Can a defendant serve two concurrent sentences for the possession and transfer of counterfeit notes?

We employed similar reasoning in United States v. Sanford, 673 F.2d 1070 (9th Cir.1982), where we ordered resentencing for a defendant who had been sentenced to consecutive terms of imprisonment for the transfer of counterfeit notes and for possession of the same notes. In Sanford, the evidence showed that the government informant obtained counterfeit bills from the defendant, but there was no evidence showing that the defendant possessed the notes "at any time prior to the moment of transfer." Id. at 1071. Therefore, we held, "[o]n the facts of this case, the two offenses charged were in reality only one offense for which consecutive sentences are improper." Id. However, in our case, Palacios had 46 counterfeit bills hidden on his person after he had already attempted to pass 44 other counterfeit bills. Thus, the two counts charged separate offenses. They were not the same offense because Palacios separately retained the 46 counterfeit bills in his pocket. The 46 counterfeit bills were not part of the transaction in which the quantity of 44 counterfeit bills was passed.

In United States v. Palafox, 764 F.2d 558 (9th Cir.1985) (en banc), we held that a defendant who was properly convicted on one count of distributing a sample of heroin in violation of 21 U.S.C. Sec. 841(a)(1) and one count of possessing the remainder in violation of the same section could not be required to serve two concurrent sentences. In Palafox, an undercover agent negotiated to buy heroin from the defendant and asked for a sample to inspect. The defendant handed the agent a package of heroin, which the agent promptly returned after removing a small quantity. The defendant was immediately arrested and convicted both of possessing heroin with intent to distribute and of actually distributing heroin. In holding that there could only be one punishment, we reasoned that "each offense [was] committed at virtually the same time, in the same place, and with the same participants." Palafox, 764 F.2d at 562. In the present case, Palacios retained counterfeit bills on his person while passing a separate quantity of counterfeit bills. Although technically, Palacios possessed the 46 counterfeit bills, his actions were not the same as those of the defendant in Palafox.