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United States v. Thomason

United States Court of Appeals, Eleventh Circuit

October 10, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RIC THOMASON JR., Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Florida Docket Nos. 3:03-cr-00133-LC-CJK-1, 3:16-cv-00282-LC-CJK

          Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO, [*] District Judge.

          WILLIAM PRYOR, CIRCUIT JUDGE

         This appeal requires us to decide whether the district court abused its discretion in denying Ric Thomason Jr. a resentencing hearing after it granted his motion to correct his sentence, 28 U.S.C. § 2255, for an error that affected four of his eight counts of conviction but did not change his guideline range. Thomason pleaded guilty to four counts of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(e), and four counts of possession and sale of stolen firearms, id. §§ 922(j), 924(a)(2). The district court ruled that his felon-in-possession convictions qualified for an increased sentence under the Armed Career Criminal Act, id. § 924(e), but that his guideline range of 235 to 293 months of imprisonment remained the same. The district court departed upwards based on Thomason's criminal history and imposed a concurrent sentence of 327 months of imprisonment for the felon-in-possession convictions and 120 months of imprisonment for the stolen-firearms convictions. Thomason moved to correct his sentence after the Supreme Court ruled the residual clause of the Act void for vagueness in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). The district court granted Thomason's motion and, after considering the parties' briefs and exhibits but without holding a hearing, lowered his sentence to the top of the guideline range-293 months of imprisonment-for the felon-in-possession convictions but left the rest of his sentence intact. We affirm.

         I. BACKGROUND

         In 2003, police arrested Ric Thomason Jr., a convicted felon, for selling stolen firearms out of a stolen pickup truck. Between the firearms in Thomason's possession, those he had sold earlier that day, and those he had previously sold to pawn shops, police linked Thomason to 21 stolen firearms, almost all of which had been stolen in recent home burglaries.

         Thomason pleaded guilty to four counts of possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e), and four counts of possession and sale of stolen firearms, id. §§ 922(j), 924(a)(2). The presentence investigation report grouped those counts together for a base offense level of 26. See United States Sentencing Guidelines Manual §§ 2K2.1(a)(1); 3D1.2(d) (Nov. 2003). The report then recommended a four-level increase for an offense involving at least eight but not more than 24 firearms, id. § 2K2.1(b)(1)(B), a two-level increase for an offense involving stolen firearms, id. § 2K2.1(b)(4), a four-level increase because the firearms were possessed during the commission of burglaries, id. § 2K2.1(b)(5), and a three-level reduction for acceptance of responsibility, id. § 3E1.1(a), (b). These adjustments yielded a total offense level of 33.

         The report also determined that Thomason's four felon-in-possession convictions qualified for increased sentences under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because of his four prior convictions for third-degree burglary, two prior convictions for third-degree escape, and one prior conviction for attempted escape. The Act raises the statutory range for the felon-in-possession convictions from zero to 10 years of imprisonment to 15 years to life imprisonment. Id. § 924(a)(2), (e)(1). And it raises the guideline range if the offense level or the criminal history category from the provision of the Guidelines tied to the enhancement is higher than the defendant's offense level or criminal history category from the otherwise applicable provisions of the Guidelines. U.S.S.G. § 4B1.4. The report concluded that although the enhancement raised Thomason's statutory sentencing range, it did not affect his guideline range because his offense level and criminal history category were higher under the otherwise applicable provisions of the Guidelines.

         The district court adopted this conclusion, without objection, but it erred. Under the 2003 version of the Guidelines, the special offense characteristics in section 2K2.1(b)(1)-(4) could not increase "the cumulative offense level" above 29, yet the report included special offense characteristics under those provisions that brought Thomason's cumulative offense level to 32. Absent that error, Thomason's total offense level would have been only 30-one point lower than his offense level under the provision tied to the enhancement. So the higher offense level from the provision tied to the enhancement should have applied, which means the enhancement should have raised his guideline range. See id. § 4B1.4(b)(3)(A). It is undisputed that the district court correctly calculated Thomason's criminal history category as VI.

         Unaware of this error because neither party raised it, the district court determined that Thomason's guideline range was 235 to 293 months of imprisonment. The district court imposed a sentence of 327 months of imprisonment on each of the felon-in-possession convictions, see id. § 4A1.3, and the statutory maximum of 120 months of imprisonment on the stolen-firearms convictions, all to run concurrently. The 327-month term was the result of an upward departure based on the "extent and nature of [Thomason's] criminal history," which included many unscored juvenile and adult convictions and three pending criminal matters involving similar conduct. See id. § 4A1.3. Thomason did not appeal his convictions or sentence.

         In 2016, Thomason filed a motion to correct his sentence, 28 U.S.C. § 2255, on the ground that he no longer qualified for an enhanced sentence under the Armed Career Criminal Act based on Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). The government conceded that Thomason's enhanced sentence was unlawful, but it asked the district court to "preserve the originally imposed sentence" of 327 months of imprisonment by imposing consecutive, instead of concurrent, sentences for his felon-in-possession convictions. Under this approach, the government argued that the district court would not need to hold a resentencing hearing. Thomason replied that a concurrent sentence of 120 months of imprisonment was warranted and that, if the district court were inclined to run his sentences consecutively, he should be afforded a "formal resentencing" where he could present evidence of his post-sentencing rehabilitative conduct.

         The district court granted Thomason's motion to correct his sentence. Instead of holding a formal resentencing hearing, the district court invited the parties to "submit any additional written materials that they wish the court to consider in fashioning a just and reasonable sentence." Thomason submitted a sentencing memorandum with exhibits detailing his post-sentencing conduct. The filings explained that Thomason had obtained his general equivalency diploma and a certificate in horticulture and received a favorable progress report from his case manager. He contended that "[i]mposing the same sentence . . . would not account for [his] demonstrated dedication to rehabilitation and his positive response to incarceration." The government again asked the district court to reimpose a sentence of 327 months on the ground that the district court had already considered all the relevant statutory sentencing factors, 18 U.S.C. § 3553(a), when it departed upwards at the original sentencing hearing.

         The district court reduced Thomason's total sentence to 293 months of imprisonment. It explained that the Johnson error had not affected Thomason's original guideline range of 235 to 293 months of imprisonment but had raised his statutory range for each of the four felon-in-possession convictions. Without the erroneous enhancements under the Act, Thomason's statutory range was zero to ten years of imprisonment on each count-much lower than even the bottom of the guideline range. But the district court explained that a sentence at the top of the range-293 months-was "just and reasonable" based on its consideration of the parties' arguments and the statutory sentencing factors. To reach that sentence, it imposed a 120-month term of imprisonment for each of the four felon-in-possession counts, to run consecutively to the extent necessary to achieve a total term of imprisonment of 293 months. See U.S.S.G. § 5G1.2(d). The district court left "all other provisions" of its original judgment and sentence in "full force and effect."

         We granted a certificate of appealability on "whether the district court abused its discretion in failing to hold a resentencing hearing, with the defendant present, ...


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