US v. Andre Ganeous

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00056-IMK-JSK-1 Copies to all parties and the district court/agency. [998462318] [10-4071]

US v. Andre Ganeous

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Date Filed: 11/09/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4071 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE GANEOUS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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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. Ganeous Finding no error, we affirm. that his convictions violated the

argues

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. 725, 732 (1993). See United States v. Olano, 507 U.S.

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." marks and citation omitted). The Double Jeopardy Clause of the Fifth Amendment Id. (internal quotation

protects criminal defendants from repeated prosecutions for the same offense, Oregon v. Kennedy, 456 U.S. 667, 671 (1982), and 2

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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). statutory offenses When an indictment has charged multiple on the same conduct, whether those

based

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. 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 United States v. Dixon,

included offense, that offense must require no proof beyond that necessary for a conviction on the greater offense. v. Vitale, the 447 U.S. 410, and 417 (1980). that We assault of See Illinois thoroughly a deadly each

have with

reviewed weapon

record a

conclude included 3

is

not

lesser

offense

maiming

as

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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. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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