Submitted: October 15, 2018
from United States District Court for the Northern District
of Iowa - Cedar Rapids
WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
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 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.
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.
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
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.
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.
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).
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.
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.'" ...