United States v. Tommie Thompson ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 1 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50303
Plaintiff-Appellee, D.C. No.
2:16-cr-00385-ODW-1
v.
TOMMIE THOMPSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted December 13, 2019
Pasadena, California
Before: KELLY,** PAEZ, and BADE, Circuit Judges.
Defendant-Appellant Tommie Thompson appeals from a judgment finding
that he violated conditions of his supervised release, ordering that his supervised
release be revoked, and sentencing him to 13 months of imprisonment to be
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
followed by supervised release for an additional term of 60 months. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
In 1999, Mr. Thompson was convicted of possessing, and conspiracy to
possess, cocaine base, heroin, and marijuana with intent to distribute. He was
sentenced to 292 months’ imprisonment followed by a five-year term of supervised
release. The term of imprisonment was later reduced to 235 months and again to
188 months. Mr. Thompson completed his sentence of imprisonment and began
supervised release in 2015.
The probation office filed a petition alleging that Mr. Thompson had
violated the terms of his supervised release by failing to report an arrest by law
enforcement to his probation officer.1 Officers of the Los Angeles Police
Department (LAPD) arrested Mr. Thompson at an illegal marijuana dispensary on
suspicion that he was a felon in possession of a firearm. A shooting had occurred
outside the dispensary and the suspected shooter fled into the facility. Security
footage captured Mr. Thompson removing what appeared to be a firearm from the
waistband of his pants and handing it to another individual. Mr. Thompson did
not report his arrest to his probation officer. He also did not volunteer any
1
The petition also alleged that Mr. Thompson knowingly associated with a felon.
The district court found the evidence on this point lacking and that finding is not at
issue in this appeal.
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information about the arrest when his probation officer called to inquire. In fact,
Mr. Thompson initially denied any arrests or pending charges when asked.
Mr. Thompson denied the allegations in the petition and the district court
held an evidentiary hearing. The court heard evidence that Mr. Thompson suffers
from various mental health issues, has memory problems, and struggles to read.
The court also viewed surveillance video of the incident that led to Mr.
Thompson’s arrest. The district court ultimately found that Mr. Thompson was
aware he had been arrested, had failed to report the arrest as required by his
supervised release conditions, and had possessed a firearm. The court revoked Mr.
Thompson’s supervised release and sentenced him to 13 months’ imprisonment
and a new term of 60 months of supervised release. On appeal, Mr. Thompson
challenges the sufficiency of the evidence in various respects, the district court’s
revocation decision, and the procedural and substantive reasonableness of the
sentence.
We review a district court’s decision to revoke a term of supervised release
for abuse of discretion. United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008).
On a sufficiency challenge, we ask whether any rational trier of fact could have
found the elements of a violation of a condition of supervised release by a
preponderance of the evidence. United States v. King, 608 F.3d 1122, 1129 (9th
Cir. 2010). A sentence imposed upon revocation is reviewed for reasonableness
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pursuant to United States v. Booker, 543 U.S. 220 (2005). United States v.
Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009).
The evidence was sufficient to establish that Mr. Thompson was given
notice of the reporting condition. Written notice of such conditions is required by
18 U.S.C. § 3583(f). Failure to provide written notice of conditions will not
automatically invalidate a revocation of release if the defendant had actual notice
of the condition violated. United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th
Cir. 2002). As Mr. Thompson notes, his original judgment of sentencing included
notice of this condition. Mr. Thompson’s probation officer testified that the officer
who preceded him gave Mr. Thompson information about his conditions in 2015.
The written notice alone would be sufficient.
The evidence was sufficient to establish that Mr. Thompson knowingly
violated the reporting condition.2 The government presented testimony from an
LAPD officer that Mr. Thompson had been arrested, booked at a jail facility, and
fingerprinted. He spent the night in jail and posted bail in order to be released.
2
The parties dispute whether the government was required to prove willfulness or
knowledge. Where a release condition is silent as to what mens rea is required for
violation, this court generally presumes that knowledge is the standard. See United
States v. Phillips, 704 F.3d 754, 768 (9th Cir. 2012); United States v. Napulou, 593
F.3d 1041, 1045 (9th Cir. 2010); United States v. Vega, 545 F.3d 743, 750 (9th Cir.
2008). Mr. Thompson’s reliance on United States v. Jeremiah, 493 F.3d 1042 (9th
Cir. 2007), is misplaced. In that case, the court was reviewing a finding of
willfulness already made by the district court for error. Id. at 1044–46. It does not
stand for the proposition that willfulness is the required standard in other cases.
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Mr. Thompson then failed to report these extensive law enforcement contacts to his
probation officer and further declined to report them when the officer contacted
him to inquire if he had anything he needed to disclose.
The district court did not err by finding that Mr. Thompson possessed a
firearm under 18 U.S.C. § 3583(g)(2). An LAPD officer identified the weapon Mr.
