Opinion
CR 19-26-M-DWM
08-12-2020
UNITED STATES OF AMERICA, Plaintiff, v. JOSE DANIEL RAMIREZ, Defendant.
ORDER
On June 16, 2020, Defendant Jose Daniel Ramirez entered guilty pleas to Count I of the Indictment, charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and Count II of the Indictment, charging him with being a user addicted to controlled substances in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). Under Ohio v. Johnson, 467 U.S. 493 (1984), and United States v. Davenport, 519 F.3d 940 (9th Cir. 2008), Ramirez cannot be sentenced on both counts of conviction. Davenport instructs that his conviction must be vacated "on one of the two counts, allowing for it to be reinstated without prejudice if his other conviction should be overturned on direct or collateral review." 519 F.3d at 948. The decision on which conviction to vacate is in the Court's discretion. United States v. Hector, 577 F.3d 1099, 1103 (9th Cir. 2009).
Accordingly, IT IS ORDERED that Ramirez's conviction on Count II, User Addicted to Controlled Substances in Possession of Firearm in violation of 18 U.S.C. § 922(g)(3), is VACATED. Ramirez will be sentenced on Count I only.
DATED this 12th day of August, 2020.
/s/_________
Donald W. Molloy, District Judge
United States District Court