United States v. Gilbert

¶6PER CURIAM:

¶7In this appeal defendant-appellant Alvin Olanda Gilbert contends that the district court erred in denying his motion for reduction of sentence pursuant to Fed.R.Crim.P. 35.1 We affirm the district court’s decision,

¶8A jury convicted Gilbert on two counts of theft from an interstate freight shipment and on two counts of possession of the goods stolen therefrom, all in violation of 18 U.S.C. § 659.2 Count I of the indictment charged the theft of two coils of galvanized steel that were in shipment from Ohio to Tyler, Texas, and Count II charged possession of the two stolen coils. Count III *348charged the theft of four coils of galvanized steel that were in shipment from Michigan to Houston, Texas, and Count IV charged possession of the four stolen coils. The trial court sentenced Gilbert to concurrent seven-year sentences on Counts I and II and to concurrent seven-year sentences on Counts III and IV, the two sets of concurrent sentences to run consecutively. We affirmed in United States v. Gilbert, 5 Cir., 1976, 537 F.2d 118. The Supreme Court granted certiorari and remanded the case to us “for reconsideration in light of the position presently asserted by the Government,” which was based on two Supreme Court decisions, Solimine v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976), and United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976). United States v. Gilbert, 430 U.S. 902, 97 S.Ct. 1169, 51 L.Ed.2d 578 (1977). Solimine held that convictions and concurrent sentences for theft as well as receiving the stolen property are improper, and Gaddis held that convictions of robbery and receiving or possessing the proceeds of that robbery are improper. On remand we vacated Gilbert’s convictions on Counts I and III, the theft counts, but again affirmed the convictions on Counts II and IV, the possession counts. United States v. Gilbert, 5 Cir., 1977, 553 F.2d 990. The district court, in compliance with our instructions, set aside the theft convictions.

¶9Gilbert then moved the district court for a reduction of sentence, asserting that the consecutive sentences on Counts II and IV constitute multiple punishment for the same offense. The coils may have' been stolen from separate interstate shipments, he contends, but, because they were possessed simultaneously on one truck and remained together while in his possession, there was only one possession, which merits the imposition of only one sentence. Having considered and rejected this contention once before on Gilbert’s direct appeal of his convictions, United States v. Gilbert, supra, 537 F.2d at 119, we find that the issue is settled,3 and that the district court’s denial of the motion to reduce sentence was in all respects proper.

¶10AFFIRMED.