United States v. Thornton , 222 F. App'x 325 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4602
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL RAY THORNTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:05-cr-00029-JCT)
Argued: February 2, 2007 Decided: March 21, 2007
Before WILKINS, Chief Judge, and SHEDD and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Fay Frances Spence, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Roanoke, Virginia, for Appellant. Jean Barrett Hudson, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W.
Shelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Ray Thornton appeals his criminal sentence. As we
explain below, we vacate the sentence and remand for further
proceedings.
Thornton was convicted of one count of illegal firearm
possession and one count of illegal body armor possession, in
violation of 18 U.S.C. §§ 922(g)(1) and 931, respectively. Under
18 U.S.C. § 924(e), a person convicted of § 922(g) who has three
prior convictions “for a violent felony . . . committed on
occasions different from one another” is subject to a 15-year
mandatory minimum term of imprisonment. For purposes of § 924(e),
a “violent felony” is any crime punishable by more than one year of
imprisonment that “has as an element the use, attempted use, or
threatened use of physical force against the person of another” or
“is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another . . . .” 18 U.S.C. § 924(e)(2)(B).
Thornton’s presentence report (“PSR”) indicates that he has
prior felony convictions for statutory burglary and maiming (which
occurred in 1973), and for aggravated sexual battery, attempted
rape, and statutory rape (which occurred in 1986). Because of
these convictions, the PSR recommended that Thornton receive the §
924(e) 15-year mandatory minimum. Thornton objected to this
recommendation, arguing that he only has two, rather than three,
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qualifying “violent felony” convictions because his statutory
burglary and maiming convictions count as one conviction, his
aggravated sexual battery and attempted rape convictions count as
one conviction, and his conviction for statutory rape is not a
“violent felony” and therefore does not count at all. The district
court overruled Thornton’s objection, holding that the statutory
rape conviction is a “violent felony.” Alternatively, the district
court held that even if the statutory rape conviction is not a
“violent felony,” Thornton still has three qualifying “violent
felony” convictions because the aggravated sexual battery and
attempted rape convictions count separately (i.e., they were
“committed on occasions different from one another”). Thornton
challenges both of these holdings on appeal.
Thornton’s sentence can stand only if we conclude that (1) his
statutory rape conviction is a “violent felony” or (2) his
aggravated sexual battery and attempted rape convictions were
“committed on occasions different from one another.” Either
alternative would suffice to give him three qualifying “violent
felony” convictions.
While not conceding that the aggravated sexual battery and
attempted rape convictions arose from a single criminal episode,
the government does concede that the record does not contain
sufficient information from approved judicial sources from which
the district court could have determined that the convictions were
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committed on different occasions. Brief of Appellee, at 19.
Accordingly, the government argues that if we conclude that
Thornton’s statutory rape conviction is not a “violent felony,”
then we should remand this case for further proceedings in order to
allow the district court to determine whether the aggravated sexual
battery and attempted rape convictions were committed on different
occasions. Id. at 20-21.
In light of this concession, we can uphold Thornton’s sentence
at this stage of the proceedings only if we conclude that his
statutory rape conviction constitutes a “violent felony.” Without
expressing an opinion on the merits of that issue, we have decided
that the prudent course under the circumstances is to remand this
case for further sentencing proceedings in order to allow the
district court to explore further and explain whether the
aggravated sexual battery and attempted rape convictions each
qualify as a “violent felony.” See Anderson v. United States, 417
U.S. 211, 218 (1974) (“We think it inadvisable . . . to reach out
. . . to pass on important questions of statutory construction when
simpler, and more settled, grounds are available for deciding the
case at hand.”). Further, in order to provide a more complete
record on the statutory rape issue, the district court should also
consider and address whether most violations of Va. Code § 18.2-63,
which is the statute under which Thornton was convicted, present a
serious potential risk of physical injury to another person. See
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United States v. Sacko, 178 F.3d 1, 6 (1st Cir. 1999) (remanding to
the district court for evidentiary hearing on issue of whether
sexual penetration of 14-year-old girl by an adult involves conduct
presenting a serious risk of physical injury). On both of these
issues, the district court should permit the parties, if
appropriate, to present evidence.
Based on the foregoing, we vacate the sentence and remand for
further proceedings consistent with this opinion.
VACATED AND REMANDED
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