United States of America v. Brandon Tann

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2378
_____________
UNITED STATES OF AMERICA
v.
BRANDON TANN,
Appellant
_____________
On Appeal from the United States District Court
for the District of Delaware
(Criminal No. 07-55-JJF)
District Judge: Honorable Joseph J. Farnan, Jr.
Argued March 10, 2009
Before: FUENTES, CHAGARES, and ALDISERT, Circuit
Judges.
____________
(Filed: August 24, 2009)
EDSON A. BOSTIC
Federal Public Defender
DANIEL I. SIEGEL (Argued)
Legal Research and Writing Attorney
Office of the Federal Public Defender
704 King Street, Suite 110
Wilmington, Delaware 19801
Counsel for Appellant

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2
COLM F. CONNOLLY
United States Attorney
SHAWN A. WEEDE (Argued)
Assistant United States Attorney
1007 N. Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899-2046
Counsel for Appellee
____________
OPINION OF THE COURT
____________
CHAGARES, Circuit Judge.
Brandon Tann was convicted on two counts of violating the
felon-in-possession statute, 18 U.S.C. § 922(g)(1), for the illegal
possession of a firearm and ammunition. On appeal, Tann
contends that because the firearm and ammunition were possessed
simultaneously, he should have been convicted and sentenced on
only one violation of § 922(g)(1). For the reasons that follow, we
will affirm in part and remand in part.
I.
The facts pertinent to this appeal are undisputed. On April
11, 2007, officers with the Wilmington Police Department received
information that Tann, an individual with whom the officers were
familiar, was in possession of a handgun at the 1100 block of A
Street. Responding officers observed Tann at that location. When
the officers exited their vehicles in full uniform, Tann ran into a
residence at 1004 A Street, and closed the door behind him.
The officers followed Tann into the residence and up its
stairs. When police reached the top of the stairs, Tann exited a
bathroom. Police ordered Tann to the ground and placed him in
custody. The Presentence Report (“PSR”) describes the events that
followed:

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Section 922(g)(1) provides, in relevant part:1
It shall be unlawful for any person . .
. who has been convicted in any court
o f a c r i m e p u n i s h a b l e b y
imprisonment for a term exceeding
one year . . . to . . . possess in or
affecting commerce, any firearm or
ammunition; or to receive any firearm
or ammunition which has been
shipped or transported in interstate or
foreign commerce.
18 U.S.C. § 922(g)(1).
33
A search of the bathroom was
conducted where officers located a
black .9mm Taurus handgun, Serial
Number TQH07238, with duct tape on
the bottom of the magazine. One
brass Luger .9mm round was found in
the chamber, and ten Luger .9mm
rounds were found in the magazine.
After waiving his Miranda rights, the
defendant stated the gun was not his,
but he had some ammunition in his
pocket. Additionally, the defendant
stated he had just flushed two bags of
marijuana down the toilet. Thereafter,
an officer recovered 14 .9mm rounds
of ammunition from a clear plastic bag
in Mr. Tann’s pocket. The
ammunition found in the defendant’s
pocket and the ammunition from the
.9mm Taurus firearm were identical.
SR ¶ 7.
Tann was charged with two violations of § 922(g)(1).1

