United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2655
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Robert Thomas, also known *
as Christian Tadlock * [PUBLISHED]
*
Appellant. *
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Submitted: March 12, 2010
Filed: August 4, 2010
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Robert Thomas was convicted following an unconditional guilty plea of being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and receipt
of an unregistered machine gun, in violation of 26 U.S.C. § 5861(d). Thomas was
sentenced to 151 months’ imprisonment. On appeal, Thomas argues the evidence was
insufficient to convict him of being a felon in possession of a firearm. In addition,
Thomas contends that the district court1 violated Fed. R. Crim. P. 32(i)(3)(B) by
failing to make rulings on two Sentencing Guidelines enhancements. We affirm.
I
On August 5, 1976, Robert Thomas was convicted of delivery of LSD, a
controlled substance, in the Circuit Court for St. Clair County, Illinois, and was
sentenced to four to six years in prison. Thomas appealed his conviction, but began
serving his sentence on August 6, 1976. On December 22, 1977, Thomas was
released on bond. On August 14, 1978, while Thomas was still free on bond, the
Appellate Court of Illinois reversed his conviction and remanded the case to the circuit
court for dismissal on the theory that Thomas had been entrapped as a matter of law.
People v. Thomas, 381 N.E.2d 1058 (Ill. App. 1978). The State of Illinois then
appealed the case to the Illinois Supreme Court, which, on October 19, 1979, reversed
the judgment of the appellate court and affirmed Thomas’s conviction and sentence.
People v. Cross, 396 N.E.2d 812, 820 (Ill. 1979). Thomas’s petition for a writ of
certiorari to the United States Supreme Court was denied on March 17, 1980. Thomas
v. Illinois, 445 U.S. 929 (1980).
On April 16, 1980, Thomas faked his own death by staging a suicide. He left
his vehicle abandoned on a bridge in Ballard County, Kentucky. A supposed suicide
note addressed to his wife was left on the seat inside the vehicle. After faking his
death, Thomas traveled throughout the United States and eventually settled in
Farmington, Arkansas, in 1984, where he began living as “Christian Tadlock” with
his girlfriend.
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
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In late September 2007, Special Agent Wes Patterson of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) was contacted by a confidential informant
who advised Patterson that a person known to him as “Chris” had asked the informant
where he might obtain an MG-42 machine gun. Agent Patterson told the informant
to provide Chris with his cellular telephone number so Chris could contact Agent
Patterson. Shortly thereafter, an individual identifying himself as Chris contacted
Agent Patterson and stated that he was interested in purchasing an MG-42 machine
gun. Agent Patterson informed Chris that he had an MG-42 to sell and arrangements
were made to consummate the transaction. On October 16, 2007, Agent Patterson
made contact with Chris at a prearranged site in Joplin, Missouri. Chris arrived at the
appointed location and introduced himself. After Patterson showed Chris an MG-42
firearm, Chris produced $1,200 in United States currency which he handed to Agent
Patterson in payment for the firearm. In return, Patterson handed the firearm to Chris,
who then placed the machine gun in the bed of his pickup truck. As Chris attempted
to enter his vehicle he was apprehended by assisting law enforcement officers. Chris
identified himself as “Christian Tadlock” to the officers and was carrying a valid
Arkansas driver’s license in that name. Shortly thereafter, Christian Tadlock was
determined to be Robert Thomas.
A search warrant was obtained for Thomas’s residence. During the course of
the search, investigators recovered multiple machine guns, 21 rifles, 35 handguns, 3
shotguns, 45,000 rounds of ammunition, 57 hand grenades, pipe bombs, and an
assortment of gun parts. A search of the National Firearms Registration and Transfer
Record revealed that there were no firearms registered to either Christian Tadlock or
Robert Thomas. The machine gun sold to Thomas by Agent Patterson was fully
operational and had traveled in interstate commerce.
