U.S. v. Thomas, Docket No. 09-4335-cr

• Decision Date: 16 December 2010
• Docket Number: Docket No. 09-4335-cr
• Parties: UNITED STATES of America, Appellee, v. Garfield THOMAS, also known as Milo, also known as Aaron Blake, also known as Inmate Thomas Garfield, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

628 F.3d 64

UNITED STATES of America, Appellee,

v.Garfield THOMAS, also known as Milo, also known as Aaron Blake, also known as Inmate Thomas Garfield, Defendant-Appellant.

Docket No. 09-4335-cr.

United States Court of Appeals,Second Circuit.

Argued: Nov. 17, 2010.

Decided: Dec. 16, 2010.

Peter M. Skinner, Assistant United States Attorney (Katherine Polk Failla, on the brief), on behalf of Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

JaneAnne Murray, Murray Law LLC, New York, NY, for Defendant-Appellant.

Before: JACOBS, Chief Judge, KEARSE and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

Defendant-Appellant Garfield Thomas was sentenced principally to fifty-seven months in prison following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Thomas challenges the reasonableness of his sentence, arguing that the District Court procedurally erred by including in Thomas's applicable sentencing range under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") the two-level enhancement of § 2K2.1(b)(4)(A), which applies to certain firearms charges in which the firearm was stolen, regardless of whether the defendant knew that it was stolen. Thomas argues that the lack of a mens rea element renders the enhancement invalid on its face and violative of equal protection when compared to the Guidelines' two-level enhancement for offenses involving stolen explosives only when the defendant "knew or had reason to believe" that the explosives were stolen. U.S.S.G. § 2K1.3(b)(2). Further, Thomas argues that even if the stolen firearm enhancement was properly applied, the District Court failed to recognize its discretionary power to vary from that provision and did not give due consideration to his policy based arguments.

We reaffirm the continuing validity of our holding in United States v. Griffiths, 41 F.3d 844 (2d Cir.1994), cert. denied, 514 U.S. 1056, 115 S.Ct. 1440, 131 L.Ed.2d 319 (1995), that the lack of a scienter requirement in the stolen firearm enhancement is permissible. We also hold that a rational basis exists to support the Guidelines' differential treatment of stolen explosives and stolen firearms such that U.S.S.G. § 2K2.1(b)(4)(A) does not violate equal protection. Finding no indication that the District Court misunderstood its discretionary powers or ignored Thomas's arguments, we affirm the judgment of conviction.

BACKGROUND

On November 5, 2008, a bystander was struck during a shooting outside of a nightclub in the Bronx. An eyewitnessidentified Thomas as the shooter and Thomas was arrested a few days later. Upon his arrest, Thomas possessed a semi-automatic pistol as well as a number of rounds of ammunition. Ballistics evidence later linked that pistol to the shooting. As Thomas had previously been convicted of a felony drug crime—an offense for which he remained on supervised release—he was charged in the United States District Court for the Southern District of New York with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Thomas pled guilty without a plea agreement on June 18, 2009. His presentence report ("PSR") estimated a Guidelines sentencing range of fifty-seven to seventy-one months based on a Criminal History Category of III and an offense level of twenty-three. With respect to the offense level, the PSR identified a base of twenty pursuant to U.S.S.G. § 2K2.1(a), with a four-level enhancement because the firearm was used in connection with another felony (the shooting), § 2K2.1(b)(6), and anticipated a three-level reduction for acceptance of responsibility, § 3E1.1. Additionally, because the firearm had been reported stolen in Virginia, the PSR applied the two-level stolen firearm enhancement of § 2K2.1(b)(4)(A).

Thomas objected, both in writing and during his sentencing proceeding, to the application of the stolen firearm enhancement. Through counsel, Thomas maintained that he did not know that the gun in his possession was stolen; rather, he explained that he obtained the firearm from an individual with whom he was sharing an apartment and had "no idea where the gun came from other than [that] he got it from this individual." Given his ignorance of the gun's status, Thomas urged the court to reject the strict liability nature of the enhancement. Conceding "Second Circuit precedent against" him, Thomas contended that the precedent has been impaired by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and related cases, and should be revisited.