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The District Court had jurisdiction pursuant to 18 U.S.C. §2
3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
44
Count One charged that on April 11, 2007, Tann unlawfully
possessed a .9 mm handgun. Count Two charged that on April 11,
2007, Tann unlawfully possessed 14 rounds of .9 mm ammunition.
On October 15, 2007, Tann entered a guilty plea to one count of
being a felon in possession of a firearm, and one count of being a
felon in possession of ammunition, both in violation of 18 U.S.C.
§§ 922(g)(1). At sentencing, the District Court imposed a 57-
month term of imprisonment on the possession of a firearm
conviction (Count One) and a concurrent sentence of 57 months of
imprisonment on the possession of ammunition conviction (Count
Two). Pursuant to 18 U.S.C. § 1303, the District Court imposed
special assessments of $100.00 on each count. This appeal
followed.
II.
Tann contends that his two convictions for violating 18
U.S.C. § 922(g) constitute a single unit of prosecution, and that the
District Court erred in entering judgments of conviction and
sentences on both counts. Tann, however, failed to raise this2
argument before the District Court. Federal Rule of Criminal
Procedure 52(b) grants reviewing courts limited authority to correct
errors not timely raised and prescribes a plain error standard of
review in these circumstances. See United States v. Olano, 507
U.S. 725, 731, 732 (1993); see also United States v. Young, 470
U.S. 1, 15 (1985) (noting that Rule 52(b) is only “to be ‘used
sparingly’” and “to correct only ‘particularly egregious errors’”)
(quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).
The standard set forth in Rule 52(b) requires that “[t]here must be
an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’”
Olano, 507 U.S. at 732 (quoting Rule 52(b) (last alteration in
original)). Further, “Rule 52(b) leaves the decision to correct the
forfeited error within the sound discretion of the court of appeals,
and the court should not exercise that discretion unless the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (quotations marks, citations, and

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55
alterations omitted).
A.
We first consider whether the District Court’s entry of
separate convictions and sentences for simultaneous possession of
a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1)
constituted “error.” See Olano, 507 U.S. at 732-33 (noting that
“[d]eviation from a legal rule” constitutes “error” under Rule
52(b)). This, in turn, requires us to determine “‘[w]hat Congress
has made the allowable unit of prosecution’” for purposes of §
922(g)(1). See Bell v. United States, 349 U.S. 81, 81 (1955)
(quoting United States v. Universal C.I.T. Credit Corp., 344 U.S.
218, 221 (1952)).
Our starting point is the Supreme Court’s decision in Bell v.
United States. In Bell, as in this case, the Supreme Court
considered whether multiple violations of a statute, occurring in a
single transaction, supported multiple convictions under the statute.
The specific issue in Bell was whether two offenses or only one
offense occurred under the Mann Act, 18 U.S.C. § 2421, where the
defendant transported two women across state lines on the same
trip and in the same vehicle. The Mann Act made it a felony to
transport in interstate commerce “‘any woman or girl for the
purpose of prostitution.’” Bell, 349 U.S. at 82 (quoting § 2421)
(emphasis added). Analyzing § 2421, the Court found no clear
statement of intent as to the allowable unit of prosecution and
commented that Congress surely could have “defin[ed] what it
desire[d] to make the unit of prosecution.” Id. at 83. The Court
then determined that “[w]hen Congress leaves to the Judiciary the
task of imputing to Congress an undeclared will, the ambiguity
should be resolved in favor of lenity” for the defendant. Id.
Accordingly, the Court further determined that when Congress fails
to set the unit of prosecution “clearly and without ambiguity, doubt
will be resolved against turning a single transaction into multiple
offenses.” Id. at 84. Applying this rule to the facts before it, the
Court held that only one offense occurred under the Mann Act. See
id. at 82-84.
This Court has not yet addressed whether the simultaneous

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Section 922(h) prohibited “‘any person – (1) . . . who has3
been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year; . . . to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.’” Frankenberry, 696 F.2d at 244
(quoting § 922(h)(1)) (emphasis added).
At the time we considered the statute, § 1202(a) made it a4
crime when a person convicted of a felony “‘[r]eceives, possesses,
or transports in commerce or affecting commerce . . . any
firearm.”’ Frankenberry, 696 F.2d at 244 (quoting § 1202(a))
(emphasis added).
66
possession of a firearm and ammunition constitutes a single unit of
prosecution under § 922(g)(1). However, we do not write on a
blank slate.
In United States v. Frankenberry, 696 F.2d 239, 245 (3d Cir.
1982), we held that the simultaneous receipt of more than one
weapon cannot support multiple convictions under 18 U.S.C. §
922(h), the predecessor to the current version of § 922(g)(1).3
There, we acknowledged that our holding was in accord with every
other court that had considered the issue and that “[a]ll of these
decisions are based on the application of the rule of lenity as
expressed in Bell. . . .” Id. at 245. We noted that “as in Bell,
Congress could have defined the offense in such a way as to make
the offender liable to cumulative punishment for simultaneous
action,” but has chosen not “to do so in unambiguous language.”
Id. As a result, applying Bell and other precedent, we concluded
“that simultaneous receipt of more than one weapon covered by
section 922(h)(1) supports conviction for only one offense.” Id.
In United States v. Marino, 682 F.2d 449 (3d Cir. 1982), we
held that the simultaneous possession of several firearms by a
convicted felon constitutes a single offense under the former 18
U.S.C. § 1202(a) absent a showing that the weapons were4
separately stored or acquired. Id. at 455. There, we found
uncertainty as to the unit of prosecution intended by Congress for
violations of § 1202(a) because of the ambiguous use of the word
“any” preceding the object of the offense. Id. at 454. We observed

