United States v. Thomas Richardson

Filing

PER CURIAM OPINION FILED - THE COURT: KERMIT E. BYE, C. ARLEN BEAM and LAVENSKI R. SMITH (UNPUBLISHED) [3927214] [12-1096]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 12-1096
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United States of America,
Appellee,
v.
Thomas L. Richardson,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
*
*
[UNPUBLISHED]
*
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Submitted: June 11, 2012
Filed: June 29, 2012
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Before BYE, BEAM, and SMITH, Circuit Judges.
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PER CURIAM.
Thomas L. Richardson pleaded guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court1 determined that Richardson was an armed career criminal under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and sentenced him to the
statutory minimum of 180 months' imprisonment. Richardson appeals his sentence,
arguing that he is not an armed career criminal under § 924(e). We affirm.
1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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I. Background
On November 21, 2010, Richardson's girlfriend called 911 and reported that
she had discovered a firearm that she believed belonged to Richardson under a
mattress. She also reported that she had a drug problem. Officers with the Poplar
Bluff, Missouri Police Department met with Richardson and his girlfriend at their
apartment. Richardson's girlfriend told the officers that she hid the gun behind a
bedroom dresser because she feared for her life, and she also stated that Richardson
may have had heroin concealed in the apartment. She directed officers to a bedroom
dresser where they recovered a 9-millimeter, semi-automatic handgun loaded with 12
rounds of ammunition.
Officers determined Richardson was a convicted felon and the subject of active
arrest warrants. They arrested Richardson and, after obtaining consent, searched the
apartment. During their search, officers found 28 additional rounds of ammunition
along with materials associated with the abuse of illegal controlled substances.
On May 20, 2011, a grand jury indicted Richardson on one count of being an
armed career criminal in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). On September 28, 2011, Richardson pleaded guilty to being
a felon in possession of a firearm. According to a written agreement, the parties
agreed that
the crime to which a guilty plea is being entered requires a mandatory
minimum term of imprisonment of at least fifteen (15) years if the
defendant is properly classified as an [a]rmed [c]areer [c]riminal. If the
defendant is not classified as an [a]rmed [c]areer [c]riminal, the
maximum term of imprisonment is ten (10) years, with no mandatory
minimum sentence, follow[ed] by a period of supervised release of not
more than three (3) years.
The district court accepted Richardson's guilty plea.
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The United States Probation Office prepared a presentence investigation report
(PSR), which indicated that Richardson's criminal history included prior convictions
for several misdemeanors; possession of a controlled substance; two counts of
distribution of a controlled substance on May 16, 1994, and May 18, 1994; and one
count of sale of a controlled substance on May 9, 1995. Because Richardson "ha[d]
three prior convictions for Sale and Distribution of Controlled Substance[s]"
occurring on May 16, 1994, May 18, 1994, and May 9, 1995, the PSR determined
Richardson was an armed career criminal under 18 U.S.C. § 924(e) and applied "the
provisions of Section 4B1.4," raising Richardson's offense level to 33. After a threelevel reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and
(b), the PSR calculated Richardson's final offense level as 30 and his criminal history
category as V. The PSR stated that the recommended Guidelines range for
Richardson's sentence was "normally 151 to 188 months; however, as the statutory
minimum sentence is 15 years, . . . the [G]uideline[s] imprisonment range becomes
180 to 188 months."
Richardson objected to the application of U.S.S.G. § 4B1.4 and the
determination that he was an armed career criminal under 18 U.S.C. § 924(e).
Richardson argued that counts one and two of his conviction for distribution of a
controlled substance "were not committed on occasions sufficiently different from
one another to invoke the [a]rmed [c]areer [c]riminal penalties." At sentencing, the
district court overruled Richardson's objection and sentenced Richardson to 180
months' imprisonment.
II. Discussion
On appeal, Richardson argues that the district court erred by sentencing him
as an armed career criminal pursuant to 18 U.S.C. § 924(e) because his prior
conviction for two counts of distribution of a controlled substance does not constitute
two, separate predicate offenses. We review de novo a district court's determination
that a defendant's criminal convictions are predicate offenses under the ACCA.
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United States v. Willoughby, 653 F.3d 738, 741 (8th Cir. 2011). Under § 924(e)(1),
a defendant convicted of being a felon in possession of a firearm is an armed career
criminal if he has "three previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from one another." (Emphasis
added.) "[T]o qualify as predicate offenses under the statute, each conviction must be
a separate and distinct criminal episode, rather than part of a continuous course of
conduct." Willoughby, 653 F.3d at 741 (quotation and citation omitted).
In Willoughby, we held that the defendant's sale of drugs "to [an] officer and,
seconds later, to [a] confidential informant," were not "separate and distinct criminal
episodes" but instead "one continuous course of conduct" because they were
"committed, in essence, simultaneously." Id. at 741–42 (quotations and citation
omitted). We listed "three factors as important considerations in deciding whether
offenses are sufficiently separate and distinct to serve as individual predicate
convictions for ACCA enhancement: (1) the time lapse between offenses, (2) the
physical distance between their occurrence, and (3) their lack of overall substantive
continuity." Id. at 742–43. We noted that "we have repeatedly held that convictions
for separate drug transactions on separate days are multiple ACCA predicate
offenses, even if the transactions were sales to the same victim or informant." Id. at
742 (quotation, alteration, and citation omitted). "[W]ith respect to the time lapse
between the drug deals," we concluded that "section 924(e) does not require separate
prosecutions; it is sufficient that the offenses occurred at different times." Id. at 743
(quotation, alteration, and citation omitted). In light of Willoughby, the district court
did not err in determining that Richardson's two-count conviction for distribution of
a controlled substance constituted two, separate predicate convictions for ACCAenhancement purposes when the sales comprising each count of the conviction
occurred on separate days.2

