United States v. Thornton, Terrance ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1465
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRANCE THORNTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 482—James B. Zagel, Judge.
____________
ARGUED MAY 5, 2006—DECIDED SEPTEMBER 12, 2006
____________
Before KANNE, WOOD, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Defendant Terrance Thornton was
convicted of being a felon in possession of a firearm, 18
U.S.C. § 922(g), and possession of a firearm with an obliter-
ated serial number, § 922(k). Thornton was sentenced to
252 months’ imprisonment (21 years) under the Armed
Career Criminal Act, 18 U.S.C. § 924(e), (“ACCA”). He now
presents us with a number of issues for review attacking his
convictions and sentence under the ACCA, none of which
merit any relief. The convictions and sentence are therefore
affirmed.
2 No. 05-1465
I. HISTORY
Late on a November night in 2002, the city of Elgin,
Illinois was rocked by gunfire from a drive-by shooting.
Initial reports indicated only the location of the shooting
and that the shots had been fired from a Sport Utility
Vehicle. Several officers responded directly to the scene of
the shooting, while others scoured the area hoping to find
the suspect vehicle.
Within twenty minutes, Officers Sheehan and Schultz,
driving separately, came upon an SUV parked at a gas
station. This gas station was within a couple of miles of the
shooting. While still in his car, Schultz was able to see the
driver of the SUV, later identified as Darius Hyte, get out
and go into the station. The officers decided to investigate.
As they pulled into the gas station, Sheehan noticed that
the SUV was the only car in the lot, and that the only
people in the gas station were two customers, later identi-
fied as Hyte and Thornton, and one store employee. The
SUV was parked with its engine running and lights on.
The officers stopped their cars and headed toward the gas
station’s front door. Before they reached it, Hyte and
Thornton came out. Sheehan asked Thornton to step aside
and Schultz did the same with Hyte. Sheehan then asked
Thornton if he was driving the SUV. Thornton responded by
saying that “his girl was driving” it. After getting Thorn-
ton’s name and birth date, Sheehan used the police radio on
his person to run a warrant check on Thornton. It came
back positive for an outstanding warrant for felony domestic
battery. Thornton was arrested. The whole encounter, from
the time Sheehan first approached Thornton until the time
dispatch provided the results of the warrant check, lasted
three to four minutes.
After placing Thornton in his squad car, Sheehan looked
into the passenger window of the SUV. Sitting on the
passenger side floorboard he saw a black semiautomatic
No. 05-1465 3
handgun and a box of ammunition. He opened the door
of the SUV to take a closer look, but never touched the gun.
Evidence technicians arrived later to collect the gun, which
had its serial number obliterated. Two cellular phones were
also retrieved from the SUV. One phone was found sitting
between the passenger seat and the center console, and the
other was in the center console. Further investigation of the
phone found closer to the passenger seat revealed several
numbers programmed into its address book belonging to
people who knew Thornton. One of the numbers in the
address book was an attorney who had represented Thorn-
ton. The phone also logged an incoming call on the night of
the shooting from a girlfriend of Thornton’s.
Officers also collected an empty Swisher Sweets cigar box
and a pack of nearly empty Newport cigarettes from the
SUV. When he was arrested, Thornton had a new, un-
opened box of Philly blunt cigars. Hyte was also arrested,
and he had in his possession a pack of Newport cigarettes.
Forensic evidence later tied the gun in the SUV to the
shooting. The shell casings at the scene of the shooting and
those found in the SUV were the same nine millimeter
Luger type. At trial, an Illinois State Police firearm’s expert
testified that the shell casings found at the scene of the
shooting had been fired from the gun found in the SUV.
Forensic evidence also tied Thornton to the gun, though
indirectly—his fingerprint was found on the magazine in
the handgun.
Prior to trial, the judge denied Thornton’s motion to
suppress, which argued the evidence against him was
obtained as a result of an unconstitutional stop and arrest.
At trial, Thornton objected to a portion of the jury in-
struction defining joint possession. His objection was to
the portion of the instruction italicized below:
Possession may be sole or joint. If one person alone
has actual or constructive possession of a firearm,
possession is sole. If two or more persons share actual
4 No. 05-1465
constructive possession of a firearm, possession is joint.