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See United States v. Parker, 508 F.3d 434, 440 (7th Cir.5
2007); United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006);
United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006) (en
banc); United States v. Verrecchia, 196 F.3d 294, 297-98 (1st Cir.
1999); United States v. Dunford, 148 F.3d 385, 390 (4th Cir.
1998); United States v. Cunningham, 145 F.3d 1385, 1398-99
(D.C. Cir. 1998); United States v. Keen, 104 F.3d 1111, 1119-20
(9th Cir. 1996); United States v. Hall, 77 F.3d 398, 402 (11th Cir.
1996), abrogation recognized by Hunter v. United States, 559 F.3d
1188, 1190 (11th Cir. 2009); United States v. Hutching, 75 F.3d
1453, 1460 (10th Cir. 1996); United States v. Berry, 977 F.2d 915,
919 (5th Cir. 1992) (“The evil Congress sought to suppress by
section 922 was the arming of felons; the section is based on the
status of the offender and not the number of guns possessed. For
the same reasons, we cannot conclude that Congress intended the
simultaneous possession of ammunition to stand as a distinct unit
77
that “[i]n many other instances in which the word ‘any’ was used
in a statutory definition of the unit of prosecution . . . the statute
has been found ambiguous.” Id. (citing Bell, 349 U.S. at 81); see
also United States v. Coiro, 922 F.2d 1008, 1014 (2d Cir. 1991)
(noting that “the word ‘any’ has typically been found ambiguous in
connection with the allowable unit of prosecution” (quotation
marks and citations omitted)). Finally, we noted that our holding
was in agreement “with all the other Circuits which have addressed
this question.” Marino, 682 F.2d at 454.
The language of the current § 922(g) – and, in particular, the
use of the word “any” – is consistent with, and equally ambiguous
as, the then-effective § 922(h) and § 1202(a) addressed in
Frankenberry and Marino, respectively. We apply the rationale of
those cases as well as that of Bell to hold that Tann’s possession of
both a firearm and ammunition, seized at the same time in the same
location, supports only one conviction and sentence under §
922(g)(1). In so holding, we join all of our sister courts of appeals
that have addressed this issue and are in agreement that the
allowable unit of prosecution under § 922(g) is the incident of
possession, regardless of whether a defendant possessed more than
one firearm, or possessed a firearm and ammunition. As a result,5

