U.S. v. Thompson

• Citation: 515 F.3d 556
• Decision Date: 11 February 2008
• Docket Number: No. 06-6233.,06-6233.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas M. THOMPSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

515 F.3d 556

UNITED STATES of America, Plaintiff-Appellee, v. Thomas M. THOMPSON, Defendant-Appellant.

No. 06-6233.

United States Court of Appeals, Sixth Circuit.

Submitted: October 26, 2007.

Decided and Filed: February 11, 2008.

ON BRIEF: Thomas J. Drake, Jr., Craig & Drake, Nashville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: MERRITT, ROGERS, and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court, in which ROGERS, J., joined. MERRITT, J. (pp. 569-75), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

A grand jury indicted Thomas M. Thompson and six codefendants of various federal offenses related to a drug transaction that turned into an armed robbery. Thompson pleaded guilty to three criminal counts. He received 360 months of imprisonment for conspiracy to distribute five or more kilograms of cocaine and for being a felon in possession of a firearm. He also received a mandatory consecutive sentence of ten years' imprisonment for the discharge of a firearm in connection with a drug transaction.

On appeal, Thompson raises several claims of error. He contends that the district court erred when it enhanced his sentencing range under the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") for assault on an official victim and for holding a leadership role in the crime. He also argues that the district court engaged in impermissible double-counting when it used the same criminal activity to both enhance his Guidelines range and sentence him to the ten-year mandatory sentence. Finally, he argues that he should have received only a five, year sentence for carrying and possessing a firearm during a drug transaction, rather than the ten-year sentence for discharging a firearm.

For the reasons set forth below, we, affirm in part, reverse in part, and remand to the district court for the limited purpose of resentencing Thompson under 18 U.S.C. § 924(c)(1)(A).

I

On April 6, 2005, the Metro Nashville Police Department arranged with a confidential informant (the "CI") to purchase cocaine. The CI proceeded to purchase small amounts of cocaine from several of Thompson's co-defendants. Several days later, the CI told police that he learned that Thompson wanted to purchase a large volume of cocaine. The CI met with an undercover officer who was to pose as a dealer from Chicago in order, to arrange a drug transaction with Thompson.

After several rounds of negotiation, the CI and the undercover officer met Thompson in a hotel room to finalize the sale. Police had the room under video surveillance. Thompson was shown a bag containing twenty kilograms of cocaine wrapped in smaller packages. After inspecting the cocaine, Thompson left the room, ostensibly to get more money to complete the sale. He returned with the money and was accompanied by co-defendant Kenneth Jones.

Thompson and Jones turned the drug sale into an armed robbery. Both Jones and Thompson drew semiautomatic pistols on the officer and the CI. They ordered the two men to drop to the floor and not to move. Jones grabbed the bag of cocaine and money and the two fled from the hotel room.

The officers observing the drug transaction from the next room pursued Jones and Thompson down the hotel stairs, yelling, "Metro Police!" They wore jackets printed with "Police" on the sleeves and body. When one officer reached the bottom floor he noticed several kilograms of cocaine and money lying on the floor. As the officer turned the corner, Jones fired a shot in his direction. When the officer peered around the corner again, Jones fired another shot. An officer in the lobby observed Jones and Thompson running towards him. Jones fired a third shot at the officers, missing one by just a few inches. Jones and Thompson tried to hide in a vending machine area, but the police ordered them to come out and surrender, which they eventually did. The officers recovered a Ruger semi-automatic pistol and a Glock semi-automatic pistol from the top of a vending machine.

A grand jury indicted Thompson, Jones, and five other co-defendants on drug and weapons charges. Thompson was named in three of the five counts: Count One charged Thompson and five others with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846; Count Two charged Thompson with possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1); and Count Four charged Thompson with using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. Thompson eventually pleaded guilty to all three counts.

