United States of America v. Andre Ganeous

UNPUBLISHED
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Andre Ganeous was convicted by a federal jury of
maiming, in violation of 18 U.S.C. § 114 (2006), and assault
with a deadly weapon, in violation of 18 U.S.C. § 113(a)(3)
(2006). The district court sentenced Ganeous to sixty-three
months of imprisonment for each count, to run concurrently, and
Ganeous now appeals. Finding no error, we affirm.
Ganeous argues that his convictions violated the
prohibition against double jeopardy because the indictment was
multiplicitous, as assault with a deadly weapon is a lesser
included offense of maiming. 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. See United States v. Olano, 507 U.S.
725, 732 (1993). 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

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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). When an indictment has charged multiple
statutory offenses 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 a lesser
included offense, that offense must require no proof beyond that
necessary for a conviction on the greater offense. See Illinois
v. Vitale, 447 U.S. 410, 417 (1980). We have thoroughly
reviewed the record and conclude that assault with a deadly
weapon is not a lesser included offense of maiming as each

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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. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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