United States v. Antonio Thigpen , 848 F.3d 841 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2482
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United States of America
lllllllllllllllllllll 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
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 13, 2017
Filed: February 15, 2017
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Before LOKEN, BEAM, and BENTON, Circuit Judges.
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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 court1 sentenced him to 120 months’
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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
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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 effective guideline
range would overlap the 29/IV.
Considering the section 3553(a) factors, the court said:
The Court hereby imposes a nonguideline sentence. Although I
considered the guidelines and did the computation of the advisory
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guideline sentencing range, I did not depend solely on that computation
in reaching my sentencing decision in this case. Therefore, any error in
the computation of the advisory guideline computation or any
retroactive changes to the advisory guidelines would not affect or
change in any way my determination that the sentence that is sufficient
but not greater than necessary to achieve the goals of sentencing is the
sentence of 120 months.
In arriving at the sentence, I considered each and every factor at 18
United States Code Section 3553(a). And in arriving at my
nonguideline sentence of 120 months, I particularly relied on the nature
and circumstances of the offense and the history and characteristics of
the defendant.
Although the district court mistakenly believed Thigpen’s total offense level
would be 27 rather than 25 if it decided the Iowa conviction was not “a crime of
violence,” the court “did not depend solely on that computation in reaching [the]
sentencing decision,” noting that any error “would not affect or change in any way
my determination that the sentence that is sufficient but not greater than necessary to
achieve the goals of sentencing is the sentence of 120 months.” Because the district
court stated it would impose the same sentence regardless of the guidelines
calculation, the section 2K2.1(a)(2) enhancement was harmless error. See United
States v. Pappas, 715 F.3d 225, 230 (8th Cir. 2013) (holding harmless any error in
the guidelines calculation where the district court explicitly said it would have
imposed the same sentence “regardless of the guidelines”); United States v. Davis,
583 F.3d 1081, 1094-95 (8th Cir. 2009) (holding harmless any error in the guidelines
calculation where the district court explicitly said it would have imposed same
sentence “regardless of whether [defendant] was a career offender”).
II.
Thigpen asserts the district court erred in imposing a four-level increase under
U.S.S.G. § 2K2.1(b)(4)(B) based on the pistol’s “altered or obliterated serial
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number.” This court reviews factual findings for clear error and application of the
sentencing guidelines de novo. United States v. Jauron, 832 F.3d 859, 863 (8th Cir.
2016).
As a police officer testified at sentencing, Glock pistols have four parts: (1) a
barrel; (2) a slide; (3) a frame; and (4) a spring. Typically, they have one serial
number, located in three places––the barrel, the slide, and the frame. Because the
frame is the only part requiring a federal firearms license, it is considered the
permanent part, and, the number on it is the permanent number. The barrel and slide
are interchangeable and could have different serial numbers than the frame.
Here, the serial numbers on the barrel and slide were unaltered and identifiable.
However, two of the six numbers on the frame were scratched off. As the officer
testified, if the barrel and slide—the interchangeable parts—had been replaced with
serial numbers different from the frame, the pistol would not easily be identifiable
from the partially obliterated serial number on its frame.
Thigpen argues the enhancement was inappropriate because only one of the
pistol’s three serial numbers was altered, and officers identified it from the other two.
Section 2K2.1(b)(4)(B) requires a four-level enhancement if a defendant possesses
a firearm that “had an altered or obliterated serial number.” Whether this section
applies when only one number is altered or obliterated, is an issue of first impression
for this court.
The First and Eleventh Circuits recently held that section 2K2.1(b)(4)(B)
requires only that one serial number be altered or obliterated, even if others are
clearly legible. See United States v. Warren, 820 F.3d 406, 408 (11th Cir.), cert.
denied, 137 S. Ct. 221 (2016); United States v. Serrano-Mercado, 784 F.3d 838, 850
(1st Cir. 2015), cert. denied, 2017 WL 160457 (2017). The Eleventh Circuit
reasoned:
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The guidelines require only that the firearm in question “had an altered
or obliterated serial number.” U.S.S.G. § 2K2.1(b)(4)(B) (emphasis
added). As the First Circuit has recently explained, that language “does
not require that all of the gun’s serial numbers be so affected.” United
States v. Serrano-Mercado, 784 F.3d 838, 850 (1st Cir. 2015). We have
said in other contexts that “[i]n common terms, when ‘a’ or ‘an’ is
followed by a restrictive clause or modifier, this typically signals that
the article is being used as a synonym for either ‘any’ or ‘one.’” United
States v. Alabama, 778 F.3d 926, 932 (11th Cir. 2015). . . . Read in that
fashion, the § 2K2.1(b)(4)(B) enhancement applies either when any
serial number on a gun has been altered or obliterated or when just one
serial number has been altered or obliterated.
