463 F.3d 693 (7th Cir. 2006), 05-1465, United States v. Thornton

Docket Nº:05-1465.
Citation:463 F.3d 693
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terrance THORNTON, Defendant-Appellant.
Case Date:September 12, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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463 F.3d 693 (7th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Terrance THORNTON, Defendant-Appellant.

No. 05-1465.

United States Court of Appeals, Seventh Circuit.

Sept. 12, 2006

Argued May 5, 2006.

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[Copyrighted Material Omitted]

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Tyler Murray (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Mickelle Olawoye (argued), Naperville, IL, for Defendant-Appellant.

Before KANNE, WOOD, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Defendant Terrance Thornton was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), and possession of a firearm with an obliterated serial number, § 922(k). Thornton was sentenced to 252 months' imprisonment (21 years) under the Armed Career Criminal Act, 18 U.S.C. § 924(e), ("ACCA"). He now presents us with a number of issues for review attacking his convictions and sentence under the ACCA, none of which merit any relief. The convictions and sentence are therefore affirmed.


Late on a November night in 2002, the city of Elgin, Illinois was rocked by gunfire from a drive-by shooting. Initial reports indicated only the location of the shooting and that the shots had been fired from a Sport Utility Vehicle. Several officers responded directly to the scene of the shooting, while others scoured the area hoping to find the suspect vehicle.

Within twenty minutes, Officers Sheehan and Schultz, driving separately, came upon an SUV parked at a gas station. This gas station was within a couple of miles of the shooting. While still in his car, Schultz was able to see the driver of the SUV, later identified as Darius Hyte, get out and go into the station. The officers decided to investigate. As they pulled into the gas station, Sheehan noticed that the SUV was the only car in the lot, and that the only people in the gas station were two customers, later identified as Hyte and Thornton, and one store

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employee. The SUV was parked with its engine running and lights on.

The officers stopped their cars and headed toward the gas station's front door. Before they reached it, Hyte and Thornton came out. Sheehan asked Thornton to step aside and Schultz did the same with Hyte. Sheehan then asked Thornton if he was driving the SUV. Thornton responded by saying that "his girl was driving" it. After getting Thornton's name and birth date, Sheehan used the police radio on his person to run a warrant check on Thornton. It came back positive for an outstanding warrant for felony domestic battery. Thornton was arrested. The whole encounter, from the time Sheehan first approached Thornton until the time dispatch provided the results of the warrant check, lasted three to four minutes.

After placing Thornton in his squad car, Sheehan looked into the passenger window of the SUV. Sitting on the passenger side floorboard he saw a black semiautomatic handgun and a box of ammunition. He opened the door of the SUV to take a closer look, but never touched the gun. Evidence technicians arrived later to collect the gun, which had its serial number obliterated. Two cellular phones were also retrieved from the SUV. One phone was found sitting between the passenger seat and the center console, and the other was in the center console. Further investigation of the phone found closer to the passenger seat revealed several numbers programmed into its address book belonging to people who knew Thornton. One of the numbers in the address book was an attorney who had represented Thornton. The phone also logged an incoming call on the night of the shooting from a girlfriend of Thornton's.

Officers also collected an empty Swisher Sweets cigar box and a pack of nearly empty Newport cigarettes from the SUV. When he was arrested, Thornton had a new, unopened box of Philly blunt cigars. Hyte was also arrested, and he had in his possession a pack of Newport cigarettes.

Forensic evidence later tied the gun in the SUV to the shooting. The shell casings at the scene of the shooting and those found in the SUV were the same nine millimeter Luger type. At trial, an Illinois State Police firearm's expert testified that the shell casings found at the scene of the shooting had been fired from the gun found in the SUV. Forensic evidence also tied Thornton to the gun, though indirectly--his fingerprint was found on the magazine in the handgun.

