United States v. Thomas Richardson
Case Information
*1 Before BYE, BEAM, and SMITH, Circuit Judges.
___________
PER CURIAM.
Thomas L. Richardson pleaded guilty to one count of being a felon in
possession of a firearm, in violation of
I. Background
On November 21, 2010, Richardson's girlfriend called 911 and reported that she had discovered a firearm that she believed belonged to Richardson under a mattress. She also reported that she had a drug problem. Officers with the Poplar Bluff, Missouri Police Department met with Richardson and his girlfriend at their apartment. Richardson's girlfriend told the officers that she hid the gun behind a bedroom dresser because she feared for her life, and she also stated that Richardson may have had heroin concealed in the apartment. She directed officers to a bedroom dresser where they recovered a 9-millimeter, semi-automatic handgun loaded with 12 rounds of ammunition.
Officers determined Richardson was a convicted felon and the subject of active arrest warrants. They arrested Richardson and, after obtaining consent, searched the apartment. During their search, officers found 28 additional rounds of ammunition along with materials associated with the abuse of illegal controlled substances.
On May 20, 2011, a grand jury indicted Richardson on one count of being an
armed career criminal in possession of a firearm, in violation of
the crime to which a guilty plea is being entered requires a mandatory minimum term of imprisonment of at least fifteen (15) years if the defendant is properly classified as an [a]rmed [c]areer [c]riminal. If the defendant is not classified as an [a]rmed [c]areer [c]riminal, the maximum term of imprisonment is ten (10) years, with no mandatory minimum sentence, follow[ed] by a period of supervised release of not more than three (3) years.
The district court accepted Richardson's guilty plea.
The United States Probation Office prepared a presentence investigation report
(PSR), which indicated that Richardson's criminal history included prior convictions
for several misdemeanors; possession of a controlled substance; two counts of
distribution of a controlled substance on May 16, 1994, and May 18, 1994; and one
count of sale of a controlled substance on May 9, 1995. Because Richardson "ha[d]
three prior convictions for Sale and Distribution of Controlled Substance[s]"
occurring on May 16, 1994, May 18, 1994, and May 9, 1995, the PSR determined
Richardson was an armed career criminal under
Richardson objected to the application of U.S.S.G. § 4B1.4 and the
determination that he was an armed career criminal under
II. Discussion
On appeal, Richardson argues that the district court erred by sentencing him
as an armed career criminal pursuant to
In
Willoughby
, we held that the defendant's sale of drugs "to [an] officer and,
seconds later, to [a] confidential informant," were not "separate and distinct criminal
episodes" but instead "one continuous course of conduct" because they were
"committed, in essence, simultaneously."
Id.
at 741–42 (quotations and citation
omitted). We listed "three factors as important considerations in deciding whether
offenses are sufficiently separate and distinct to serve as individual predicate
convictions for ACCA enhancement: (1) the time lapse between offenses, (2) the
physical distance between their occurrence, and (3) their lack of overall substantive
continuity."
Id.
at 742–43. We noted that "we have repeatedly held that convictions
for separate drug transactions
on separate days
are multiple ACCA predicate
offenses, even if the transactions were sales to the same victim or informant."
Id.
at
742 (quotation, alteration, and citation omitted). "[W]ith respect to the time lapse
between the drug deals," we concluded that "
*5
Richardson also argues that the district court's ruling "ran afoul of the Sixth
Amendment" because "[t]he only information regarding the predicate offenses was
the summary provided by the [PSR]." Richardson contends that because he "did not
admit to his prior offenses occurring on specific dates, and the government offered
no
Shepard
[-]approved documents to support its argument regarding specific dates,
the lower court's determination that these predicate offenses occurred on different
occasions . . . violated
Apprendi v. New Jersey
,
separately "[i]f there is no intervening arrest" unless "the sentences resulted from
offenses contained in the same charging instrument" or "the sentences were imposed
on the same day." U.S.S.G. § 4A1.2(a)(2). He concedes in his brief, however, that this
argument "is foreclosed" by
Willoughby
. Moreover, we have said before that "the
separateness of prior convictions is evaluated differently for purposes of determining
U.S.S.G. § 4B1.1 career offender and section 924(e) armed career criminal statuses."
United States v. Ross
,
cites, is not applicable here. In Shepard , the Supreme Court limited the materials that a district court could consider to determine whether a defendant who had been convicted under an overinclusive statute had been convicted of a predicate offense. Richardson has not alleged that the drug distribution and sales statutes under which he was convicted are overinclusive or that those prior convictions were for something other than a serious drug offense.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
______________________________
Notes
[1] The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri .
[2] Richardson argues that we should interpret § 924(e) in a manner identical to U.S.S.G. § 4B1.1, the career-offender guideline, which counts prior sentences