United States v. Thigpen, Douglas M. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-1866
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS M. THIGPEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1084—Milton I. Shadur, Judge.
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ARGUED JUNE 9, 2006—DECIDED AUGUST 7, 2006
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Before RIPPLE, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. In October 2003, Douglas Thigpen
robbed a TCF Bank branch in a Jewel grocery store in
Glendale Heights, Illinois. He threatened a teller and
escaped with $2,204 in cash. Thigpen eventually was caught
and pleaded guilty to bank robbery in violation of 18 U.S.C.
§ 2113(a).
At sentencing, the district court found that Thigpen had
three prior convictions that qualified him for the application
of the career offender guideline, U.S.S.G. § 4B1.1 (2004).
Specifically, the court determined that a 1990 conviction for
2 No. 05-1866
robbery and a 1999 conviction for aggravated battery
constituted crimes of violence for purposes of the career
offender guideline, while a 1992 conviction for possession
of a controlled substance with intent to deliver comprised a
controlled substance offense. Based on the resulting guide-
line range, the district court imposed a sentence of 151
months’ imprisonment. The district court also ordered
restitution in the amount of $2,204, payable in sixty days.
Thigpen first challenges the district court’s analysis under
the career offender guideline, claiming that the court’s
actions ran afoul of Shepard v. United States, 544 U.S. 13(2005). The government responds that Thigpen waived this
challenge when he failed to present it below. Waiver, of
course, is the intentional relinquishment and abandonment
of a known right, which precludes appellate review. See
United States v. Ortiz, 431 F.3d 1035, 1038 (7th Cir. 2005). By
contrast, forfeiture is simply the failure to make a timely
assertion of a right and leads to plain error review. Id. We
construe waiver principles liberally in favor of a defendant.
See id.Thigpen did not waive his Shepard argument. In both his
sentencing memoranda and at the sentencing hearing,
Thigpen concentrated his challenge on a contrary reading of
Almendarez-Torres v. United States, 523 U.S. 224 (1998),
claiming that he was entitled to a jury determination of
his prior convictions. Since the Supreme Court held other-
wise, the effect of the challenge was to preserve the issue.
Thigpen, however, also cited Shepard in his supplemental
sentencing memorandum, mentioning the diminished
reliability of police reports for career offender purposes.
While he did not properly develop a Shepard argument for
the district court’s consideration, at no point in the record
did Thigpen evince a desire to discard any such argument.
No. 05-1866 3
This is forfeiture, not waiver, and therefore we review for
plain error. See United States v. Rogers, 382 F.3d 648, 650 (7th
Cir. 2004).
Nonetheless, Thigpen gains nothing from review of this
issue. Generally, the career offender guideline increases
a felon’s offense level if he has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1(a). The guidelines define
a crime of violence as an offense under federal or state law,
punishable by imprisonment for more than year, that “has
as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G.
§ 4B1.2(a)(1). A controlled substance offense is an offense
under federal or state law, punishable by imprisonment for
more than a year, “that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance
[ ], or possession of a controlled substance [ ], with intent”
to commit one of the listed, prohibited deeds. U.S.S.G.
§ 4B1.2(b).
The assessment of whether a prior offense qualifies for
a recidivist enhancement, such as the career offender
guideline, depends on the crime of conviction, not on
what the defendant actually did while committing the
crime. See United States v. Lewis, 405 F.3d 511, 513-14 (7th
Cir. 2005). When determining whether a prior convic-
tion falls into one of the enhancement categories, a district
court may only consider “conclusive records made or used
in adjudicating guilt.” Shepard, 544 U.S. at 20-211. The
district court is “limited to examining the statutory defini-
1
Although the Shepard decision arose under the Armed Career
Criminal Act, we have subsequently applied its holding to the
career offender guideline. See United States v. McGee, 408 F.3d 966,
988 (7th Cir. 2006).
4 No. 05-1866
tion, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding made by
the trial judge to which the defendant assented.” Id. at 16. A
district court cannot try to supplement its knowledge about
the actual crime of conviction with facts from other sources
for purposes of its enhancement determination. See, e.g.,
United States v. Hagenow, 423 F.3d 638, 644 (7th Cir. 2005). To
apply a recidivist enhancement, therefore, a district court
may go no further than documents directly establishing
what the conviction is. See United States v. Townsend, 419
F.3d 663, 664 (7th Cir. 2005).
