United States v. Thomas

13 F. App'x 233
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 3, 2001
DocketNo. 00-3153
StatusPublished
Cited by7 cases

This text of 13 F. App'x 233 (United States v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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, 13 F. App'x 233 (6th Cir. 2001).

Opinion

OPINION

BORMAN, District Judge.

Defendant Kevin Thomas appeals the sentence imposed following his guilty plea to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). Defendant was sentenced to a term of 15 years (180 months) imprisonment. At issue is whether the district court properly applied the sentence enhancement found in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

The specific issues presented in this appeal are: 1) whether Defendant waived or forfeited his objections to the imposition of the Armed Career Criminal Act (“ACCA”) sentence enhancement, 18 U.S.C. § 924(e), by not continuing his objection raised in a sentencing memorandum, at the sentencing hearing; 2) whether the Notice of pri- or convictions filed by the Government, pursuant to the ACCA, and the Presentence Investigation Report (“PSR”) discussion of those prior convictions, were sufficient evidence for the district court to rely on to find that Defendant met the requirements for sentence enhancement under the ACCA; and, 3) whether, upon review, Defendant’s prior convictions are sufficient to meet the requirements for enhancement under the ACCA. Because our review of the record establishes that Defendant has three prior qualifying convictions for ACCA sentence enhancement, we will AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual Background

In October of 1996, Defendant purchased a .12 gauge shotgun from Vance’s Shooters Supplies, Inc., in Columbus, Ohio. Defendant used false identification in the form of an Ohio driver’s license, issued in the name of “Robert Long,” to purchase the weapon. Defendant further failed to disclose on the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) Form 4473 that he had previously been convicted of criminal offenses in New York.

In December of 1996, a homicide occurred at the residence where Defendant had stored his firearm, and the victim died of .12 gauge shotgun wounds.1 During the investigation of that crime, Columbus police officers executed a search warrant, and found a box that had held the shotgun. Officers traced the shotgun back to “Robert Long,” and then discovered that Defendant Kevin Thomas had falsified his identity to purchase the shotgun. Officers further discovered that Defendant had also falsified the ATF Form by answering “no” [235]*235to the question of whether he had any prior convictions which could have resulted in a term of more than one year in prison.

Accordingly, an arrest warrant was issued for Defendant. He was arrested in New York and transported to Ohio in May of 1999.

B. Procedural Background

A federal grand jury in the Southern District of Ohio indicted Defendant on July 8, 1999, in a two count indictment: one count of purchasing a firearm using false identification, under 18 U.S.C. §§ 922(a)(6) & 924(a)(2), and one count of possession of a firearm by a convicted felon, under 18 U.S.C. §§ 922(g)(1) & 924(a)(2).

On August 24, 1999, the United States filed a Notice of Armed Career Criminal Sentencing Enhancement, pursuant to 18 U.S.C. § 924(e), listing four prior convictions.

On September 24, 1999, Defendant pleaded guilty to count two of the instant indictment, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). While the maximum statutory penalty for this offense under § 924(a)(2) is ordinarily ten (10) years, because the United States had filed a Notice of Enhancement under the Armed Career Criminal Act (18 U.S.C. § 924(e)), a mandatory minimum fifteen (15) year sentence would apply, upon proof of three previous convictions for a violent felony or a serious drug offense.

The Government’s Notice of Armed Career Criminal Sentencing Enhancement Pursuant to 18 U.S.C. § 924(e) listed the four prior convictions as follows.

Date of Conviction Case No. Crime and Date of Offense

1. February 28, 1986 Attempted robbery, second degree (Supreme Court of 938-85 the State of New York, Queens County) January 17, 1985

2. February 28, 1986 Attempted robbery, second degree (Supreme Court of 3487-85 the State of New York, Queens County) July 15,1985

3. March 20,1986 Att. crim. poss. of a controlled substance, third degree 288-86 (Supreme Court of the State of New York, Queens County) January 12,1986

4. March 14,1991 Att. crim. poss. of a controlled substance, fifth degree N12506-95 (Supreme Court of the State of New York, Queens County) July 27,1990

The PSR listed these four prior convictions, and included a brief description of each offense seriatim (e.g., Class B felony, etc.). As to the third listed conviction— March 20, 1986 — which is critical in this court’s analysis of Defendant’s claims,2 the PSR stated:

This conviction was Count 1 of the Indictment, charging the defendant with Criminal Possession of a Controlled Substance in the third degree which carries a maximum term of imprisonment of 15 years. The count charges that on or about January 12,1986, the defendant knowingly and unlawfully possessed a [236]*236narcotic drug which was cocaine with intent to sell the same....

(PSR, Joint App. Vol. 2, at 61 (emphasis added)).

The first two convictions for attempted robbery were consolidated for sentencing on February 28, 1996.3 Defendant was sentenced on the third conviction (attempted criminal possession of a controlled substance, third degree) on March 20, 1986; that sentence was imposed to run concurrently with the prior sentences for the two robbery convictions.4

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Bluebook (online)
13 F. App'x 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-ca6-2001.