In response, the District Court noted that it did not "follow the logic" of Thomas's argument for, "in a post- Booker world, in which ... the guidelines are advisory only and the Court's discretion is greater, it would seem ... to follow that the pre- Booker law would be even stronger today, not weaker." Since the enhancement "is a sentencing factor, ... not an element of the offense," the court concluded that its authority to apply the enhancement "in a post- Booker world remains just as viable." Accordingly, the court declined Thomas's invitation to invalidate or otherwise depart from U.S.S.G. § 2K2.1(b)(4)(A). Stating that it "intend[ed] to follow the Second Circuit on this," the court adopted the PSR's Guidelines calculation, and ultimately sentenced Thomas principally to fifty-seven months in prison, to run concurrently with an eighteen-month sentence for the related supervised release violations. Thomas now appeals.

DISCUSSION

Though following Booker the Guidelines are only advisory, they nevertheless retain an important role in a district court's sentencing decision. Indeed, "[a] district court should normally begin all sentencing proceedings by calculating, with the assistance of the Presentence Report, the applicable Guidelines range." United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc), cert. denied, --- U.S. ----, 129 S.Ct. 2735, 174 L.Ed.2d 247 (2009). After doing so and considering all other relevant factors, the court should proceed to determine an appropriate sentence, which may or may not be within the Guidelines-recommended range. SeeUnited States v. Bonilla, 618 F.3d 102, 110 (2d Cir.2010).

We review both the procedural and substantive components of a sentence for reasonableness, employing a "deferential abuse-of-discretion standard." Cavera, 550 F.3d at 189. "A district court commits procedural error where," among other things, "it fails to calculate the Guidelines range (unless omission of the calculation is justified), makes a mistake in its Guidelines calculation, ... treats the Guidelines as mandatory," or "fails adequately to explain its chosen sentence." Id. at 190 (internal citation omitted). In reviewing the propriety of a Guidelines calculation, we review de novo questions of law such as Thomas's constitutional challenges to U.S.S.G. § 2K2.1(b)(4)(A). Cf. United States v. Hasan, 586 F.3d 161, 168 (2d Cir.2009) ("When a defendant challenges the district court's interpretation of a Guidelines provision, we review this interpretation of the Guidelines—just as we would review the interpretation of any law— de novo."), cert. denied, --- U.S. ----, 131 S.Ct. 317, 178 L.Ed.2d 253 (2010).

I. Stolen Firearm Sentencing Guideline

Section 2K2.1(b)(4)(A) of the Guidelines increases the offense level by two for the commission of certain firearms offenses in which "any firearm ... was stolen." We have interpreted materially similar language in an earlier version of this Guideline to unambiguously apply regardless of the defendant's state of mind in respect of the firearm's provenance.¹ United States v. Litchfield, 986 F.2d 21, 23 (2d Cir.1993) (holding the rule of lenity inapplicable). Commentary to the present version confirms that the enhancement is intended to "appl[y] regardless of whether the defendant knew or had reason to believe that the firearm was stolen." U.S.S.G. § 2K2.1 cmt. n. 8(B). It is this strict liability aspect that Thomas contends renders § 2K2.1(b)(4)(A) invalid.

Thomas readily acknowledges, as he must, that Griffiths upheld the validity of the stolen firearm enhancement against this same attack. Griffiths first observed that "[t]he government reasonably may determine that stolen firearms often end up in the hands of criminals" and that the government has a "legitimate interest in punishing possession of a stolen firearm and placing the burden upon one who receives a firearm to ensure that the possession is lawful." 41 F.3d at 845-46. Griffiths then concluded that the stolen firearm enhancement "does not violate the due process clause" because "the enhancement does not alter the statutory maximum penalty, negate the presumption of innocence or alter the burden of proof for the underlying offense, or create a separate offense calling for a separate penalty." Id. Griffiths additionally rejected the argument that the presence of a scienter requirement in the statute criminalizing the possession or transportation of a stolen firearm in interstate commerce, 18 U.S.C. § 922(i)-(j) (requiring that the defendant "know[ ] or hav[e] reasonable cause to believe that the firearm ... was stolen"), constrains the stolen firearm Guideline to have the same mens rea component, citing the "distinction ... between strict liability crimes and strict liability enhancements." Id. at 845; see also United States v. Williams, 49 F.3d 92, 93 (2d Cir.1995) (relying on Griffiths to rejectanalogous challenge to the Guidelines enhancement for possession of a firearm with an obliterated serial number and explaining that "[a]lthough 18 U.S.C. § 922(k), which criminalizes the possession of a firearm with an obliterated serial number, contains a scienter requirement, Congress has not required in this statute that the [obliterated serial number] sentencing enhancement contain a scienter requirement" (internal citation omitted)).

Primarily relying...