sentence is AFFIRMED. His second revocation sentence is VACATED.
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