UNITED STATES оf America, Plaintiff-Appellee v. Timothy A. THORNTON, Defendant-Appellant.
No. 13-3302.
United States Court of Appeals, Eighth Circuit.
Submitted: June 13, 2014. Filed: Sept. 9, 2014.
766 F.3d 875
Carie Allen, Asst. Fed. Public Defender, Kansas City, MO, argued (Stephen C.
Paul S. Becker, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Timothy Thornton pleaded guilty to being a felon in possession of a firearm, in violation of
I. Background
The ACCA imposes a 15-year mandatory minimum prison sentence for those defendants who unlawfully possess а firearm following three or more convictions for serious drug offenses or violent felonies.
(i) has as an element the use, attempted usе, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to anоther.
The PSR showed that Thornton had several prior felony offenses, including a 1992 Kansas conviction for burglary; a 1998 Colorado conviction for burglary; a 2000 Missouri burglary for which he received a suspended imposition of sentence (SIS); and a 2003 Missouri conviction for manufacturing methamphetamine. The PSR stated that all four constituted qualifying predicate offenses for purposes of the ACCA and concluded Thornton was consequently an armed career criminal subject to an enhancеd sentence under the ACCA.
Thornton conceded he sustained two of the three prior convictions necessary for the sentence enhancement: the 1998 Colorado conviction for burglary and the 2003 Missouri conviction for manufacturing methamphetamine. But in objecting to the PSR, Thornton argued the other two offenses are not predicate offenses for purposes of the ACCA. First, Thornton argued that the Missouri SIS for burglary is not a conviction under Missouri law and therefore could not servе as a predicate offense for purposes of the ACCA. Second, as to his Kansas burglary conviction, Thornton asserted that the 1992 Kansas burglary statute is over-inclusive, criminalizing conduct that both is and is not a violent felony; and at sentencing, the gоvernment failed to prove which subsection of the Kansas burglary statute Thornton in fact pleaded guilty to. Lastly, Thornton claimed that his prior convictions needed to be pleaded and proven to a jury beyond a reasonable doubt. The district court disagreed with all of Thornton‘s arguments and sentenced him to 15 years’ imprisonment under the ACCA.
Thornton renews his arguments on appeal. The government concedes that the Missouri SIS is not a “conviction” for purposes of the ACCA and thus is not a рredicate offense.1 Consequently, the only questions remaining on appeal are (1) whether the 1992 Kansas burglary conviction is a predicate offense, and (2) whether the “fact” of Thornton‘s prior convictions had to be submitted to a jury and рroven beyond a reasonable doubt.
A.
“Burglary” is one of the offenses specifically enumerated as a violent felony in
Thornton admits he was convicted of burglary, in violation of
(1) building, manufactured home, mobile home, tent or other structure with intent to commit a felony or theft therein; or
(2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intеnt to commit a felony or theft therein.
We review de novo whether a prior conviction qualifies as a violent felony for purposes of the ACCA. See United States v. Brown, 734 F.3d 824, 825 (8th Cir.2013). In this case, however, the issue before us is whether Thornton‘s prior Kansas conviction was based on a guilty plea to a subsection of the statute that qualifies as generic burglary. “Thus, the issue is whether the government рroved by a preponderance of the evidence that [Thornton] pleaded guilty to a qualifying generic burglary offense with judicial records permitted under the modified categorical approach of [Shepard].” United States v. Forrest, 611 F.3d 908, 913 (8th Cir.2010); see also United States v. Ossana, 679 F.3d 733, 736 (8th Cir.2012) (“When reviewing the Shepard-qualifying materials surrounding a prior conviction, we employ the preponderance of the evidence standard to determine the discrete subsection of a criminal statute at issue.“). On this issue, we review the district court‘s findings for clear error. See United States v. Webster, 662 F.3d 1016, 1018 (8th Cir.2011).
The only judicial records offered at sentencing were a complaint, dated August 26, 1992, and various journal entries. Count II of the complaint alleges Thornton “unlawfully, feloniously, willfully, knowingly and without authority [did] enter into, remain within a building, mobile home, tent, or other structure, to-wit: Bob‘s Conoco, with the intent to commit a felony theft, to-wit: miscellaneous change.” However, the journal entry from Thornton‘s guilty plea on October 8, 1992, explains that Thornton pleaded guilty to a criminal information, not a complaint. Kansas does not use these terms interchangeably, though they may serve a similar function. See
The additional jоurnal entries offered in this case did not provide much additional information to assist in this inquiry. The state court‘s journal entry for the plea hearing simply states that Thornton pleaded guilty to Count II of the information: burglary, in violation of
We conclude that Shepard requires more than what the government offered at sentencing in this case. A charging document (a complaint) was submitted, but the parties agree that it is not the charging document (an information) to which Thornton pleaded guilty. See United States v. Martinez, 756 F.3d 1092, 1097 (8th Cir.2014) (concluding district courts must rely on the document setting forth the charge under which the defendant was convicted, as opposed to a pre-amendment information setting forth a charge of which he was not convicted, as “[a] court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant‘s conviction” (quoting Descamps, 133 S.Ct. at 2293)). The additional documents submitted in the form of journal entries fail to provide a sufficient link between the complaint and the information or to offer any other information upon which the district court could rely when determining whether Thornton pleaded guilty to a generic burglary for purposes of the ACCA. Cf. Soileau, 686 F.3d at 866 (The available Shepard documents “contained sufficient information to show Soileau‘s prior simple burglary convictions qualified as violent felonies. Therefore, the court did not need to analyze all of the documents permissible under the modified categorical approach.“). Based on the record before us, we conclude the district court lackеd sufficient information upon which to find that Thornton pleaded guilty to generic burglary, a qualifying violent felony for purposes of the ACCA.
B.
Thornton also relies upon the recent decision of Alleyne v. United States, – U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), as the basis for his final argument that since he did not admit that he had three prior convictions for violent felony offenses at his guilty plea, the “fact” of having three prior convictions for violent felony offenses needed to be submitted to a jury and proven beyond a reasonable doubt. Because we reverse and remand on other grounds, this argument is no longer apposite. Nevertheless, as we have previously stated, “[T]he Court in Alleyne left intact the rule that enhancements based on the fact of a prior conviction are an exception to the general rule that facts increasing thе prescribed range of penalties must be presented to a jury.” United States v. Abrahamson, 731 F.3d 751, 752 (8th Cir.2013), cert. denied, U.S. —, 134 S.Ct. 1565, 188 L.Ed.2d 576 (2014).
III. Conclusion
Accordingly, we vacate the district court‘s sentence and remand for resentencing.
David ZINK, et al., Appellants