An individual may possess a firearm even if other
individuals may have access to a location where posses-
sion is alleged. Also, an individual may possess a
firearm even if other individuals share the ability to
exercise control over the firearm. Possession may be
joint.
Thornton argued that this portion of the instruction defined
possession too broadly, an argument he now reasserts
before us.
Also at trial, the judge sustained the government’s
objections to Thornton’s attempts to call two police officers
to the stand: Officers Hooker and Mendiola. Thornton
wanted to call Hooker to impeach Officer Schultz’s testi-
mony that there were only two people (Thornton and Hyte)
in the gas station when the officers arrived on the scene.
According to Thornton, Hooker had been told by the gas
station attendant that two other customers were present in
the store when Thornton and Hyte entered. Thornton also
proffered that Mendiola would testify that he was present,
along with the other officers, when Hyte was initially
encountered outside of the gas station. According to Thorn-
ton, Mendiola could establish that while being questioned,
Hyte called another person with his cellular phone, and
that Hyte told Mendiola the SUV belonged to Hyte’s
girlfriend. Thornton viewed the evidence of Hyte calling
someone as raising the inference a third party—Hyte’s
girlfriend—might have been present in the SUV and in
possession of the gun. The judge excluded both witnesses on
hearsay grounds.
After he was convicted, Thornton was sentenced under
the ACCA. One of the three necessary predicate violent
felonies included a 1990 burglary conviction. The only
evidence in the record of this conviction is an entry in
No. 05-1465 5
Thornton’s Presentence Investigation Report (“PSR”). After
identifying the conviction, the PSR states:
According to court records, the defendant was originally
charged with residential burglary, possession of canna-
bis and theft. He was convicted on a plea of guilty to the
amended charge of burglary, and the other two counts
were dismissed (nolle prosequi). The defendant was
represented by counsel.
The amended criminal complaint charged that the
defendant committed the offense of burglary (a Class 2
felony) in that without authority, he knowingly entered
a building of another, [name and address omitted], with
the intent to commit a theft.
At his sentencing hearing, Thornton argued that all of his
qualifying convictions should have been submitted to the
jury. He also took specific aim at the 1990 burglary convic-
tion, arguing that it was “incorrect” to designate this as a
qualifying conviction. The entirety of his objection in this
regard is as follows:
In addition, one of the cases that [was] mentioned was
the 1990 case regarding him being a career criminal
in the PSI report was this 1990 case for burglary case.
It is a burglary case. It is not a residential burglary
case. There is case law out there that discusses this
in US v. Hicks that states that a general burglary does
not fall within the violent felony provision to be eligible
under 924.
The government maintained that all of Thornton’s
qualifying convictions were properly considered. The judge
found the Guideline’s sentence—which included the
ACCA enhancement—properly calculated and sentenced
Thornton accordingly.
6 No. 05-1465
II. ANALYSIS
Thornton raises the following issues with regard to his
convictions, which will be addressed in turn: first, lack of
both reasonable suspicion to stop and probable cause to
arrest; second, insufficient evidence to support the jury’s
verdict; third, error in the jury instruction defining posses-
sion; and, fourth, abuse of discretion in the district judge’s
exclusion of certain witness testimony. He also attacks his
sentence under the ACCA and the reasonableness of his
sentence.
A. Convictions
First, the district judge made no error in denying the
motion to suppress. We review the court’s legal conclu-
sions de novo and factual determinations for clear error.
United States v. Cellitti, 387 F.3d 618, 621 (7th Cir. 2004)
(citation omitted). Thornton argues the officers did not have
reasonable suspicion to stop him when he first came out of
the gas station, but this argument misstates the judge’s
ruling and ignores crucial facts upon which the judge relied.
What the judge said was that when Officer Sheehan first
approached Thornton coming out of the gas station and
asked him whether the SUV was his, the encounter was
voluntary. Thornton points us to no facts in the record
giving us reason to doubt this ruling. See, e.g., Kaupp v.