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of prosecution.”); United States v. Throneburg, 921 F.2d 654, 657
(6th Cir. 1990) (holding that separate counts under § 922(g) for
ammunition and firearm are appropriate units of prosecution, but
must merge for purposes of conviction and sentencing).
The Government does not argue that the District Court’s6
decision to enter a conviction and impose a sentence on each count
separately was without error. Indeed, Tann points out that the
United States Attorneys’ Manual (the “Manual”) advises that,
while it is appropriate to charge a defendant with separate counts
of unlawful weapons or ammunition possession under § 922(g),
and seek a verdict on each, Congress did not intend multiple
punishments for simultaneous possession of weapons and/or
ammunition. U.S. Dep’t of Justice, United States Attorney’s
Manual § 9-63.514 (1997) (Prosecutions Under 18 U.S.C. §
922(g)). Tann further points out that the Manual instructs, “Federal
prosecutors should not seek consecutive or concurrent sentences in
88
we conclude that the District Court erred in convicting and
sentencing Tann on both counts charged under § 922(g)(1).
B.
Pursuant to Rule 52(b), however, we may not reverse for
error alone, but must also resolve whether the error is “plain.” An
error is plain if it is “clear” or “obvious” under current law. Olano,
507 U.S. at 734.
Although our holding regarding the allowable unit of
prosecution under § 922(g) is a matter of first impression for this
Court, we find that the District Court’s error is plain. See United
States v. Miller, 527 F.3d 54, 73 (3d Cir. 2008) (concluding that
failure to merge lesser-included offense at sentence was plain error,
even though question was matter of first impression). In making
this determination, we note this Court’s analyses in Frankenberry
and Marino, dealing with analogous statutes. We also note that
those courts of appeals that have addressed this question are in
unanimous agreement that § 922(g)(1) does not support multiple
convictions for the simultaneous possession of more than one
firearm, or a firearm and ammunition. See infra note 5. We6

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this situation. Rather, the government should urge the court to
‘merge’ or ‘combine’ the multiple § 922(g) convictions . . . into
one conviction for sentencing purposes.” Id. (citing Throneburg,
921 F.2d at 657).
99
therefore hold that the District Court’s error in convicting and
sentencing Tann on both counts charged under § 922(g)(1) is plain.
C.
Having determined that the entry of multiplicitous
convictions was error, and that the error is plain, we next consider
whether that plain error “affect[ed] substantial rights.” Fed. R.
Civ. P. 52(b). In most cases, to have affected a defendant’s
substantial rights, a plain error must have caused the defendant
prejudice, in that it “affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734. It is the defendant who has
the burden to make “a specific showing of prejudice” to meet the
affected substantial rights requirement of Rule 52(b). Id. at 735.
1.
Two Supreme Court decisions set the legal landscape for
analyzing the issue of whether multiple convictions and sentences,
unauthorized by Congress, affect substantial rights.
In Ball v. United States, 470 U.S. 856 (1985), the Court held
that a felon possessing a firearm may not be convicted under both
§ 922(h) and § 1202(a) for possessing and receiving the same
weapon. 470 U.S. at 858. In such circumstances, the Court
rejected the argument that an appropriate remedy could be
“ordering one of the sentences to be served concurrently with the
other.” Id. at 864. Instead, the Court held that the proper remedy
would be to vacate one of the convictions. Id. In so holding, the
Court recognized that “[o]ne of the convictions, as well as its
concurrent sentence, is unauthorized punishment for a separate
offense.” Id. The Court then focused on the effect a second
conviction would have on the defendant, and reasoned that:

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10 10
The second conviction, whose
concomitant sentence is served
concurrently, does not evaporate
simply because of the concurrence of
the sentence. The separate conviction,
apart from the concurrent sentence,
has potential adverse collateral
consequences that may not be ignored.
For example, the presence of two
convictions on the record may delay
the defendant’s eligibility for parole or
result in an increased sentence under a
recidivist statute for a future offense.
Moreover, the second conviction may
be used to impeach the defendant’s
credibility and certainly carries the
societal stigma accompanying criminal
conviction. Thus, the second
conviction, even if it results in no
greater sentence, is an impermissible
punishment.
Id. at 864-65 (citations omitted) (emphasis in original).
The Supreme Court reaffirmed the Ball holding in Rutledge
v. United States, 517 U.S. 292 (1996). In Rutledge, the Court held
that a defendant’s conspiracy conviction was a lesser-included
offense of his conducting a continuing criminal enterprise
conviction. 517 U.S. at 294, 296. The Court then addressed the
fact that the district court imposed a concurrent sentence and a $50
special assessment for the second conviction. The Court
recognized that “[u]nder Ball, the collateral consequences of a
second conviction make it as presumptively impermissible to
impose it as it would be to impose any other unauthorized
cumulative sentence.” Id. at 302. Turning to the $50 special
assessment, the Court noted that although the defendant failed to
challenge it below, the additional assessment was “as much a
collateral consequence of the conspiracy conviction as the
consequences recognized by Ball would be.” Id. at 302-03. The
Court thus held that – despite the defendant’s failure to object

