United States v. Thomas
2011 U.S. App. LEXIS 1988
| 8th Cir. | 2011Background
- Thomas pled guilty to being a felon in possession of a firearm, based on 18 U.S.C. §§ 922(g)(1), 924(a)(2).
- The PSR calculated a guidelines range of 57–71 months, starting with a base level of 24 under § 2K2.1(a)(2) due to two prior felonies labeled crimes of violence.
- Prior convictions included robbery and felony escape; the PSR treated both as qualifying crimes of violence.
- Thomas conceded robbery qualified as a crime of violence but argued escape did not, arguing the Oklahoma escape statute lacks force element language.
- At sentencing, the Government initially agreed escape was not a crime of violence for a different reason and acknowledged the statute is over-inclusive.
- The district court concluded Thomas’s escape conviction qualified as a crime of violence based on the PSR and sentenced him to 70 months; Thomas appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the escape conviction qualifies as a crime of violence | Thomas ( Thomas ) contends escape does not qualify. | The Government contends the statute can cover escape from custody and failure to report; but must be limited to the violent part via a modified categorical approach. | Remand required; the escape conviction could not be shown as a crime of violence based on the record. |
| Procedural validity of using PSR to determine crime of violence | PSR relied on police report; inadmissible under modified categorical approach. | District court may rely on the PSR’s factual allegations if properly documented at sentencing. | Procedural error; remand for resentencing with proper judicial records. |
| Addressing the record on remand | Remand should allow presentation of proper charging documents and judgments. | Remand can be used to develop a proper record under the modified categorical approach. | Remand granted to allow development of a proper record; traditional one-bite opportunity acknowledged. |
Key Cases Cited
- United States v. Pearson, 553 F.3d 1183 (8th Cir. 2009) (over-inclusive statutes and which part falls within crime of violence under modified categorical approach)
- United States v. Vinton, 631 F.3d 476 (8th Cir. 2011) (modified categorical approach requires looking at charging documents and similar judicial records)
- United States v. Williams, 627 F.3d 324 (8th Cir. 2010) (PSR reliance on police reports can be an inadequate basis for sentencing findings)
- United States v. McCall, 439 F.3d 967 (8th Cir. 2006) (en banc; considerations of sentencing records under modified categorical approach)
- United States v. Gammage, 580 F.3d 777 (8th Cir. 2009) (one-bite rule and limits on government presentation of evidence on record)
- United States v. King, 598 F.3d 1043 (8th Cir. 2010) (traditional one-bite approach to government evidence on remand)