United States v. Thompson
17-2011
| 10th Cir. | Jan 9, 2018Background
- Thompson pled guilty in 2014 to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced under the Armed Career Criminal Act (ACCA), § 924(e), which requires a 15‑year minimum when the defendant has three prior qualifying convictions.
- His three prior convictions: two counts of attempted first‑degree murder (with separate firearm enhancements) and one attempted aggravated battery on a household member with a deadly weapon.
- After Johnson v. United States invalidated ACCA’s residual clause, and Welch made Johnson retroactive, Thompson filed a § 2255 motion arguing his prior convictions no longer qualified as ACCA violent felonies.
- The district court, adopting a magistrate judge’s recommendation, denied relief and refused a certificate of appealability (COA); Thompson appealed seeking a COA.
- The Tenth Circuit applied the categorical approach, examined New Mexico law defining attempt and use of a firearm, and assumed for COA purposes the sentencing court relied in part on ACCA’s residual clause.
Issues
| Issue | Thompson's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether New Mexico attempted first‑degree murder with a firearm qualifies as a violent felony under ACCA’s elements clause | Attempt convictions in NM can be based on slight/preparatory acts and thus may not require use or threatened use of physical force | NM law requires an overt act beyond mere preparation and the firearm enhancement shows use that threatens physical force; therefore the offense fits the elements clause | Held: No substantial ground for debate — attempted first‑degree murder with firearm qualifies under the elements clause; COA denied |
| Whether the attempted aggravated battery conviction qualifies as a violent felony | (Raised on appeal) That conviction does not qualify under ACCA | Government would argue it qualifies (implicitly) | Held: Issue not raised below; appellate court declined to address it absent exceptional circumstances |
| Whether Thompson made a substantial showing of constitutional error under 28 U.S.C. § 2253(c)(2) to obtain a COA | Johnson retroactivity undermines ACCA sentence if residual clause was relied upon; Thompson argued his priors don’t qualify under remaining clauses | Court treated the sentencing reliance as assumed for COA but found no debatable constitutional error as to the elements‑clause analysis for the murder convictions | Held: COA denied — jurists of reason would not debate the district court’s resolution |
| Whether the Court should consider new argument not presented to the district court | Thompson’s counsel raised the aggravated battery argument only on appeal | General rule forbids raising issues not presented below; exceptions are rare | Held: Court refused to consider the newly raised issue absent unusual circumstances |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (U.S. 2015) (invalidating ACCA’s residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (U.S. 2016) (holding Johnson applies retroactively on collateral review)
- Miller‑El v. Cockrell, 537 U.S. 322 (U.S. 2003) (standard for preliminary consideration when deciding whether to grant a COA)
- United States v. Maldonado‑Palma, 839 F.3d 1244 (10th Cir. 2016) (use of a deadly weapon in an offense threatens the use of physical force)
- United States v. Harris, 844 F.3d 1260 (10th Cir. 2017) (affirming use of the categorical approach to determine whether prior convictions qualify under ACCA)