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11 11
before the trial court – the second conviction constituted
“cumulative punishment not authorized by Congress.” Id. at 303.
As a result, the Court in Rutledge concluded that “‘[o]ne of
[defendant’s] convictions, as well as its concurrent sentence, is
unauthorized punishment for a separate offense’ and must be
vacated.” Id. at 307-08 (quoting Ball, 470 U.S. at 864) (first
alteration in original).
We concluded that multiple convictions and sentences,
unauthorized by Congress, affect substantial rights in United States
v. Miller. In that case, we first determined that possessing child
pornography is a lesser-included offense of receiving child
pornography, and that the district court’s entry of separate
convictions on each charge contravened the Double Jeopardy
Clause. 527 F.3d at 71-72. In undertaking a plain error analysis,
we determined that the entry of convictions under both statutes at
issue was error and that the error was plain. Id. at 73. Turning to
the issue of whether the plain error affected substantial rights, we
recognized that “‘[t]he Fifth Amendment right to be free from
duplicative prosecutions and punishment is a hallmark of American
jurisprudence.’” Id. (quoting Jackson v. United States, 443 F.3d
293, 301 (3d Cir. 2006)) (alteration in original). We also
recognized that “[t]he entry of separate convictions for violation of
[both statutory sections] saddles the defendant with separate $100
special assessments and threatens him with ‘the potential adverse
collateral consequences’ of two convictions on child pornography
charges.” Id. at 73-74 (quoting Rutledge, 517 U.S. at 302). We
therefore concluded that the defendant’s substantial rights had been
affected by the entry of separate convictions on both counts. Id.
As in Miller, Tann’s substantial rights have been affected by
the entry of separate convictions for Counts One and Two. Tann’s
second conviction, at a minimum, carried with it a concurrent
sentence and an additional $100 assessment. Moreover, it is clear
that Tann may face adverse consequences based on the second §
922(g) conviction alone. Following Ball and Rutledge, numerous

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See, e.g., United States v. King, 554 F.3d 177, 180-81 (1st7
Cir. 2009); United States v. Ogba, 526 F.3d 214, 237 (5th Cir.
2008) (“[S]entences with special assessments imposed for
individual counts are not in fact ‘concurrent,’ no matter how small
the special assessments. Nor do we take lightly the collateral
effects of sentences, whether concurrent or consecutive. More
importantly, the sentence violates double jeopardy.”); United States
v. Zalapa, 509 F.3d 1060, 1064-65 (9th Cir. 2007); United States
v. Parker, 508 F.3d 434, 441 (7th Cir. 2007); United States v.
Bennafield, 287 F.3d 320, 324 (4th Cir. 2002); United States v.
Gore, 154 F.3d 34, 48 (2d Cir. 1998).
IOP 9.1 provides: “It is the tradition of this court that the8
holding of a panel in a precedential opinion is binding on
subsequent panels. Thus, no subsequent panel overrules the
holding in a precedential opinion of a previous panel. Court en
banc reconsideration is required to do so.”
12 12
courts of appeals, including this Court in Miller, have concluded7
that a defendant’s substantial rights are affected by the additional,
unauthorized conviction, even when the immediate practical effect
may not increase the defendant’s prison term, or may only be a
negligible assessment.
2.
The Government concedes that our decision in “Miller
stands for the rule articulated by [Tann].” Gov’t Br. 14. However,
the Government argues that “Miller lacks precedential weight”
because it conflicts with our earlier decision in United States v.
Gricco, 277 F.3d 339 (3d Cir. 2002). Gov’t Br. 15. The
Government supports its argument by pointing to our Internal
Operating Procedure (“IOP”) 9.1 and our cases applying that IOP8
that hold if our cases conflict, then “‘the earlier is the controlling
authority and the latter is ineffective as precedent[].’” Pardini v.
Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008)
(quoting United States v. Rivera, 365 F.3d 213, 213 (3d Cir.
2004)).
In Gricco, the two defendants argued that their convictions