A federal grand jury returned a four-count superceding indictment against
Thomas charging him with two counts of being a felon in possession of a firearm, in
violation of 18 U.S.C.§ 922(g)(1), receipt of an unregistered machine gun, in violation
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of 26 U.S.C. §§ 5861(d) and 5871, and possession of a stolen firearm, in violation of
18 U.S.C. § 924(m).
On February 12, 2009, Thomas filed a motion to quash the indictment and
dismiss the case, arguing (1) he was not a convicted felon, and (2) he was unaware
that he had sustained a prior felony conviction. The district court denied the motion.
On February 19, 2009, Thomas pleaded guilty to one count of being a felon in
possession of a firearm, and receipt of an unregistered machine gun. There was
neither a plea agreement nor a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2).
The district court accepted Thomas’s guilty plea. A preliminary presentence
investigation report (PSR) was subsequently prepared by the United States Probation
Department and provided to the parties for comment. On May 15, 2009, Thomas
submitted thirteen written objections to the preliminary PSR. Two of the objections
related to factual findings made by the probation department that impacted his
advisory Sentencing Guidelines range of punishment. Specifically, Thomas
contended that the number of firearms attributed to him should be reduced by forty-
four because “the 44 hand grenades were not ‘live grenades’ they contained gun
powdered [sic] for use in reenactments [sic].” Thomas also objected to receiving “a
two level enhancement because he did not steal a firearm.”
The final PSR was prepared and disseminated to the parties and the district
court on May 28, 2009. The PSR maintained that the contested portions of the
preliminary report were correct and calculated Thomas’s total offense level at 32,
including enhancements for both the number of firearms attributable to Thomas, see
U.S.S.G. § 2K2.1(b)(1)(C), and the fact that one of the firearms was determined to
have been stolen, see U.S.S.G. § 2K2.1(b)(4). The probation officer, in addressing
Thomas’s objections, noted that the grenades, even emptied of the original explosive
charge, contained “gun powder and can explode” and were determined to be
explosives by the ATF. With respect to Thomas’s claim that he should not receive a
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two-level increase to his base offense level for possessing a stolen firearm, the
probation officer replied that the firearm had been reported stolen and was located in
Thomas’s possession.
On July 7, 2009, the district court conducted a sentencing hearing. After hearing
from the Government regarding its objections to the PSR, the district court asked
Thomas’s counsel if he had “any other objections.” Thomas’s attorney replied: “No,
sir, Your Honor. I voiced our objections. In talking to the probation officer and
looking at her responses, I’m satisfied with it.”
The district court then followed the PSR’s recommendation and sentenced
Thomas to 120 months’ imprisonment as to Count One and 31 months’ imprisonment
as to Count Two, to run consecutively, for an aggregate sentence of 151 months,
followed by three years’ supervised release. Thomas appeals.
II
Thomas argues there was an insufficient factual basis to convict him of being
a felon in possession of a firearm. See Fed. R. Crim. P. 11(b)(3). A guilty plea is
supported by an adequate factual basis when the record contains “sufficient evidence
at the time of the plea upon which a court may reasonably determine that the
defendant likely committed the offense.” United States v. Gamble, 327 F.3d 662, 664
(8th Cir. 2003) (internal quotation omitted).
As a preliminary matter, the government argues Thomas waived his right to
challenge the sufficiency of the evidence supporting his convictions because he
pleaded guilty unconditionally.
As this court pointed out in United States v. Cheney, 571 F.3d 764, 768 (8th
Cir. 2009), “[t]he law is unsettled about whether a defendant can appeal the adequacy
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of a factual basis after entering an unconditional guilty plea.” Id. We explained that
while
in United States v. Beck, 250 F.3d 1163, 1165 (8th Cir. 2001), we held
that a defendant, by entering a guilty plea that was not conditional,
waived his right to appeal the sufficiency of the factual basis for one
element of the offense of conviction, . . . in United States v. Marks, 38
F.3d 1009, 1012-13 (8th Cir. 1994), we reviewed the adequacy of a
factual basis under Rule 11 despite an unconditional guilty plea.