Prior to trial, the judge denied Thornton's motion to suppress, which argued the evidence against him was obtained as a result of an unconstitutional stop and arrest. At trial, Thornton objected to a portion of the jury instruction defining joint possession. His objection was to the portion of the instruction italicized below:

Possession may be sole or joint. If one person alone has actual or constructive possession of a firearm, possession is sole. If two or more persons share actual constructive possession of a firearm, possession is joint. An individual may possess a firearm even if other individuals may have access to a location where possession is alleged. Also, an individual may possess a firearm even if other individuals share the ability to exercise control over the firearm. Possession may be joint.

Thornton argued that this portion of the instruction defined possession too broadly, an argument he now reasserts before us.

Also at trial, the judge sustained the government's objections to Thornton's attempts to call two police officers to the stand: Officers Hooker and Mendiola. Thornton wanted to call Hooker to impeach Officer Schultz's testimony that there were only two people (Thornton and

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Hyte) in the gas station when the officers arrived on the scene. According to Thornton, Hooker had been told by the gas station attendant that two other customers were present in the store when Thornton and Hyte entered. Thornton also proffered that Mendiola would testify that he was present, along with the other officers, when Hyte was initially encountered outside of the gas station. According to Thornton, Mendiola could establish that while being questioned, Hyte called another person with his cellular phone, and that Hyte told Mendiola the SUV belonged to Hyte's girlfriend. Thornton viewed the evidence of Hyte calling someone as raising the inference a third party--Hyte's girlfriend--might have been present in the SUV and in possession of the gun. The judge excluded both witnesses on hearsay grounds.

After he was convicted, Thornton was sentenced under the ACCA. One of the three necessary predicate violent felonies included a 1990 burglary conviction. The only evidence in the record of this conviction is an entry in Thornton's Presentence Investigation Report ("PSR"). After identifying the conviction, the PSR states:

According to court records, the defendant was originally charged with residential burglary, possession of cannabis and theft. He was convicted on a plea of guilty to the amended charge of burglary, and the other two counts were dismissed (nolle prosequi). The defendant was represented by counsel.

The amended criminal complaint charged that the defendant committed the offense of burglary (a Class 2 felony) in that without authority, he knowingly entered a building of another, [name and address omitted], with the intent to commit a theft.

At his sentencing hearing, Thornton argued that all of his qualifying convictions should have been submitted to the jury. He also took specific aim at the 1990 burglary conviction, arguing that it was "incorrect" to designate this as a qualifying conviction. The entirety of his objection in this regard is as follows:

In addition, one of the cases that [was] mentioned was the 1990 case regarding him being a career criminal in the PSI report was this 1990 case for burglary case. It is a burglary case. It is not a residential burglary case. There is case law out there that discusses this in U.S. v. Hicks that states that a general burglary does not fall within the violent felony provision to be eligible under 924.

The government maintained that all of Thornton's qualifying convictions were properly considered. The judge found the Guideline's sentence--which included the ACCA enhancement--properly calculated and sentenced Thornton accordingly.


Thornton raises the following issues with regard to his convictions, which will be addressed in turn: first, lack of both reasonable suspicion to stop and probable cause to arrest; second, insufficient evidence to support the jury's verdict; third, error in the jury instruction defining possession; and, fourth, abuse of discretion in the district judge's exclusion of certain witness testimony. He also attacks his sentence under the ACCA and the reasonableness of his sentence.

A. Convictions

First, the district judge made no error in denying the motion to suppress. We review the court's legal conclusions de novo and factual determinations for clear error. United States v. Cellitti, 387 F.3d 618, 621 (7th Cir.2004) (citation omitted). Thornton argues the officers did not have reasonable suspicion to stop him when he first came out of the gas station, but this

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argument misstates the judge's ruling and ignores crucial facts upon which the judge relied. What the judge said was that when Officer Sheehan first approached Thornton coming out of the gas station and asked him whether the SUV was his, the encounter was voluntary. Thornton points us to no facts in the record giving us reason to doubt this ruling. See, e.g., Kaupp v. Texas, 538 U.S. 626, 630, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (giving examples of circumstances indicating a seizure as opposed to a voluntary encounter, such as " 'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the...

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