Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Thurmond

United States Court of Appeals, Eighth Circuit

January 29, 2019

United States of America Plaintiff-Appellee
v.
Shaquandis Thurmond Defendant-Appellant

          Submitted: October 15, 2018

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

          Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Shaquandis D. Thurmond pled guilty to possessing an unregistered short-barreled shotgun in violation of 26 U.S.C. §§ 5845(a), 5861(d), and 5871. The district court[1] sentenced him to 35 months' imprisonment and three years of supervised release. After prison, Thurmond violated the conditions of release. The court sentenced him to four months' imprisonment and two years of supervised release. After prison, he again violated the conditions of release. The court sentenced him to 10 months' imprisonment and one year of supervised release. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         At his second revocation hearing, Thurmond admitted four of the six alleged violations. He contested two-association with gang members, and association with individuals "engaged in criminal activity." The evidence submitted for these violations included pictures of Thurmond with people identified as gang members and criminals, testimony from his probation officer, and testimony from a police officer.

         This court reviews "findings of fact as to whether or not a violation occurred for clear error." United States v. Petersen, 848 F.3d 1153, 1156 (8th Cir. 2017). "Clear error exists where, viewing the record as a whole," this court is "left with the definite and firm conviction that a mistake has been committed." United States v. Cotton, 861 F.3d 1275, 1277 (8th Cir. 2017).

         The district court found Thurmond associated with known gang members. He argues this was error because the court "made no specific finding that Mr. Thurmond had any knowledge that Mr. Willis, Mr. Roby, and Mr. Garner are gang members." At the revocation hearing, a police officer testified that Willis, Roby, and Garner were OT5 gang members. The officer also testified that he and another officer saw Thurmond leave Garner's apartment with Willis, Roby, and another man, Tyran Collins. Inside, police found marijuana, a marijuana scale, and Thurmond's work ID. The government introduced pictures of Thurmond with Roby and Willis flashing gang signs. Based on this evidence, the court did not clearly err in finding Thurmond associated with known gang members.

         The district court also found Thurmond associated with individuals involved in criminal activity. At the revocation hearing, the police officer testified that Thurmond associated with OT5 gang members who were engaged in drug and firearm crimes. The government also introduced pictures of Collins using drugs and holding a firearm. Based on this evidence, the court did not clearly err in finding he associated with individuals involved in criminal activity.

         II.

         Thurmond believes the court erred by not allowing him "to speak during allocution regarding his alleged association with gang members." "The denial of the right to presentence allocution is a significant procedural error." United States v. Hoffman, 707 F.3d 929, 937 (8th Cir. 2013). Generally, it is reviewed de novo. United States v. Kaniss, 150 F.3d 967, 969 (8th Cir. 1998). Where, as here, there is no objection, this court reviews for plain error. United States v. Fleetwood, 794 F.3d 1004, 1005 (8th Cir. 2015). Under plain error review, Thurmond "must show: (1) an error; (2) the error is plain; (3) the error affects his substantial rights; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017) (internal quotation marks omitted).

         At the revocation hearing, the court told Thurmond, "this is the time in the proceeding when you have a chance to speak." Thurmond replied, "Thank you, everybody, for your time for coming here today. I wanted to speak on the gang situation. I know I've been found guilty, but may I-may I please have time to speak on that?" The court responded: "No. You can talk to me about anything else, but I've already made my findings so I really don't care what you have to say about that subject." Thurmond did not object but rather provided a lengthy statement (over two transcript pages) on other issues.

         Unless waived, a defendant is "entitled to . . . an opportunity to make a statement and present any information in mitigation. Fed.R.Civ.P. 32.1(b)(2)(E). This court need not decide whether the district court erred in applying Rule 32.1(b)(2)(E) because Thurmond "has not shown any such error 'affected his substantial rights and seriously affected the fairness, integrity, or reputation of the judicial proceedings.'" ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.