United States v. Thompson , 210 F. App'x 276 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4690
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN VICTOR THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:05-cr-00521-HFF)
Submitted: December 4, 2006 Decided: December 20, 2006
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hervery B. O. Young, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for
Appellant. Reginald L. Lloyd, United States Attorney, A. Lance
Crick, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Victor Thompson appeals the sentence imposed for his
conviction on charges that he was a felon in possession of a
firearm or ammunition in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) and 924(e). The defendant argues that the term of
imprisonment imposed was procedurally and substantively
unreasonable. We affirm, because the defendant was sentenced to
the minimum prison term authorized by law for an offender
designated an armed career criminal under 18 U.S.C. § 924(e).
I.
When law enforcement officers went to the defendant’s home
in Easley, South Carolina in order to arrest him for drug
offenses on September 16, 2004, they searched the home and found
a .44-caliber pistol and six .44-caliber bullets. Thompson had
previously been convicted of burglary in 1980, for which he
served 18 months; the robbery of a Wisconsin credit union in
1985; and bank robbery and armed bank robbery for raids upon the
same Wisconsin credit union in 1986. As a result, after officers
recovered the gun, the defendant was charged with being a felon
in possession of a firearm or ammunition under 18 U.S.C.
§§ 922(g)(1), 924(a)(2) and 924(e) (2000 & Supp. 2004).
2
Thompson pled guilty to this charge on February 6, 2006. He
was represented by counsel. At the sentencing hearing, the court
told the defendant that the mandatory minimum term of
imprisonment would be fifteen years. The court said that the
maximum penalty would be life imprisonment, a fine of up to
$250,000, and a term of supervised release of not more than five
years in addition to any term of imprisonment, as well as a
special assessment of $100. The defendant said that he
understood the penalty. The court explained that it would treat
the Federal Sentencing Guidelines as advisory and consider the
factors in 18 U.S.C. § 3553(a) in determining a reasonable
sentence. The defendant said he understood. On April 6, 2006,
the United States Probation Office prepared a presentence
investigative report, which included the defendant’s criminal
history, and noted that because the defendant had three previous
convictions for violent felonies committed on separate occasions,
federal law required imprisonment for no less than fifteen years.
Thompson did not raise any objections to the report.
On May 17, 2006, the district court held a sentencing
hearing. In keeping with his remarks at the plea hearing, the
judge found that Thompson’s prior convictions rendered him
subject to the Armed Career Criminal Act penalty provisions in 18
U.S.C. § 924(e) and that as a result, the court was required to
3
impose a sentence of at least fifteen years in prison. The court
sentenced Thompson to the statutory minimum imprisonment term of
fifteen years, to be followed by a five-year term of supervised
release. The court said that in imposing its sentence it
considered the Sentencing Guidelines and the factors of 18 U.S.C.
§ 3553(a). Thompson filed this timely appeal.
II.
Federal law sets forth minimum sentences applicable to any
armed career criminal convicted of being a felon in possession of
a firearm or ammunition under 18 U.S.C. § 922(g). If an
individual who violates 18 U.S.C. § 922(g) has three previous
convictions
for a violent felony or a serious drug offense, or
both, committed on occasions different from one
another, such person shall be fined under this title
and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to
the conviction under section 922(g).
18 U.S.C. § 924(e)(1) (2000 & Supp. 2004). The term “violent
felony” includes “any crime punishable by imprisonment for a term
exceeding one year” that “(I) has as an element the use,
attempted use, or threatened use of physical force against the
person of another; or (ii) is burglary, arson, or extortion,
4
involves the use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another . . . .” id. § 924(e)(2)(B) (2000).
The fifteen-year term of imprisonment that the defendant
challenges was required by these provisions. A judge may
determine the fact of a prior conviction, even if an offender is
subjected to a higher minimum sentence as a result. Almendarez-
Torres v. United States, 523 U.S. 224 (1998); United States v.
Cheek, 415 F.3d 349, 352-53 (4th Cir. 2005). The district court
in this case determined that the defendant had three prior
offenses triggering the fifteen-year minimum, and the defendant
does not dispute the judge’s determination. As a result, the
district court was required by federal law to impose a fifteen-
year term. Nothing in United States v. Booker, which held that
the Federal Sentencing Guidelines are advisory, requires or even
permits judges to impose sentences below the statutory minimums
Congress established. 543 U.S. 220 (2005). To the extent that
the defendant also challenges his term of supervised release,
which he does not directly discuss in his argument, we find no
basis to disturb the five years imposed, which lies within the
statutory and guidelines ranges and was imposed after
consideration of the factors set forth in 18 U.S.C. § 3553(a).
5
The judgment of the district court is therefore affirmed.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
6