U.S. v. Thompson

• Decision Date: 06 September 2005
• Docket Number: No. 04-4678.,04-4678.
• Citation: 421 F.3d 278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony Lee THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

421 F.3d 278

UNITED STATES of America, Plaintiff-Appellee, v. Tony Lee THOMPSON, Defendant-Appellant.

No. 04-4678.

United States Court of Appeals, Fourth Circuit.

Argued May 27, 2005.

Decided September 6, 2005.

ARGUED:

Thomas Norman Cochran, Assistant Federal Public Defender, Office of the Federal Public Defender, Greensboro, North Carolina, for Appellant. Lawrence Patrick Auld, Office of the United States Attorney, Greensboro, North Carolina, for Appellee.

ON BRIEF:

Anna Mills Wagoner, United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and WIDENER and WILKINSON, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge WIDENER joined. Chief Judge WILKINS wrote a dissenting opinion.

OPINION

WILKINSON, Circuit Judge.

Tony Lee Thompson was indicted as a felon in possession of firearms under 18 U.S.C. §§ 922(g)(1), 924(e) (2000 & Supp. II). He pleaded guilty. When a defendant has at least three prior convictions for "violent felon[ies]" that were "committed on occasions different from one another," § 924(e)(1), the Armed Career Criminal Act ("ACCA"), imposes a minimum sentence of fifteen years. The district court found these statutory conditions satisfied and sentenced Thompson to that minimum sentence.

On appeal, Thompson disputes the applicability of ACCA to his case. He claims that the statutory predicates — that his prior convictions were violent felonies committed on separate occasions — were facts improperly found by the judge in violation of his Sixth Amendment rights. Because we conclude that the statutory predicates have been demonstrated as a matter of law, there remain no disputed questions of fact about Thompson's prior convictions. We therefore affirm.

I.

Tony Lee Thompson emerged from a residence — not his own — on November 16, 2003, in High Point, North Carolina. He was carrying stolen items. The police department, having been alerted by a call complaining of a suspicious person, dispatched an officer who apprehended Thompson. The officer found him with a Jennings Bryco 9mm pistol and a Colt .38 caliber revolver. Since both firearms had moved in interstate commerce, Thompson was indicted as a felon-in-possession under § 922(g)(1).

Thompson's criminal history supplied the predicates for an enhanced sentence under § 924(e).¹ Thompson does not dispute that he has been convicted of felonies. The Presentence Investigation Report ("PSR") — to which he raised no objection — details the extent of his criminal record. From the age of 16, Thompson (now 25) has been convicted of a string of crimes ranging from misdemeanor shoplifting and drug possession to a number of felonies.

Particularly relevant among the more than twenty convictions described in the PSR are several for "felony breaking and entering" under North Carolina law. The PSR records that Thompson pled guilty to felony breaking and entering of a residence in Trinity, North Carolina, on July 19, 2001; of another residence in Trinity on July 23, 2001; of a residence in Asheboro, North Carolina, on July 25, 2001; of a residence in Lexington, North Carolina, on October 1, 2001; of another residence in Lexington on June 18, 2002; and of yet two further residences in Lexington on November 7, 2002.

On the basis of these prior convictions and upon accepting the plea agreement Thompson reached with the government, the district court found the enhancement of § 924(e) — a mandatory minimum sentence of 15 years — to be applicable. The court thus sentenced Thompson to fifteen years imprisonment, five years of supervised release, and a $100 special assessment.

Thompson now appeals, arguing that his sentence was unconstitutionally imposed as a matter of law. We review legal determinations of the district court de novo. United States v. Blake, 81 F.3d 498, 503 (4th Cir.1996).

II.

Thompson believes that the Supreme Court's recent Sixth Amendment rulings prohibit sentencing him under ACCA unless a jury finds (or he admits) the facts required by the statute.² Two such facts — that three prior convictions were "violent felonies" and that they were "committed on occasions different from one another" — are predicates for ACCA enhancement. Thompson argues that since these facts were neither admitted by him nor found by a jury, they cannot justify the enhanced sentence.