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The decision cited was United States v. Roberts, 262 F.3d9
286 (4th Cir. 2001). The court in Roberts found that it was not a
deprivation of substantial rights for the district court to impose
“concurrent life and 30-year sentences, rather than consecutive
sentences totaling at least 240 years for [one defendant] and 380
for [the other].” Id. at 292. The court in Roberts, however, did not
cite the Supreme Court’s Ball or Rutledge opinions, nor did it
consider the effect of special assessments on the issue of
deprivation of substantial rights, despite Roberts being cited for
that proposition in Gricco. Id. at 292-94.
Subsequently, in United States v. Bennafield, 287 F.3d 320
(4th Cir. 2002), the Court of Appeals for the Fourth Circuit
considered whether it was plain error for the district court to enter
two judgments of conviction and sentence under 21 U.S.C. §
844(a). Under these more analogous facts, the court found that
there was error, that it was plain, and that it affected the
defendant’s substantial rights. Id. at 324. Regarding the
defendant’s substantial rights, the court reasoned “in addition to
being subjected to an additional conviction, which itself can have
collateral consequences, see Ball v. United States . . . , [defendant]
13 13
for tax evasion, in violation of 26 U.S.C. § 7201, and for making
false tax returns, in violation of 26 U.S.C. § 7206(1), merged and
that the district court entered convictions and sentences under both
statutes in error. 277 F.3d at 350. Because the defendants failed
to raise this argument before the district court, we undertook a
plain error review of the argument. Id. We began our review by
noting that “the parties’ briefs focus primarily on the question
whether the district court committed any error at all.” Id.
Nonetheless, we assumed there was error and that it was plain and
proceeded to the issue of whether the defendants’ substantial rights
were affected. Id. at 351. We acknowledged that the sentences
imposed on the two defendants were concurrent and that the
sentences were not increased by the failure to merge the two
counts. Id. Further, we stated that “[t]he only immediate practical
effects of the concurrent sentences . . . are special assessments
totaling $700 for each defendant.” Id. Citing a decision from the
Court of Appeals for the Fourth Circuit, we held that “[w]e do not9

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was prejudiced by the additional $100 special assessment.” Id.
14 14
believe that [defendants] have suffered a deprivation of ‘substantial
rights’” and, therefore, we found that the standard set forth in Rule
52(b) had not been met. Id. The Government is, of course,
correct that Gricco was decided before Miller. We acknowledge
as well that both Ball and Rutledge were decided by the Supreme
Court before our aforementioned cases and that Miller did not
mention Gricco. Despite Tann’s arguments seeking to distinguish
Gricco from Miller, we find our jurisprudence to be in direct
conflict.
Our Court makes every effort to maintain a consistent body
of jurisprudence and that is an underlying basis for our IOP 9.1.
And IOP 9.1 recognizes that our Court, sitting en banc, may correct
or revise prior panel decisions of our Court. In the unique
circumstance when our panel decisions conflict and our Court has
not spoken en banc, however, the earlier decision is generally the
controlling authority. Pardini, 524 F.3d at 426.
While we strive to maintain a consistent body of
jurisprudence, we also recognize the overriding principle that “[a]s
an inferior court in the federal hierarchy, we are, of course,
compelled to apply the law announced by the Supreme Court as we
find it on the date of our decision.” United States v. City of Phila.,
644 F.2d 187, 192 n.3 (3d Cir. 1980); see also Rivers v. Roadway
Express, Inc., 511 U.S. 298, 312 (1994) (observing “once the Court
has spoken, it is the duty of other courts to respect that
understanding of the governing rule of law”). That is why we have
observed that we “should not countenance the continued
application in this circuit of a rule, even of our own devising,
which is patently inconsistent with the Supreme Court’s
pronouncements.” Cox v. Dravo Corp., 517 F.2d 620, 627 (3d Cir.
1975); see also United States v. Singletary, 268 F.3d 196, 202 (3d
Cir. 2001) (noting that “our respect for uniformity of decisions
within this Court yields when a prior panel’s holding conflicts with
a holding of the Supreme Court”); United States v. Thevis, 665
F.2d 616, 626 (5th Cir. 1982) (noting that “although ordinarily a
panel must adhere to prior decisions of this court, our first duty is

