United States v. Thigpen

• Decision Date: 15 February 2017
• Docket Number: No. 16-2482,16-2482
• Citation: 848 F.3d 841
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Antonio Karlos THIGPEN, also known as Antionio Karlos Thigpen, also known as Hustler, also known as Tone Cappone, also known as Tone, also known as Tonio, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

848 F.3d 841

UNITED STATES of America, Plaintiff–Appellee
v.
Antonio Karlos THIGPEN, also known as Antionio Karlos Thigpen, also known as Hustler, also known as Tone Cappone, also known as Tone, also known as Tonio, Defendant–Appellant

No. 16-2482

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2017
Filed: February 15, 2017

Counsel who represented the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.

Counsel who represented the appellee was Steven Kelly Young, AUSA, of Cedar Rapids, IA.

Before LOKEN, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Antonio K. Thigpen pled guilty to being a felon and unlawful user in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2). The district court¹ sentenced him to 120 months' imprisonment. He appeals the sentence, challenging the guidelines determination. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Police received a call about a disturbance between seven or eight people, one allegedly with a gun. A witness told officers the one with the gun was a black male wearing a white sweat suit with a black logo. Searching the area, police found Thigpen, who matched the description. Officers directed Thigpen to remain on the porch of the house where he was standing. He entered the house, closed the door, but exited about 20 seconds later. Police detained him. He admitted possessing marijuana. Police found about 5 grams in his pocket.

The owners of the house consented to a search. Police found a Glock pistol in a garbage can near the front door. The pistol had a scratched-off serial number on its frame and had been reported stolen. The owners denied possession. Thigpen later admitted putting the gun in the garbage can.

Thigpen pled guilty. Over his objections, the district court: (1) increased his base offense level pursuant to U.S.S.G. § 2K2.1(a)(2) based on a prior Iowa felony conviction for third-degree burglary; (2) imposed a four-level increase under U.S.S.G. § 2K2.1(b)(4)(B) for a firearm with "an altered or obliterated serial number;" and (3) imposed a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm "in connection with another felony offense." Adjusting downward for acceptance of responsibility, the court calculated a 29 total offense level and a category IV criminal history, making the guidelines range 121 to 151 months, which became 120 months due to a statutory maximum. The court sentenced him to 120 months.

I.

Thigpen disputes that his Iowa third-degree burglary conviction is a "crime of violence" under

848 F.3d 844

U.S.S.G. § 2K2.1(a)(2). This court "review [s] de novo a district court's determination that an offense qualifies as a crime of violence under the Guidelines." United States v. Harrison , 809 F.3d 420, 425 (8th Cir. 2015), citing United States v. Tessmer , 659 F.3d 716, 717 (8th Cir. 2011).

At sentencing, Thigpen argued his third-degree burglary conviction was not "a crime of violence" because Iowa's burglary statute is broader than generic burglary. After sentencing, the United States Supreme Court held that a conviction under Iowa's burglary statute is not a violent felony for purposes of the Armed Career Criminal Act. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). The government concedes that Thigpen's Iowa third-degree burglary conviction is not "a crime of violence" for purposes of enhancement under section 2K2.1(a)(2).

Without this enhancement, Thigpen's total offense level of 29 becomes 25. Thigpen requests remand, invoking a new guidelines range of 84-105 months. The government asserts harmless error. "When the guidelines are incorrectly applied, [this court] remand[s] for resentencing unless the error was harmless, such as when the district court would have imposed the same sentence absent the error." United States v. Idriss , 436 F.3d 946, 951 (8th Cir. 2006).

At sentencing, the district court acknowledged the pending Mathis case, but declined to "speculat[e] as to what the United States Supreme Court will do," instead "apply[ing] the law in the Eighth Circuit which currently exists." It said:

The Court would note that in terms of the burglary being a predicate at Paragraph 17, I believe there would be some overlap if the Court had erred on that and we were at 27/IV. Then I think the effective guideline range would overlap the 29/IV.

Considering the section 3553(a) factors, the court said:

The Court hereby imposes a nonguideline sentence. Although I considered the guidelines and did the computation of the advisory guideline sentencing range, I did not depend solely on that computation in reaching my sentencing decision in this case. Therefore, any error in the computation of the advisory guideline computation or any retroactive changes to the advisory guidelines would not affect or change in any way my determination that the sentence that is sufficient but not greater than necessary to achieve the goals of sentencing is the sentence of 120 months.

In arriving at the sentence, I considered each and every factor at 18 United States Code Section 3553(a). And in arriving at my nonguideline sentence of 120 months, I particularly relied on the nature and circumstances of the offense and the history and characteristics of the defendant.

Although the district court mistakenly believed Thigpen's total offense level would be 27 rather than 25 if it decided the Iowa conviction was not "a crime of violence," the court "did not depend solely on that computation in reaching [the] sentencing decision," noting that any error "would not affect or change in any way my determination that the sentence that is sufficient but not greater than necessary to achieve the goals of sentencing is the sentence of 120 months." Because the district court stated it would impose the same sentence regardless of the guidelines calculation, the section 2K2.1(a)(2) enhancement was harmless error. See United States v. Pappas , 715 F.3d 225, 230 (8th Cir. 2013) (holding harmless any error in the guidelines calculation where the district

848 F.3d 845

court explicitly said it would have imposed the...