USA v. Montemayor, No. 21-40162 (5th Cir. 2022)
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Two members of a group of criminals whose business model was to steal drugs and money from other criminals were jointly tried. The multiple counts in the indictment charged the defendants with offenses involving drugs, firearms, carjackings, and robbery. Both Defendants were convicted after a jury trial. Among the many appellate issues are the propriety of introducing certain evidence gathered from cell phones, possible errors in the description of certain offenses in the indictment and jury instructions, and whether the judge improperly made fact findings about drug quantities.
The Fifth Circuit vacated and remanded the judgment of conviction on Counts Six and Eight for resentencing, reversed the judgment of conviction on Count Seventeen and remanded for entry of a judgment of acquittal, and affirmed in all other respects. In regards to counts Six and Eight, the court explained that though the two counts allege separate incidents on different dates, multiple firearm counts cannot be predicated on the same conspiracy: “imposing consecutive sentences in these circumstances is inconsistent with the rule in this circuit.” The drug conspiracy was the only predicate offense for each of these counts. The Government stated and the court agreed, the convictions on those two counts must be vacated and, on remand, the Government will be required to elect which count to dismiss.
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