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15 15
to follow the dictates of the United States Supreme Court”),
superceded on other grounds by Fed. R. Civ. Evid. 804(b)(6), as
recognized in United States v. Zlatogur, 271 F.3d 1025, 1028 (11th
Cir. 2001). Accordingly, a panel of our Court may decline to
follow a prior decision of our Court without the necessity of an en
banc decision when the prior decision conflicts with a Supreme
Court decision. See Mennen Co. v. Atl. Mut. Ins. Co., 147 F.3d
287, 294-95 n.9 (3d Cir. 1998) (holding that IOP 9.1 “gives way
when the prior panel’s holding is in conflict with Supreme Court
precedent”); Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir.
1996) (finding that “[a]lthough a panel of this court is bound by,
and lacks authority to overrule, a published decision of a prior
panel . . . a panel may reevaluate precedent in light of intervening
authority”); Rubin v. Buckman, 727 F.2d 71, 74 (3d Cir. 1984)
(Garth, J., concurring) (observing that where “a holding of this
Court is overruled or rejected by the Supreme Court. . . [our IOP]
does not require in banc consideration in order to align this Court’s
jurisprudence with Supreme court teaching.”).
A panel of our Court may decline to follow a prior decision
of our Court without the necessity of an en banc decision whether
the conflicting Supreme Court decision was rendered before or
after our prior decision. Mennen, 147 F.3d at 294-95 n.9. In
Mennen, the appellant argued that IOP 9.1 could only be avoided
when a later Supreme Court decision called for a rejection of a
prior panel’s decision. Id. While we acknowledged that it would
be rare for a court of appeals decision to be inconsistent with prior
Supreme Court precedent, we rejected appellant’s argument. Id.
In so holding, we explicitly disagreed with “the proposition that a
panel opinion which lacks harmony not only with subsequent
Supreme Court authority but also with antecedent Supreme Court
authority has a greater claim to permanence as circuit precedent
than a panel decision undercut by subsequent Supreme Court
authority when announced.” Id. As a result, the fact that we
decided Gricco after Ball and Rutledge were decided by the
Supreme Court is not relevant to our analysis.
In Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., Inc., 46
F.3d 258 (3d Cir. 1995), the panel was confronted with a decision
of another panel (Gasoline Sales v. Aero Oil Co., 39 F.3d 70 (3d

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16 16
Cir. 1994)) that applied a decision of an earlier panel (Glessner v.
Kenny, 952 F.2d 702 (3d Cir. 1991)) that was contrary to two
Supreme Court cases (Reves v. Ernst & Young, 507 U.S. 170
(1993) and Nat’l Org. for Women v. Scheidler, 510 U.S. 249
(1994)). We concluded that notwithstanding IOP 9.1, “the
Gasoline Sales panel’s application of [] Glessner [] is [] not
conclusive here.” Jaguar Cars, 46 F.3d at 266 n.6. We explained
that the reason for our refusal to apply Gasoline Sales was “because
the Supreme Court’s opinions in Reves and Scheidler were not
called to the panel’s attention, and the opinion did not either
explicitly or implicitly decide the impact of those cases on the
issues raised in that appeal.” Id.; see also Tucker v. Phyfer, 819
F.2d 1030, 1035 n.7 (11th Cir. 1987) (observing that a prior panel
decided a case “without any reference to the Supreme Court’s
previous holdings” in two cases, and concluding that by declining
to follow the prior panel’s decision, “we do not view ourselves as
violating the prior panel rule; rather we are simply discharging our
duty to follow clearly controlling Supreme Court precedent”).
We hold that we are not bound by our decision in Gricco
regarding whether Tann’s substantial rights were affected, largely
for the reasons we set forth in Jaguar Cars. First, the parties in
Gricco did not focus on whether the asserted error affected
substantial rights. Indeed, we noted in Gricco that “the parties’
briefs focus primarily on the question whether the district court
committed any sort of error at all.” 277 F.3d at 350. Second,
neither Ball nor Rutledge were mentioned in Gricco’s brief analysis
of the affecting substantial rights issue. Third, Gricco’s holding
plainly conflicts with the Supreme Court’s decisions in Ball and
Rutledge. For instance, the Court in Gricco held that a $700
special assessment for each of the two convictions was insufficient
to support vacating one of the judgments of conviction and
sentence. See id. at 351. The Supreme Court in Rutledge,
conversely, held that a $50 special assessment on each of the two
convictions constituted “cumulative punishment not authorized by
Congress” and therefore vacated one of the convictions and
sentences. 517 U.S. at 303. In addition, in Gricco we noted that
sentences for both convictions did “not increase the length of
[defendants’] incarceration,” 277 F.3d at 351, and did not grant
relief, though in Ball, the Supreme Court considered similar