The First and Eleventh Circuits’ reasoning “accords with the intent of
Guideline § 2K2.1(b)(4), which is to discourage the use of untraceable weaponry.”
Serrano-Mercado, 784 F.3d at 850 (internal quotations omitted), quoting United
States v. Carter, 421 F.3d 909, 914 (9th Cir. 2005). As the district court found:
The guideline does not require that all the serial numbers on an
assembled firearm be obliterated or altered. One is enough, and that’s
a plain reading of the guideline. And, of course, in this case, having the
serial number obliterated on the frame is the most important serial
number, because that is the definition of a firearm, the frame of it. There
is no evidence that the obliterated serial number on the frame is the same
serial number as on the barrel and the slide.
It just makes sense that if you obliterated a serial number on any firearm
component, particularly the frame, that could result in that particular
component not being traceable. And obviously, this guideline focuses
on tracing the firearms and being able to trace the firearms, and when
you materially change that serial number, it makes accurate information
as to the original of that firearm less accessible.
Based on the plain language of section 2K2.1(b)(4)(B), it applies “when the
serial number on the frame of a firearm is obliterated even if other serial numbers on
the firearm, like the one left intact on the slide [and the barrel] of this weapon, are
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unaltered.” Serrano-Mercado, 784 F.3d at 850. The district court did not err in
applying the section 2K2.1(b)(4)(B) enhancement.
III.
Thigpen argues the district court erred in imposing 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.” This court “review[s] de novo the district court’s
interpretation and application of the Guidelines.” United States v. Jackson, 633 F.3d
703, 705 (8th Cir. 2011).
The four-level enhancement under section 2K2.l(b)(6)(B) applies if a defendant
“[u]sed or possessed any firearm or ammunition in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(6)(B). The guideline commentary defines “another
felony offense” as:
[A]ny Federal, state, or local offense, other than the explosive or
firearms possession or trafficking offense, punishable by imprisonment
for a term exceeding one year, regardless of whether a criminal charge
was brought, or a conviction obtained.
U.S.S.G. §2K2.1, cmt. n.14 (C).
Thigpen’s prior conviction was under Iowa Code § 724.4(1), which says:
Except as otherwise provided in this section, a person who goes armed
with a dangerous weapon concealed on or about the person, or who,
within the limits of any city, goes armed with a pistol or revolver, or any
loaded firearm of any kind, whether concealed or not, or who knowingly
carries or transports in a vehicle a pistol or revolver, commits an
aggravated misdemeanor.
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Thigpen maintains his conviction is excepted from the definition of “other
felony offense” as an “explosive or firearms possession or trafficking offense.” In
United States v. Walker, this court rejected this argument, holding Iowa Code §
724.4(1) “does not fall within the narrow Note 14(C) exclusion for ‘the . . . firearms
possession . . . offense.’” United States v. Walker, 771 F.3d 449, 453 (8th Cir. 2014).
While Thigpen disagrees with Walker, he recognizes it is binding precedent. See
United States v. Reynolds, 116 F.3d 328, 330 (8th Cir. 1997) (“One panel may not
overrule another.”).
The district court did not err in assessing the four-level enhancement for
possessing a firearm “in connection with another felony offense.”
IV.
Thigpen believes the district court procedurally erred by stating it was
imposing a non-guideline sentence and then imposing a guideline sentence. This
court “review[s] the imposition of sentences, whether inside or outside the Guidelines
range, [under] a deferential abuse-of-discretion standard.” United States v. Jones,
612 F.3d 1040, 1044 (8th Cir. 2010), quoting United States v. Hayes, 518 F.3d 989,
995 (8th Cir. 2008). It “must first ensure that the district court committed no
significant procedural error.” Id., quoting Gall v. United States, 552 U.S. 38, 51
(2007). Where, as here, the “defendant fails to object timely to a procedural
sentencing error, the error is forfeited and may only be reviewed for plain error.”
United States v. Hill, 552 F.3d 686, 690 (8th Cir. 2009), quoting United States v.
Vaughn, 519 F.3d 802, 804 (8th Cir. 2008). “Under plain error review, the defendant
must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Id.,
citing Johnson v. United States, 520 U.S. 461, 466-67 (1997).
Thigpen cannot show any alleged procedural error affected his substantial
rights or that “but for the error he would have received a more favorable sentence.”
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United States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009), quoting United
States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc). The district court stated
it did not depend solely on the guidelines in reaching a decision. Rather, it engaged
in a thorough analysis of the section 3553(a) factors, noting Thigpen was at
“extremely high risk to recidivate due to his lengthy criminal history” and “prior
association with a Chicago street gang.” It also noted his non-compliance with court-
mandated supervision and his “total lack of respect for the law.” The court’s
statement that it was imposing a non-guideline sentence was not plain error.
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The judgment is affirmed.
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