United States v. Thorne
Decision Date | 20 July 2018 |
Docket Number | No. 17-1358,17-1358 |
Citation | 896 F.3d 861 |
Parties | UNITED STATES of America, Plaintiff-Appellee v. Billy D. THORNE, Defendant-Appellant |
Court | U.S. Court of Appeals — Eighth Circuit |
Martin Joseph McLaughlin, Daniel C. Tvedt, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Appellee.
Heather Quick, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Defendant-Appellant.
Billy D. Thorne, Pekin, IL, Pro Se.
Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
This case returns to us after a resentencing on remand. Billy D. Thorne was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On remand, the district court1 sentenced him to the statutory maximum of 120 months’ imprisonment, applying an upward variance of 83 months from the high end of the Guidelines range. Thorne now challenges that sentence as substantively unreasonable. We affirm.
In July 2012, Thorne obtained a gun in Mason City, Iowa, and threatened to kill his son and his son’s girlfriend. Thorne was prosecuted by Iowa state authorities and later convicted of first-degree harassment, in violation of Iowa Code § 708.7(2). In December 2013, Thorne was indicted in the Northern District of Iowa for being a felon in possession of a firearm. A jury found him guilty in April 2014. At sentencing, the district court determined that Thorne was an armed career criminal (ACC) and sentenced him to 262 months’ imprisonment. See 18 U.S.C. § 924(e)(1). The court used Thorne’s prior burglary convictions from Florida as predicate offenses for its ACC finding. Thorne appealed. Following the government’s concession that the Florida second degree burglary convictions that formed the basis of Thorne’s ACC status did not qualify as violent felonies, we remanded for resentencing. United States v. Thorne , 837 F.3d 888, 889 (8th Cir. 2016) (per curiam).
At resentencing, the presentence investigation report (PSR) set Thorne’s total offense level at 18. This included a four-level enhancement for using the firearm in connection with another felony. See U.S.S.G. § 2K2.1(b)(6)(B).2 The PSR also listed 18 criminal convictions. Six of those convictions occurred on March 5, 1997, and were based on a string of burglaries Thorne committed in Florida in August and September 1996. Thorne was imprisoned for those offenses until 2012. This enabled them to be assigned criminal history points. See U.S.S.G. § 4A1.2(e). However, despite their numerosity, because each conviction had the same date of arrest and date of sentencing, they only caused Thorne to be assessed three criminal history points. See U.S.S.G. § 4A1.2(a)(2). His resulting criminal history category was II. Combined with his total offense level of 18, Thorne’s Guidelines range was 30 to 37 months’ imprisonment. He faced a statutory maximum of ten years’ imprisonment. See 18 U.S.C. §§ 922(g)(1) & 924(a)(2).
The government requested an upward variance to 120 months’ imprisonment. It argued that the Guidelines range inadequately accounted for Thorne’s criminal history. It also argued that the sentence needed to address the seriousness of the offense, to afford adequate deterrence to criminal conduct, and to protect the public.
Thorne argued that a Guidelines sentence was appropriate. He claimed that the burglaries were over 20 years old and that several of his other convictions were even older. Thorne noted that all the Florida burglaries occurred in a short period of time and that he had served a lengthy sentence for them. He also argued that health issues; problems with drugs; and his age (he was 60 years old on the date of resentencing) warranted the court’s consideration. Additionally, he asked the court to credit him for a drug program he had participated in since his initial sentencing.
The court stated that it had considered all of the sentencing factors under 18 U.S.C. § 3553(a) and concluded that Transcript of Sentencing Hearing at 21–22, United States v. Thorne , No. 3:13-cr-03052-LRR (N.D. Iowa Feb. 2, 2017), ECF No. 129. The court held that any mitigating factors, such as his health, age, and background, were outweighed by aggravating factors. The court then sentenced Thorne to 120 months’ imprisonment.
United States v. Feemster , 572 F.3d 455, 461–62 (8th Cir. 2009) (en banc) ( ).
Thorne argues that his mental and physical health struggles should have received greater weight. Thorne highlights diagnoses in his youth for depressive disorder
and antisocial personality disorder. He also asserts that a suicide attempt and the death of his father while he was still a teenager demonstrate that his mental health should have been weighted substantially more than it was. He describes his drug use as developing in tandem with his mental health problems, and he states that he has used illegal drugs, including crack cocaine and methamphetamine, for most of his life. In addition to mental health issues, Thorne also notes he has developed diabetes and high blood pressure in recent years. Thorne argues that these facts, along with his participation in a 40-hour drug education program while in prison and monthly counseling sessions, militate against an above-Guidelines sentence.
Thorne contends that the court erred by considering factors to be aggravating that were already taken into account by the Guidelines sentence. He cites United States v. Martinez , 821 F.3d 984 (8th Cir. 2016), and United States v. McMannus , 436 F.3d 871 (8th Cir. 2006), for the proposition that large variances based on factors already taken into account by the Guidelines are disfavored. Upon examination, we conclude that neither of these cases requires reversal.
In Martinez , the district court relied on a Nebraska escape conviction in determining the defendant was a career offender and sentenced him to 262 months. 821 F.3d at 986–87. His Guidelines range without that determination would have been 121 to 151 months. Id. at 989. In light of the government’s concession that under Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the defendant’s Nebraska escape conviction was not a crime of violence under the residual clause of the version of U.S.S.G. § 4B1.2 in effect at the time, we determined that the career-offender finding was not a proper basis for increasing the sentence. 821 F.3d at 988–989. However, likely anticipating the possibility of such a ruling, the district court had described the sentence as, alternatively, an upward variance justified by Martinez’s history of violent behavior. Id. at 989. The court noted that the defendant had a prior conviction for unlawful discharge of a firearm (a conviction for which Martinez had already been assessed three criminal history points), his conviction for escape, and evidence that he was gang-affiliated. Id.
We held that the alternative sentence was substantively unreasonable and reversed and remanded for resentencing. Id. The court’s alternative ruling had the effect of treating a defendant who received criminal history points for offenses that were not crimes of violence as "a career offender even if he was not ‘technically’ a career offender." Id . Notably, we also considered whether the conduct that the district court identified supported its conclusion and determined that it did not. Id. at 989–90.
We stated that"[w]hile a district court may consider factors already taken into...
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