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circumstances and determined that “the second conviction, even if
it results in no greater sentence, is an impermissible punishment”
and vacated one of the convictions and sentences. 470 U.S. at 864.
Finally, Gricco made no reference to the collateral consequences
analysis that was central to both Ball and Rutledge. We conclude,
accordingly, that we are not bound by our decision in Gricco.
* * * * *
Following Ball, Rutledge, and Miller, we conclude that
Tann has met his burden to show that his substantial rights were
affected by his unauthorized conviction and sentence on both
counts charged under § 922(g).
D.
Finally, we turn to whether the District Court’s error
“seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings,” and whether this Court should exercise its
discretion to correct the error. Olano, 507 U.S. at 732 (quotation
marks and citations omitted).
The Government argues, citing Gricco, that a concurrent
sentence and additional assessment “hardly amount[] to a
miscarriage of justice warranting the exercise of the Court’s
discretion under Rule 52(b).” Gov’t Br. 17. We disagree for the
reasons set forth in section II(c) above.
In Miller, we concluded, on the basis of the Supreme
Court’s decisions in Ball and Rutledge, that an additional,
unauthorized conviction – together with its concurrent sentence,
additional assessment, and the potential for adverse collateral
consequences – seriously affected the fairness of the district court
proceedings. 527 F.3d at 73-74. Following the Supreme Court’s
direction, we exercised our discretion under Rule 52(b) and
concluded that one of the convictions, as well as its concurrent
sentence and assessment, must be vacated. Id. at 74 (citing Ball,
470 U.S. at 864). We note that other courts of appeals have
similarly exercised their discretion in circumstances analogous to

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See, e.g., Ogba, 526 F.3d at 237-38 (concluding that the10
multiplicitous conviction and sentence amounted to double
jeopardy, and that “[f]ailing to remedy a clear violation of a core
constitutional principle would be error so obvious that our failure
to notice it would seriously affect the fairness, integrity, or public
reputation of [the] judicial proceedings and result in a miscarriage
of justice” (quotations and citations omitted) (alteration in
original)); Zalapa, 509 F.3d at 1065 (“By convicting and
sentencing Zalapa on both firearms counts, the district court’s plain
error exposed Zalapa to double jeopardy, which makes his
convictions fundamentally unfair.”); Parker, 508 F.3d at 440-41
(overruling prior precedent and concluding that multiplicitous
convictions, with concurrent sentences and assessments, amounted
to miscarriage of justice).
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those presented in Miller and in the present case.10
We hold that leaving this error uncorrected would seriously
affect the fairness and integrity of these proceedings and, therefore,
conclude that we will exercise our discretion to grant relief under
Rule 52(b).
III.
For the foregoing reasons, we will remand this case to the
District Court with instructions to vacate the sentence on one of
Tann’s convictions under 18 U.S.C. § 922(g) and to merge the two
convictions under § 922(g) into one conviction. In all other
respects, we will affirm the judgment of the District Court.

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