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United States v. Thigpen

United States Court of Appeals, Eighth Circuit

February 15, 2017

United States of America Plaintiff- Appellee
v.
Antonio Karlos Thigpen, also known as Antionio Karlos Thigpen, also known as Hustler, also known as Tone Cappone, also known as Tone, also known as Tonio Defendant-Appellant

          Submitted: January 13, 2017

         Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before LOKEN, BEAM, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Antonio 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[1] 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.

         Police 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.

         The 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.

         Thigpen 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.

         I.

         Thigpen 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).

         At 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 2K2.1(a)(2).

         Without 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. 2006).

         At 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 ...

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