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United States v. Foster

United States Court of Appeals, Sixth Circuit

August 28, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
LYNCE P. FOSTER, Defendant-Appellant

Argued, June 25, 2014

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 2:09-cr-5--J. Ronnie Greer, District Judge.

ARGUED:

Frederick Liu, HOGAN LOVELLS U.S. LLP, Washington, D.C., for Appellant.

Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Frederick Liu, HOGAN LOVELLS U.S. LLP, Washington, D.C., René e Paradis, San Francisco, California, for Appellant.

Luke A. McLaurin, Robert M. Reeves, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: ROGERS and KETHLEDGE, Circuit Judges; MALONEY, District Judge.[*]

OPINION

Page 611

ROGERS, Circuit Judge.

Lynce Foster was sentenced to 622 months' imprisonment for two counts of drug possession, two counts of firearm possession, one count of drug distribution, and one count of conspiracy. Both parties now agree that Foster's conviction and sentence for one of the drug possession counts and one of the firearm possession counts violate the Double Jeopardy Clause because those two counts duplicate other counts for which Foster was convicted and sentenced. The issue before us is whether the sentences for the remaining four counts should also be vacated and remanded for resentencing. The 120-month sentence for the duplicative drug possession count was set to run concurrently with three sentences of equal or greater length, such that its vacatur could not logically be a basis for increasing the overall sentence for the remaining counts. And the district court made clear at sentencing that the duplicative firearm possession count did not affect the length of other parts of the sentence. There is, accordingly, no basis for the district court to increase the sentence on the four remaining counts. In vacating the two duplicative counts, we decline to permit resentencing on the remaining counts.

On February 5, 2006, a police car pulled up behind a truck driven by Foster. When Foster abandoned the truck and fled on foot, officers searched the truck, discovering a pistol inside and 225.8 grams of cocaine and a Bryco Jennings pistol on the ground nearby. In January 2009, the Federal Government indicted Foster for possessing cocaine with intent to distribute, possessing a firearm in furtherance of a drug trafficking crime, and possessing the Bryco Jennings pistol and ammunition as a convicted felon. Shortly thereafter, the police linked Foster to ...


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