2

Richardson argues that we should interpret § 924(e) in a manner identical to
U.S.S.G. § 4B1.1, the career-offender guideline, which counts prior sentences
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Richardson also argues that the district court's ruling "ran afoul of the Sixth
Amendment" because "[t]he only information regarding the predicate offenses was
the summary provided by the [PSR]." Richardson contends that because he "did not
admit to his prior offenses occurring on specific dates, and the government offered
no Shepard[-]approved documents to support its argument regarding specific dates,
the lower court's determination that these predicate offenses occurred on different
occasions . . . violated Apprendi v. New Jersey, 530 U.S. 466 (2000)." In Apprendi,
the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Because
"§ 924(e) focuses on the fact of the conviction," prior convictions used to establish
a defendant's status as an armed career criminal need not be pled in the indictment or
proved beyond a reasonable doubt. United States v. Campbell, 270 F.3d 702, 707–08
(8th Cir. 2011); see also United States v. Abernathy, 277 F.3d 1048, 1050 (8th Cir.
2002).3

separately "[i]f there is no intervening arrest" unless "the sentences resulted from
offenses contained in the same charging instrument" or "the sentences were imposed
on the same day." U.S.S.G. § 4A1.2(a)(2). He concedes in his brief, however, that this
argument "is foreclosed" by Willoughby. Moreover, we have said before that "the
separateness of prior convictions is evaluated differently for purposes of determining
U.S.S.G. § 4B1.1 career offender and section 924(e) armed career criminal statuses."
United States v. Ross, 569 F.3d 821, 824 n.3 (8th Cir. 2009).
3

Moreover, Shepard v. United States, 544 U.S. 13 (2005), which Richardson
cites, is not applicable here. In Shepard, the Supreme Court limited the materials that
a district court could consider to determine whether a defendant who had been
convicted under an overinclusive statute had been convicted of a predicate offense.
Richardson has not alleged that the drug distribution and sales statutes under which
he was convicted are overinclusive or that those prior convictions were for something
other than a serious drug offense.
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III. Conclusion
Accordingly, we affirm the judgment of the district court.
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