The probation office prepared a presentence report ("PSR").¹ Beginning with a base-offense level of thirty four under the Guidelines, the office recommended a six-level enhancement under U.S.S.G. § 3A1.2(c)(1) for assaulting a law-enforcement officer during the course of an offense or flight therefrom, a four-level enhancement under U.S.S.G. § 3B1.1(a) for a leadership role in the conspiracy, and a two-level reduction under U.S.S.G § 3E1.1(a) for acceptance of responsibility. With an adjusted base-offense level of 42 and a criminal-history category of V, the office recommended a sentencing range under the Guidelines of 360 months' to life imprisonment for Counts 1 and 2. On Count 4, the office recommended that Thompson receive a mandatory minimum sentence of ten years' imprisonment. Thompson objected to the PSR.

The district court held a sentencing hearing. After receiving testimony from several of the officers at the scene and after hearing the parties' arguments, the district court sentenced Thompson to 360 months of imprisonment each on Counts One and Two, to be served concurrently, and 120 months on Count Four, to be served consecutively.

Thompson timely appealed his sentence.

II

A. Sentencing

A district court and an appellate court have different roles in federal sentencing. The district court must consider the relevant sentencing factors set forth at 18 U.S.C. § 3553. Pursuant to the so-called parsimony provision of 18 U.S.C. 3553(a), a district court must "impose a sentence sufficient, but not greater necessary, to comply with the purposes" of, 3553(a)(2). Section 3553(a)(2) provides that the district court must consider "the need for the sentence imposed":

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]

While the district court need not explicitly reference each of the sentencing factors of § 3553(a), "there must be sufficient evidence in the record to affirmatively demonstrate the court's consideration of [these factors]." United States v. Jones, 445 F.3d 865, 869 (6th Cir.) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 127 S.Ct. 251, 166 L.Ed.2d 197 (2006).

The appellate court, in contrast, reviews the defendant's sentence for "reasonableness" under an abuse-of-discretion standard. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007).

B. The Advisory Guidelines

1. In General

One of the sentencing factors that the district court must consider is the applicable Guidelines range. United States v. Gale, 468 F.3d 929, 934 (6th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 3065, 168 L.Ed.2d 758 (2007). Specifically, 18 U.S.C. § 3553(a)(4) requires than that the district court consider "the kinds of sentence and the sentencing range established for—(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—(i) issued by the Sentencing Commission." The Supreme Court explained in Gall that the Guidelines are the "starting point and the initial benchmark" for federal sentencing. 128 S.Ct. at 596.

When considering the Guidelines, the district court must calculate the correct sentencing range. Id.; Gale, 468 F.3d at 934. In practice, this means that the court must begin at the proper base-offense level, apply any applicable enhancements or reductions to arrive at the adjusted-offense level, and use the resulting offense level with the appropriate criminal-history category to arrive at a sentencing range. This is what the district court did in the recent Supreme Court case of Kimbrough United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). The district court began with a base-offense level of 32 and a criminal history of II for Kimbrough. Id. at 565. The district court then found that Kimbrough had testified falsely at his codefendant's trial and added 2 levels, resulting in an adjusted offense level of 34. Id. The Supreme Court favorably noted that the district court "began by properly calculating and considering the advisory Guidelines range." Id. at 575. Using the Guidelines range (as adjusted with any judge-found facts) as the applicable Guidelines range for purposes of § 3553(a)(4) has been the consistent practice of this court. See, e.g., United States v. Robinson, 503 F.3d 522, 529 (6th Cir.2007) (applying a presumption of reasonableness to a within-Guidelines sentence where the Guidelines calculation was enhanced based on judge-found facts and the resulting sentence would have been outside a non-enhanced Guidelines range); United States v. Cook, 453 F.3d 775, 777 (6th Cir.2006) (explaining that "Booker . . . has no bearing on advisory guideline calculations"); United States v. Stone, 432 F.3d 651, 654-55 (6th Cir.2005) (holding that the district court's fact-finding with respect to an obstruction of justice...