United States v. Thomas

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 1, 2015
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 14-3231
(D.C. No. 5:12-CR-40044-JAR-2)
TERRY ALLEN THOMAS, (D. of Kan.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, TYMKOVICH, and McHUGH, Circuit Judges. **

Terry Thomas appeals his seventy-two-month sentence for convictions on

three counts of possession with intent to distribute crack cocaine and two counts

of maintaining drug-involved premises. He argues that in determining he had a

prior conviction for purposes of his criminal history category, the district court

erred by relying on a report from an online database of offenders because it did

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
By the court’s Order filed March 26, 2015, granting the Joint Motion to
Waive Oral Argument and Submit Case on the Briefs, this case was ordered to be
submitted without oral argument.
not show he was convicted and sentenced to a crime for at least one year and one

month’s imprisonment.

We conclude the district court in these circumstances did not abuse its

discretion by relying on information contained in the report because it contained

sufficient indicia of reliability. In addition, although the government concedes

the court plainly erred in finding that Thomas’s sentence was for more than one

year and one month, which added criminal history points under USSG § 4A1.1,

we agree the error did not affect his substantial rights. The report showed that

Thomas served a sentence of at least sixty days in prison, which would have left

him in the same criminal history category under the Guidelines.

Accordingly, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we affirm.

I. Background

Thomas was convicted on five counts and was originally sentenced to 130

months in prison. We upheld his convictions on appeal, but we remanded for

resentencing because the district court’s calculation of his criminal history

category was based on a number of insufficiently proven prior convictions.

United States v. Thomas, 749 F.3d 1302 (10th Cir. 2014).

On remand, the district court recalculated his criminal history category, this

time relying on a 2002 conviction for criminal possession of a firearm. The only

proof of this conviction was a printout from the Kansas Adult Supervised

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Population Electronic Repository (KASPER), an online database maintained by

the state Department of Corrections. The report indicated that Thomas was

sentenced for criminal possession of a firearm in January 2002, was “discharged”

in October 2003, and was the subject of a series of disciplinary reports in prison

between May and October 2002. KASPER did not specify the length of Thomas’s

sentence, and it included a disclaimer that it made no warranties about the

accuracy of its information (“Offenders shall not be arrested solely on the basis of

information displayed on this site.”).

The district court held the report established by a preponderance of the

evidence that Thomas had been convicted of a crime in 2002 that resulted in three

criminal history points pursuant to USSG § 4A1.1(a), which placed Thomas’s

criminal history score in Category II, see USSG Ch. 5, Pt. A (Sentencing Table).

His resulting guidelines range was seventy to eighty-seven months in prison, and

the district court sentenced him to seventy-two months.

II. Analysis

Thomas claims his sentence was procedurally unreasonable because it was

based on unreliable information in the KASPER report and that without this

information, he would have fallen into Category I and benefitted from a lower

guidelines range. He additionally argues that the district court could not use the

report because it did not indicate the length of his sentence, making it impossible

to calculate his criminal history score. The government concedes the district

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court erred in concluding that the report established the length of his sentence for

the firearm conviction. We affirm because (1) the information in the report

contained sufficient indicia of reliability and (2) on plain error review, the district

court’s erroneous determination of the length of Thomas’s prior conviction did

not affect his substantial rights.

1. Reliability of the KASPER Report

We review the sentence’s procedural reasonableness under an abuse of

discretion standard. Thomas, 749 F.3d at 1315. “Whenever a prior conviction is

relevant to sentencing, the government must establish the fact of that conviction

by a preponderance of the evidence.” United States v. Cooper, 375 F.3d 1041,

1052 (10th Cir. 2004). Evidence of a prior conviction must be supported by

“sufficient indicia of reliability to support its probable accuracy.” United States

v. Zuniga-Chavez, 464 F.3d 1199, 1203 (10th Cir. 2006) (quoting USSG

§ 6A1.3(a)). The district court’s determination of whether evidence is

sufficiently reliable to establish a prior conviction is a factual matter that we

review for clear error. See United States v. Martinez-Jimenez, 464 F.3d 1205,

1209–10 (10th Cir. 2006).

