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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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre
Ganeous
was
convicted
by
federal
jury
of
maiming, in violation of 18 U.S.C. 114 (2006), and assault
with
(2006).
deadly
weapon,
in
violation
of
18
U.S.C.
113(a)(3)
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.
argues
that
his
convictions
violated
the
prohibition against double jeopardy because the indictment was
multiplicitous,
as
assault
with
included offense of maiming.
deadly
weapon
is
lesser
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.
Id. (internal quotation
marks and citation omitted).
The
Double
Jeopardy
Clause
of
the
Fifth
Amendment
protects criminal defendants from repeated prosecutions for the
same offense, Oregon v. Kennedy, 456 U.S. 667, 671 (1982), and
2
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
based
on
the
same
conduct,
whether
those
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.
United States v. Dixon,
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
lesser
included offense, that offense must require no proof beyond that
necessary for a conviction on the greater offense.
v.
Vitale,
reviewed
weapon
447
the
is
U.S.
record
not
410,
417
(1980).
We
and
conclude
that
lesser
included
offense
have
assault
of
See Illinois
thoroughly
with
maiming
deadly
as
each
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
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
