United States v. Thomas , 236 F. App'x 834 ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-25-2007
    USA v. Thomas
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-1753
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    Recommended Citation
    "USA v. Thomas" (2007). 2007 Decisions. Paper 890.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/890
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 06-1753
    UNITED STATES OF AMERICA
    v.
    DARNELL THOMAS,
    Appellant
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    D.C. Crim. No. 05-cr-00360
    District Judge: The Honorable John P. Fullam
    Submitted Under Third Circuit LAR 34.1(a)
    May 25, 2007
    Before: CHAGARES, HARDIMAN, and TASHIMA,* Circuit Judges.
    (Opinion Filed: June 25, 2007)
    *
    Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
    Appeals for the Ninth Circuit, sitting by designation.
    OPINION OF THE COURT
    TASHIMA, Circuit Judge:
    Darnell Thomas appeals the sentence imposed following his plea of guilty to two
    bank robberies, in violation of 
    18 U.S.C. § 2113
    (a). Thomas was sentenced to 100
    months’ imprisonment, plus three years of supervised release, a special assessment, and
    restitution. Thomas contends that his sentence should be vacated because he received a
    career offender sentencing enhancement improperly based on facts contained within a
    police report, in violation of Shepard v. United States, 
    544 U.S. 13
     (2005).
    We exercise plenary review over the district court’s determination of whether a
    prior offense is a “crime of violence” under the United States Sentencing Guidelines
    (“U.S.S.G.” or “Guidelines”) § 4B1.2(a). United States v. Siegel, 
    477 F.3d 87
    , 89 & n.1
    (3d Cir. 2007).
    In preparation for sentencing, the probation officer submitted a Presentence Report
    (“PSR”) containing details of Thomas’ prior offense of “endangering the welfare of
    children.” This information was gleaned from a police report. Over the objection of
    Thomas’ counsel, the district court admitted the details of the prior offense and
    determined based on this information that the prior crime was a crime of violence, which
    qualified Thomas as a career offender under U.S.S.G. § 4B1.2(a). This yielded a
    sentencing range of 151-188 months. Without the career offender enhancement, the
    2
    sentencing range would have been 70-87 months. The district court subsequently
    imposed a sentence below the calculated range, citing the age of Thomas’ prior
    convictions and Thomas’ efforts at rehabilitation from his drug habit.
    Although the Guidelines are no longer binding on district courts, their proper
    calculation is reviewable on appeal because, in fashioning a sentence, the district court
    must “take account of the Guidelines together with other sentencing goals.” See United
    States v. Pojilenko, 
    416 F.3d 243
    , 246 (3d Cir. 2005) (quoting United States v. Booker,
    
    543 U.S. 220
    , 259 (2005)). Congress intended the career offender provisions of the
    Guidelines to remove dangerous recidivist violent and drug offenders from the streets.
    See United States v. Parson, 
    955 F.2d 858
    , 864 (3d Cir. 1992). Career offenders receive
    Guideline ranges at or near the maximum allowed for their crimes. See 
    id.
     In assigning
    such a designation to a defendant, the district court may rely only on the statutory
    elements of the prior offenses and sufficiently trustworthy records of the defendant’s
    actual conduct, such as the charging document, the plea agreement, or his own statements
    during a plea hearing. Shepard, 
    544 U.S. at 16-17
    ; Siegel, 
    477 F.3d at 93
    . Police reports
    do not constitute adequate judicial record evidence of the facts underlying a prior
    conviction. Shepard, 
    544 U.S. at 16
    .
    After reviewing the record, we conclude that the district court erred in relying on
    facts contained within a police report in order to determine whether Thomas’ prior
    3
    offense was a “crime of violence” under U.S.S.G. § 4B1.2.1 We will therefore vacate the
    sentence and remand for resentencing.
    4
    1
    The government also “agrees that it is appropriate for this Court to vacate Thomas’
    sentence and remand for resentencing.” Appellee’s Br. at 13.