On appeal Thigpen argues that the district court erred
by considering the pre-sentence report (the “PSR”), which in
turn relied on police reports and other background docu-
ments, in drawing its conclusions about the prior convic-
tions. Thigpen’s argument is misplaced. As an initial matter,
nothing in the record suggests that the district court relied
on the PSR when drawing its conclusions about the nature
of the prior offenses. In any event, the district court did not
violate Shepard. The district court referenced three prior
crimes, and each qualifies on its face for one of the two
categories for the career offender enhancement. The com-
ment to the “crime of violence” definition in the guidelines
specifically notes that robbery is a crime of violence,
U.S.S.G. § 4B1.2 cmt. n.1 (2004), and we have stated that
“robbery always is a ‘crime of violence.’ ” Lewis, 405 F.3d at
515. Next, under Illinois law, aggravated battery involves
the use or threatened use of force against another person
and is punishable by imprisonment for more than a year.
720 ILCS 5/12-4. This crime also meets the requirements for
a crime of violence. Finally, the conviction for possession
with intent to deliver under 720 ILCS 570/401 constitutes a
controlled substance offense, as it involves “possession of a
controlled substance with intent to . . . distribute[ ] or
No. 05-1866 5
dispense[ ]” and is punishable by imprisonment for more
than a year. U.S.S.G. § 4B1.2(b). Thigpen does not claim that
any of this information was inaccurate. The district court,
therefore, did not have to go beyond the actual convictions
to find additional facts (about what Thigpen actually did)
for its enhancement determination. See United States v.
Carpenter, 406 F.3d 915, 917 (7th Cir. 2005). While the PSR
certainly contained more information than merely the
crimes of conviction, this would only be a problem if the
district court used these facts to establish a crime of violence
or controlled substance offense. Here the properly consid-
ered records established that the prior convictions consti-
tuted a crime of violence or controlled substance offense.
Thus, the district court did not err when applying the career
offender guideline.
Thigpen also claims that the district court erred by fail-
ing to set a restitution schedule. Thigpen did not object
to the restitution order, so we review for plain error. See
United States v. Pandiello, 184 F.3d 682, 687 (7th Cir. 1999). To
establish plain error, Thigpen has to demonstrate a
clear error that affects a substantial right and, moreover,
impacts “the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Olano, 507 U.S. 725,
733-34, 736 (1993).
The district court ruled that the entire amount of the
restitution was due and payable sixty days after sentencing.
This court has recently emphasized that the statutory
restitution scheme requires a sentencing court to set a
payment schedule, taking into account the defendant’s
financial resources, obligations, and projected earnings. See
United States v. Day, 418 F.3d 746, 761 (7th Cir. 2005); 18
U.S.C. § 3664(f)(2). In Day, we explicitly opposed a dis-
trict court’s attempt to minimize its responsibility to set a
6 No. 05-1866
restitution schedule by ordering “immediate” payment.
Day, 418 F.3d at 761. Such an arrangement effectively
transfers the district court’s responsibility for setting a
restitution schedule to the probation office, which is incon-
sistent with the statute. See id.; see also Pandiello, 184 F.3d at
688. The district court’s restitution order in the present case,
which does no more than set payment in sixty days, has
precisely this defect, and once again transfers authority
properly employed by the court to the probation office. Such
delegation of power from the district court to the probation
office “ ‘deprives the defendant of a substantial right’ and
constitutes ‘a serious structural defect’ affecting the integrity
of the judicial proceedings.” Pandiello, 184 F.3d at 688(quoting United States v. Mohammad, 53 F.3d 1426, 1438-39
(7th Cir. 1995)). This constitutes plain error.
While the district court properly followed Shepard
when applying the career offender guideline, the district
court did not apply proper procedures in its restitution
order. We, therefore, AFFIRM Thigpen’s sentence, but
VACATE the restitution order and REMAND for the imposi-
tion of a proper restitution schedule consistent with our
opinion in Day.
No. 05-1866 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-7-06