United States of America, Plaintiff-appellee, v. Joseph Briant Mcgee, Defendant-appellant, 999 F.2d 545 (9th Cir. 1993)

MEMORANDUM^** 

We deferred review of McGee's attack on his enhanced sentence on count five of the indictment, pending the Supreme Court's decision in Deal v. United States, 113 S. Ct. 1993 (1993). Deal concludes that multiple convictions from one indictment under 18 U.S.C. § 924(c) arise " [i]n the case of his second or subsequent conviction" within the meaning of that section. Id. at 1999. After reviewing the supplemental letter briefs, we determine that Deal forecloses McGee's attack.

The government asks us for the first time to remand for resentencing on count six because it argues the sentence on that count also must be enhanced to twenty years. The government's request is tardy. It had a right to appeal the five-year sentence imposed on count six on the ground that the sentence violated section 924. 18 U.S.C. § 3742(b) (1) (1988). That argument would have been identical to the defense it raised in support of the twenty-year sentence on count five. Because the government did not attack the count six conviction earlier, we refuse to consider its challenge now. United States v. Turner, 898 F.2d 705, 711 (9th Cir.), cert. denied, 495 U.S. 962 (1990).

The sentences are AFFIRMED.