We reject Thomas’s argument that the KASPER report was not sufficiently

reliable proof of a prior conviction in this case. We have held that “computer

reports and printouts may be sufficiently reliable for a sentencing court to use

them to establish prior convictions,” “at least in the absence of any evidence

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indicating that the reports are unreliable.” Id. at 1210–11 (affirming the district

court’s reliance on printouts from an FBI criminal records database). Moreover,

in an unpublished opinion, we have upheld the use of evidence from government

sources that contain “similar information to that found on a docket sheet.” United

States v. Esparza-Varela, 106 F. App’x 1, 4 (10th Cir. 2004). Here, the KASPER

report includes a case number for the prior conviction, a basic description of the

crime, an offense date, and a sentencing date, all recorded by the state

Department of Corrections. It also includes Thomas’s photograph, physical

description, birth date, and aliases, which were corroborated by the government’s

pre-sentence report.

Thomas offers no evidence as to the unreliability of the KASPER report

aside from the website’s blanket disclaimer that it makes no warranties about

accuracy. In addition, he never rebutted the information contained in the report

with evidence that he was not convicted of criminal possession of a firearm in

2002 or even claims he was not in prison at the times referred to in the report.

Thus, the district court did not clearly err in finding that the KASPER report was

sufficiently reliable in this case or in concluding that the government established

the prior conviction by a preponderance of the evidence. See Zuniga-Chavez, 464

F.3d at 1205 (“Because Defendant did not argue that any persuasive contradictory

evidence tended to show that he was not convicted of the crimes used to enhance

his sentence, we conclude that the government has met its burden of showing the

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prior convictions by a preponderance of the evidence.”); see also Martinez-

Jimenez, 464 F.3d at 1212.

2. Length of the Prior Sentence

Thomas also contends, for the first time on appeal, that the district court

could not consider the KASPER report because its failure to specify the length of

his 2002 sentence made it impossible to calculate his resulting criminal history

score. 1 See United States v. Jackson, 493 F.3d 1179, 1185 n.5 (10th Cir. 2007)

(holding that criminal history is “calculated based on ‘sentences’” rather than

convictions themselves); United States v. Randall, 472 F.3d 763, 766 n.1 (10th

Cir. 2006) (holding the government has “the burden of showing facts necessary to

justify the addition of criminal history points”). Because he did not raise this

argument below, we apply a plain-error review. Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1128 (10th Cir. 2011). Thomas must establish “(1) error, (2) that

is plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. A plain error

in applying the Guidelines creates a rebuttable presumption that the third and

1
Thomas argues that he preserved this argument through his general
challenge to the KASPER report’s reliability, but we have held “vague, arguable
references to a point in the district court proceedings do not preserve the issue on
appeal.” Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993).
Thus, we have “consistently turned down the argument that the raising of a
related theory was sufficient,” and the fact that a new theory “falls under the same
general category” as an argument below does not suffice to preserve it. Id. at
722.

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fourth elements are satisfied. United States v. Sabillon-Umana, 772 F.3d 1328,

1333–34 (10th Cir. 2014).

As an initial matter, the government agrees the district court plainly erred

by using the KASPER report to find that Thomas’s prison sentence for the 2002

conviction was in excess of one year and one month. Because of that, the district

court should not have assessed three criminal history points against him. But the

government argues that the error did not affect Thomas’s substantial rights

because the report established that Thomas had been sentenced to at least sixty

days in prison, which would have resulted in two criminal history points. See

USSG § 4A1.1(b). And two points would have kept his criminal history score in

Category II, see USSG Ch. 5, Pt. A (Sentencing Table), resulting in the same

guidelines range: seventy to eighty-seven months.