Evaluating Thompson's claims requires understanding the limitations the Supreme Court has placed on the use of judicial fact-finding in the sentencing context. In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court held that a sentencing regime violated the Sixth Amendment when judges found "factors" that increased a sentence beyond the maximum allowed by the jury findings alone. But by refusing to overturn its holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court explicitly excluded from this general rule "`the fact of a prior conviction.'" Blakely, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). In United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court extended Blakely to the U.S. Sentencing Guidelines. But the Court repeated that only facts "other than a prior conviction" were subject to the jury requirements of the Sixth Amendment. Id. at 756.

Most recently, in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Court addressed what was meant by the "fact of a prior conviction." In Shepard, the Court considered a defendant situated much like Thompson. Shepard pleaded guilty to being a felon in possession under § 922(g)(1), and the government sought to use ACCA to enhance his sentence. But the text of the Massachusetts statute under which Shepard previously had been convicted did not clearly meet the requirement of ACCA that the conviction be a "violent felony." To demonstrate compliance with ACCA, the government offered documents like police reports to show that even if some convictions under the state statute might not be "violent felonies," Shepard's own convictions were. Id. at 1257-58.

The Supreme Court refused the offer. It prohibited judges from resolving a "disputed fact . . . about a prior conviction," id. at 1262, if doing so required data — like that found in police reports — that was not inherent in that prior conviction. At the same time, however, Shepard explicitly affirmed that the prior conviction exception remained good law. Id. at 1262. To this end, the Court authorized judges to rely on a variety of conclusive court documents when determining the nature of a prior conviction. Approved sources include, for instance, the prior court's jury instructions or the "charging documents filed in the court of conviction." Id. at 1259. When there was no jury in the prior case, judges may use not only charging documents but "a bench-trial judge's formal rulings of law and findings of fact." Id. For prior guilty pleas, "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [ ] some comparable judicial record of this information," are all also available for use. Id. at 1263.³

The common denominator of the approved sources is their prior validation by process comporting with the Sixth Amendment. Excluded sources, such as transcripts of testimony or police reports, are not necessarily inherent in the conviction. "[S]ubsequent evidentiary enquiries into the factual basis for the earlier conviction" are off-limits, id. at 1259, but "conclusive records" of the earlier conviction, id. at 1260, are not.

In short, the "fact of a prior conviction" remains a valid enhancement even when not found by the jury. Of course, sentencing judges may not smuggle in contraband facts — those that are reserved for juries — under the mantle of the "fact of a prior conviction." But neither may we sever the prior conviction from its essential components. For instance, an artificially narrow reading of the "fact of a prior conviction" exception might extend to only a grudging acknowledgment that a defendant once had been convicted. Such a reading would answer the question "convicted of what?" by asserting that such a question involved facts "about" the conviction which were reserved to a jury.

Shepard rejected this narrow approach. In describing the materials that could be used by judges to determine the nature of a prior conviction, it reinforced the notion that some facts are so inherent in a conviction that they need not be found by a jury. If the Court had wished to endorse the narrower view — that only the bare existence of a prior conviction was exempt from jury determination — it could have saved itself great trouble by simply stating that such questions about a conviction were reserved for a jury, regardless of whether statutes, charging documents, or prior jury instructions revealed the nature of the conviction.

A conviction cannot, therefore, be reduced to nothing more than that the defendant was at some prior time convicted of some crime. This bare fact is certainly at the nucleus of the conviction. But that nucleus also contains other operative facts, such as the statute which was violated and the date of the conviction. The Supreme Court has declined to attempt extraction of the mere fact of a prior conviction, stripped of all content. We cannot be willfully blind to that content — date, statutory violation, and the like — where it is properly established by one of the sources approved in Shepard. It is as much a part of the conviction as the fact that twelve jurors agreed about the defendant's guilt.

We have already had an opportunity to respect the line Shepard drew between data...