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Precedential or Non-Precedential: Non-Precedential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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NOT PRECEDENTIAL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
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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.