United States v. Thomas

435 F. App'x 117
CourtCourt of Appeals for the Third Circuit
DecidedJune 23, 2011
DocketNo. 10-2170
StatusPublished
Cited by1 cases

This text of 435 F. App'x 117 (United States v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thomas, 435 F. App'x 117 (3d Cir. 2011).

Opinion

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Shalen Thomas appeals his judgment of sentence following a guilty plea. He asks us to revisit whether a prior conviction under Pennsylvania’s misdemeanor resisting arrest statute, 18 Pa. Cons.Stat. Ann. § 5104, qualifies as a “crime of violence” under the United States Sentencing Guidelines (USSG), in light the Supreme Court’s holding in Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Because we find that Johnson does not change our previous holding that resisting arrest in Pennsylvania is a crime of violence, United States v. Stinson, 592 F.3d 460, 466 (3d Cir.2010), and because the sentence imposed was procedurally and substantively reasonable, we will affirm.

I

We write for the parties, who are well acquainted with the case, so we review only briefly the essential facts and procedural history.

In July 2009, Thomas pleaded guilty to possession of a firearm by a convicted felon, a violation of 18 U.S.C. § 922(g)(1). At sentencing, the District Court set his base offense level at 24 because Thomas had committed the unlawful firearm possession offense “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(2). Before pleading guilty in this case, Thomas had been convicted in state court of possession and possession with intent to deliver her[119]*119oin and cocaine, a controlled substance offense. He had also been convicted in state court of resisting arrest, which the District Court found to be a crime of violence. Although Thomas acknowledged the controlled substance offense, he argued that because resisting arrest was not a crime of violence, his base offense level should have been 20 under USSG § 2K2.1(a)(4)(A). The District Court rejected Thomas’s argument and, after further adjustments not relevant on appeal, calculated his final offense level as 23 and his criminal history category as V, resulting in a Guidelines range of 84-105 months imprisonment. Had Thomas prevailed in his objection, his final offense level would have been 19, resulting in a Guidelines range of 57-71 months. After considering Thomas’s motions for departures and variances, which it denied, the District Court sentenced Thomas to 105 months imprisonment and three years of supervised release.

II

Thomas now appeals the District Court’s denial of his objection to the calculation of his base offense level, as well as the procedural and substantive reasonableness of his sentence.

We review sentencing decisions for abuse of discretion, looking first for procedural error and then examining the sentence for substantive reasonableness. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir.2008). We review a district court’s legal interpretation of the Guidelines de novo. United States v. Grier, 475 F.3d 556, 561-68 (3d Cir.2007) (en banc). “If [an] asserted procedural error is purely factual, our review is highly deferential and we will conclude there has been an abuse of discretion only if the district court’s findings are clearly erroneous.” Wise, 515 F.3d at 217. In evaluating a challenge to the substantive reasonableness of a sentence, we must affirm “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc).

A

Pennsylvania’s resisting arrest statute can be violated in the following two ways:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person [1] creates a substantial risk of bodily injury to the public servant or anyone else, or [2] employs means justifying or requiring substantial force to overcome the resistance.

18 Pa.C.S. § 5104.

Under the Guidelines, a base offense level of 24 should be applied when sentencing a defendant for an unlawful firearms possession offense “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(2). “Crime of violence” is defined as

... any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

[120]*120This definition is substantially similar to the definition of “violent felony” under the Armed Career Criminal Act (ACCA), and “authority interpreting one is generally applied to the other.” United States v. Hopkins, 577 F.3d 507, 511 (3d Cir.2009).

In United States v. Stinson, we held that a conviction for resisting arrest under 18 Pa.C.S. § 5104 qualified as a crime of violence. 592 F.3d at 464-66. Stinson held that both means of violating the statute — “[1] creating] a substantial risk of bodily injury to the public servant or anyone else, or [2] employing] means justifying or requiring substantial force to overcome the resistance” — fit within the second clause of the definition, known as the “residual clause,” because the statute did not cover passive resistance and criminalized only “purposeful, violent, and aggressive” acts that presented a serious potential risk of physical injury to another. Id. (quoting Begay v. United States, 553 U.S. 137, 144, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)).

Shortly after Thomas was sentenced, the United States Supreme Court decided Johnson v. United States, which held that a conviction for simple battery in Florida was not a violent felony for purposes of ACCA because the phrase “physical force” in the first clause of ACCA’s definition means “violent force — that is force capable of causing physical pain or injury to another person.” Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010) (emphasis in original). Thomas argues that a conviction for resisting arrest in Pennsylvania no longer qualifies as a crime of violence, because § 5104 also does not require that the defendant have used violent force.

Thomas’s argument fails because our holding in Stinson was not

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thomas v. United States
181 L. Ed. 2d 227 (Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
435 F. App'x 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-ca3-2011.