We agree. Criminal history points are calculated “based on the sentence

pronounced, not the length of time actually served.” United States v. Holbert,

285 F.3d 1257, 1263 (10th Cir. 2002) (citing USSG § 4A1.2 cmt. n.2). Although

the pre-sentence report states his sentence was for fourteen months, the KASPER

report reveals that Thomas was sentenced in January 2002 and discharged in

October 2003, but does not otherwise disclose the length of the sentence. But

even so, the report contains more. It shows disciplinary reports from prison

between May and October 2002. This demonstrates that the sentence imposed by

the state court covered at least that period, which was greater than sixty days.

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While § 4A1.1(a) allows for three points for a “prior sentence of imprisonment

exceeding one year and one month,” § 4A1.1(b) allows for two points to be

assessed for “each prior sentence of imprisonment of at least sixty days not

counted in [§ 4A1.1(a)].” Accordingly, the district court would not have assigned

him a different criminal history category even if it had been alerted to the error.

See Sabillon-Umana, 772 F.3d at 1334 (“[T]his court and others have sometimes

declined to remand for resentencing in the face of an obvious guidelines error,

reasoning that a new sentencing proceeding would not help the defendant or

enhance the integrity of judicial proceedings.”).

Thomas argues that the length of his sentence cannot be determined from

the length of time he spent in prison, claiming that the report “indicates, at most,

that Mr. Thomas was in . . . custody on particular dates” and that it “does not

prove that Mr. Thomas was serving a sentence imposed for the [firearm]

conviction on those dates.” He cites United States v. Kristl, in which we held that

in determining a defendant’s prior criminal history, the district court erred by

considering the length of an original sentence, as opposed to a reconsidered

sentence that had replaced the original sentence. 2 437 F.3d 1050, 1057–58 (10th

2
Under Colorado law, which does not apply here, an original sentence is
not final if it has been replaced by a reconsidered sentence. Kristl, 437 F.3d at
1058. We found that when considering a prior Colorado conviction, the district
court must look to an original sentence if the reconsidered sentence was merely a
reduction for good behavior after the original sentence was imposed, but must
look to the reconsidered sentence under other circumstances. Id. at 1057–58.

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Cir. 2006). We noted that the length of time the defendant had served in prison

was irrelevant because it may have been served pursuant to the original sentence,

rather than the reconsidered sentence. Id. at 1057 n.4. But in this case, there is

no other sentence alleged on the record for which Thomas would have served time

between May and October 2002, nor does he suggest he was imprisoned for other

crimes. Instead, the only reasonable inference from the KASPER report and the

pre-sentence report was that Thomas was serving a sentence for criminal

possession of a firearm and that the term of imprisonment was at least sixty days.

Thus, the government has rebutted the presumption that the sentencing error

affected Thomas’s substantial rights.

It is also worth noting that on remand, the district court tentatively

considered an eighty-five-month sentence given that Thomas’s “criminal history

has been so extensive and criminal history category two is rather low considering

the many unscored convictions.” R., Vol. 2 at 31. The court settled on a sentence

of seventy-two months. That sentence is within the sixty-three- to seventy-eight-

month guidelines range Thomas asks for on remand. We have long held, to

“correct unobjected-to sentencing errors” our “key concern has been whether

correct application of the sentencing laws would likely significantly reduce the

length of the sentence.” United States v. Brown, 316 F.3d 1151, 1161 (10th Cir.

2003). Thus,

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 [W]here, on plain error review, applying the proper rule
would not likely result in significant reduction in the
length of an erroneous sentence, circuits have chosen not
to exercise their discretion to correct plain sentencing
errors when the difference in the length of the sentence
imposed and correct sentence was not significant enough
to justify recognizing the error.

Id. (ellipsis and internal quotation marks omitted).

Given the district court’s familiarity with Thomas’s criminal record and its

decision to sentence him within the range he asks for on remand, it is especially

unlikely the court would resentence him to a different sentence on a second

remand.

III. Conclusion

For the foregoing reasons, we AFFIRM the sentence imposed by the district

court.

ENTERED FOR THE COURT

Timothy M. Tymkovich
Circuit Judge

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