Submitted: January 13, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
LOKEN, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
K. Thigpen pled guilty to being a felon and unlawful user in
possession of a firearm and ammunition, in violation of 18
U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2). The
district court sentenced him to 120 months'
imprisonment. He appeals the sentence, challenging the
guidelines determination. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
received a call about a disturbance between seven or eight
people, one allegedly with a gun. A witness told officers the
one with the gun was a black male wearing a white sweat suit
with a black logo. Searching the area, police found Thigpen,
who matched the description. Officers directed Thigpen to
remain on the porch of the house where he was standing. He
entered the house, closed the door, but exited about 20
seconds later. Police detained him. He admitted possessing
marijuana. Police found about 5 grams in his pocket.
owners of the house consented to a search. Police found a
Glock pistol in a garbage can near the front door. The pistol
had a scratched-off serial number on its frame and had been
reported stolen. The owners denied possession. Thigpen later
admitted putting the gun in the garbage can.
pled guilty. Over his objections, the district court: (1)
increased his base offense level pursuant to U.S.S.G. §
2K2.1(a)(2) based on a prior Iowa felony conviction for
third-degree burglary; (2) imposed a four-level increase
under U.S.S.G. § 2K2.1(b)(4)(B) for a firearm with
"an altered or obliterated serial number;" and (3)
imposed a four-level enhancement under U.S.S.G. §
2K2.1(b)(6)(B) for possession of a firearm "in
connection with another felony offense." Adjusting
downward for acceptance of responsibility, the court
calculated a 29 total offense level and a category IV
criminal history, making the guidelines range 121 to 151
months, which became 120 months due to a statutory maximum.
The court sentenced him to 120 months.
disputes that his Iowa third-degree burglary conviction is a
"crime of violence" under U.S.S.G. §
2K2.1(a)(2). This court "review[s] de novo a
district court's determination that an offense qualifies
as a crime of violence under the Guidelines." United
States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015),
citing United States v. Tessmer, 659 F.3d 716, 717
(8th Cir. 2011).
sentencing, Thigpen argued his third-degree burglary
conviction was not "a crime of violence" because
Iowa's burglary statute is broader than generic burglary.
After sentencing, the United States Supreme Court held that a
conviction under Iowa's burglary statute is not a violent
felony for purposes of the Armed Career Criminal Act.
Mathis v. United States, 136 S.Ct. 2243, 2248
(2016). The government concedes that Thigpen's Iowa
third-degree burglary conviction is not "a crime of
violence" for purposes of enhancement under section
this enhancement, Thigpen's total offense level of 29
becomes 25. Thigpen requests remand, invoking a new
guidelines range of 84-105 months. The government asserts
harmless error. "When the guidelines are incorrectly
applied, [this court] remand[s] for resentencing unless the
error was harmless, such as when the district court would
have imposed the same sentence absent the error."
United States v. Idriss, 436 F.3d 946, 951 (8th Cir.
sentencing, the district court acknowledged the pending
Mathis case, but declined to "speculat[e] as to
what the United States Supreme Court will do, " instead
"apply[ing] the law in the Eighth Circuit which
currently exists." It said:
The Court would note that in terms of the burglary being a
predicate at Paragraph 17, I believe there would be some
overlap if the Court had erred on that and we were at 27/IV.
Then I think the ...