Cheney, 571 F.3d at 768. The Cheney court declined to resolve the split of authority,
instead assuming the factual basis of the plea was reviewable and ruling against the
defendant-appellant on the merits. We likewise assume here, without deciding, that
the district court’s determination of a factual basis for Thomas’ unconditional guilty
plea is reviewable on appeal.2
Thomas argues the factual basis underpinning his guilty plea was deficient in
two ways. First, Thomas alleges he is not a felon because he was never resentenced
following the Illinois Supreme Court’s decision. Second, Thomas argues he did not
know he was a felon when he possessed the firearms.
Whether a particular conviction qualifies as a predicate felony for the purpose
of § 922(g) is a question of law for the district court. United States v. Boaz, 558 F.3d
800, 805 (8th Cir. 2009). We agree with the district court that Thomas is a felon.
Although Thomas’s conviction was reversed by the Illinois Court of Appeals, the
2
We also decline to decide whether we review the district court’s decision under
Federal Rule of Criminal Procedure 11(b)(3) in these circumstances through the lens
of plain error, see United States v. Vonn, 535 U.S. 55, 58 (2002), or harmless error,
see Fed. R. Crim. P. 11(h), because we ultimately conclude the district court did not
err in determining that a factual basis existed in this case to support Thomas’s guilty
plea.
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Illinois Supreme Court reinstated Thomas’s conviction. Cross, 396 N.E.2d at 820.
We fail to see how the issue of resentencing is relevant to Thomas’s status as a felon
in light of the conviction itself, but note that Thomas was not resentenced because the
Illinois Supreme Court reinstated his original sentence. Id. We therefore conclude
the district court did not err in determining Thomas is a felon.
Turning to the evidence of Thomas’s knowledge of his status as a convicted
felon, Thomas argues that 18 U.S.C. § 922(g)(1) requires the government to prove a
defendant knew of his status as a felon, and that the evidence was insufficient to prove
he knew of his status.
Thomas’s argument is foreclosed by United States v. Kind, 194 F.3d 900, 907
(8th Cir. 1999). There, this court stated that in a prosecution under § 922(g)(1), “it is
well settled in this circuit that the government need only prove defendant’s status as
a convicted felon and knowing possession of the firearm.” See also United States v.
Lomax, 87 F.3d 959, 962 (8th Cir.1996) (“[T]he ‘knowingly’ element of section
922(g) applies only to the defendant’s underlying conduct, not to his knowledge of the
illegality of his actions.”).
We therefore conclude that Thomas’s guilty plea was supported by sufficient
evidence to support the conclusion that Thomas likely committed the offense.
III
Thomas next argues that the district court failed to comply with Fed. R. Crim.
P. 32(i)(3)(B). The relevant portion of the rule states that “[a]t sentencing, the court
. . . must–for any disputed portion of the presentence report or other controverted
matter–rule on the dispute or determine that a ruling is unnecessary either because the
matter will not affect sentencing, or because the court will not consider the matter in
sentencing.” We have stated that if a defendant disputes material facts in the PSR, the
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court must “refuse to take those facts into account or hold an evidentiary hearing.”
United States v. Morehead, 375 F.3d 677, 679 (8th Cir. 2004).
On the record before us, we agree with the government that counsel for Thomas
withdrew his objections to the PSR at the sentencing proceeding. When the district
court asked defense counsel if he had any objections to the PSR, counsel stated, “No,
sir, Your Honor. I voiced our objections. In talking to the probation officer and
looking at her responses, I’m satisfied with it.” We take this to mean defense counsel
agreed with the probation officer’s defense of the enhancements recommended by the
PSR. We therefore conclude the district court complied with Fed. R. Crim. P.
32(i)(3)(B).
IV
We affirm.
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