Thompson handled in the footage as a semi-automatic firearm. The same officer
testified that LAPD personnel responded to a report of a shooting at the location.
The court viewed the video and concluded that Mr. Thompson possessed a firearm.
Mr. Thompson’s counsel speculated “So on the video, it could be replicas,” but no
evidence suggests that the object in the footage was a toy, replica, or antique
firearm excluded under 18 U.S.C. § 921(a)(3).3 In these circumstances, the judge
reasonably found by a preponderance of the evidence that Mr. Thompson
possessed a firearm.
Mr. Thompson’s sentence was not procedurally unreasonable. A district
court must state its reasons for imposing a particular sentence. 18 U.S.C.
§ 3553(c). The law does not require “an elaborate explanation” of the reasons for
its sentence. United States v. Emmett, 749 F.3d 817, 821–22 (9th Cir. 2014).
Within-Guidelines sentences “often need[] little explanation.” United States v.
3
This exemption from the statutory definition of firearm is an affirmative defense
for which the defendant bears the burden of proof. United States v. Benamor, 937
F.3d 1182, 1186–87 (9th Cir. 2019), cert. denied, 140 S. Ct. 818 (2020).
5 18-50303
Vasquez-Perez, 742 F.3d 896, 900 (9th Cir. 2014). Where a defendant fails “to
object on the ground that the district court erred procedurally in explaining and
applying the [18 U.S.C.] § 3553(a) factors, we review only for plain error.” United
States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010) (citing United
States v. Sylvester Normal Knows His Gun, III, 438 F.3d 913, 918 (9th Cir. 2010));
accord United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006). Mr.
Thompson did not object.
The district court did not commit plain error. The court announced the
applicable Guidelines range. It then discussed applicable policy statements
contained in the Guidelines. It considered the recommendations of the probation
officer. The court then imposed a within-Guidelines sentence that it felt was
“sufficient but not greater than necessary to comply with the purposes set forth in
[18 U.S.C.] § 3553(a).” This brief explanation does not constitute error, plain or
otherwise.
Similarly, the district court did not err in rejecting Mr. Thompson’s
arguments for mitigation. “[W]hen a party raises a specific, nonfrivolous argument
tethered to a relevant [18 U.S.C.] § 3553(a) factor in support of a requested
sentence, then the judge should normally explain why he accepts or rejects the
party’s position.” United States v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008) (en
banc) (citing Rita v. United States, 551 U.S. 338, 356 (2007)). The district rejected
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Mr. Thompson’s mitigation arguments given his extensive criminal history. Mr.
Thompson generally stated that his mental health and memory problems should
mitigate his sentence, an argument he subsequently undercut by opposing a
condition requiring that he take his medications.
Mr. Thompson argues that the district court improperly considered
punishment as a factor when deciding the sentence. Punishment is excluded as a
permissible factor for district courts to consider on revocation of supervised
release. 18 U.S.C. § 3583(e). The district court’s comments about Mr.
Thompson’s criminal history were made in the context of his argument that he did
not understand that he had been arrested and that he deserved leniency because of
good behavior. Criminal history was relevant to these arguments. The exchanges
highlighted by Mr. Thompson do not show that the district court improperly
considered punishment as a factor in the sentence imposed.
Mr. Thompson argues that the judge repeatedly referenced his placement in
Criminal History Category V, which he urged overstated his criminal record. He
contends that the court failed to recognize his argument that the Category V
designation on his underlying conviction was not correct because it was based on
several juvenile adjudications that should have been excluded from the calculation.
The district court, however, properly used the criminal history category that
7 18-50303
applied at the time Mr. Thompson was originally sentenced to supervised release.
See U.S.S.G. § 7B1.4, cmt. n.1.
Mr. Thompson claims his sentence was substantively unreasonable. This
court does not presume that a within-Guidelines sentence is reasonable. Carty, 520
F.3d at 988. However, we do recognize that “a correctly calculated Guidelines
sentence will normally not be found unreasonable on appeal.” Id. Substantial
deference to the district judge is generally appropriate. See Gall v. United States,
552 U.S. 38, 51–52 (2007).
The district court did not abuse its discretion by imposing a sentence of 13
months’ imprisonment and five additional years of supervised release. This
sentence was within the Guidelines range and in accord with the probation office’s
recommendations. In addition to the conduct already described, Mr. Thompson
cursed at his probation officer at his sentencing hearing and then claimed that it
was “not [his] fault” when confronted by the district court. Mr. Thompson
breached the court’s trust and a sentence at the high end of the Guidelines range
was not unreasonable.
Mr. Thompson also contends that the court failed to address his argument for
mitigation because he “served four years longer in custody for the underlying
offense, even though his sentence had been reduced under the changes to the crack
8 18-50303
cocaine sentencing laws.” A fair reading of the sentencing transcript indicates that
the court considered this argument for mitigation but ultimately rejected it.
AFFIRMED.
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