Texas, 538 U.S. 626, 630 (2003) (giving examples of circum-
stances indicating a seizure as opposed to a voluntary
encounter, such as “ ‘the threatening presence of several
officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language
or tone of voice indicating that compliance with the officer’s
request might be compelled’ ”) (quoting United States v.
Mendehall, 466 U.S. 544, 554 (1980)).
All the officer did was ask Thornton questions as he came
out of the gas station, which Thornton answered volun-
No. 05-1465 7
tarily. There were three officers, but Thornton was also
accompanied by Hyte. The officers neither displayed their
weapons nor touched either suspect, and there is no
indication whatsoever in the record that the officers’ tone,
language, or other action would have communicated to
Thornton that he was seized. See id. at 629 (explaining that
a stop is a seizure and not voluntary when “the police
conduct would ‘have communicated to a reasonable per-
son that he was not at liberty to ignore the police presence
and go about his business’ ”) (quoting Florida v. Bostick, 501
U.S. 429, 437 (1991)). Thus, no reasonable suspicion was
necessary when Officer Sheehan first approached Thornton,
and its existence at the beginning of the encounter is
therefore irrelevant. See United States v. Hendricks, 319
F.3d 993, 999 (7th Cir. 2004) (“[L]aw enforcement officers
do not violate the Fourth Amendment’s prohibition of
unreasonable seizures merely by approaching individuals
on the street or in other public places and putting questions
to them if they are willing to listen.”) (quoting United States
v. Drayton, 536 U.S. 194, 200 (2002)).
The judge also decided that from the outset the officers
had reasonable suspicion to believe the SUV was involved
in criminal activity. Furthermore, the judge concluded
that reasonable suspicion to stop Thornton existed once
he voluntarily tied himself to the SUV by telling the
officer that his girlfriend was driving it. We agree. See
United States v. Raibley, 243 F.3d 1069, 1074 (7th Cir.
2001) (“Even facts susceptible of an innocent construc-
tion will support the decision to detain an individual
momentarily for questioning, so long as one may rationally
infer from the totality of the circumstances—the whole
picture, that the person may be involved in criminal activ-
ity.”) (citations and quotations omitted). Therefore, Thorn-
ton was properly stopped after he voluntarily tied himself
to the SUV.
And this proper investigatory stop did not turn into an
arrest without probable cause. Within three to four minutes
8 No. 05-1465
of initially approaching Thornton, the officers learned that
a warrant was outstanding for his arrest. That information
supports probable cause for the arrest whether or not it was
correct. See United States v. Mounts, 248 F.3d 712, 715 (7th
Cir. 2001) (citing United States v. Hensley, 469 U.S. 221,
231 (1985)); United States v. Hairston, 763 F.2d 233, 235
(7th Cir. 1985).
Thornton also argues that the officers did not have a
proper reason to look into the windows of the SUV, but this
argument is clearly without merit. An officer needs
no reason to look through the windows of a car parked in a
public place. Texas v. Brown, 460 U.S. 730, 740 (1983)
(“There is no legitimate expectation of privacy shielding
that portion of the interior of an automobile which may
be viewed from outside the vehicle by either inquisitive
passersby or diligent police officers.”) (citations omitted);
United States v. Willis, 37 F.3d 313, 315-17 (7th Cir. 1994)
(explaining that police officer did not need reasonable
suspicion to look into a car parked in a school parking lot).
Second, we review Thornton’s sufficiency of the evi-
dence argument by viewing all of the facts in the light most
favorable to the prosecution and questioning whether any
rational trier of fact could have found him guilty beyond a
reasonable doubt. United States v. Carrillo, 435 F.3d 767,
775 (7th Cir. 2006). We will only overturn Thornton’s
conviction “if the record is devoid of evidence” of guilt. Id.(citation omitted). Thornton argues the evidence was
insufficient to prove he knowingly possessed a gun, much
less a gun with an obliterated serial number. The gun was
found on the passenger side floorboard of the SUV. Evi-
dence placing Thornton in the SUV included, among other
things: the cellular phone near the passenger seat which
contained the phone numbers of Thornton’s girlfriend and
attorney; Thornton’s proximity to the SUV at the gas
station with its engine running and the lights on; and, the
empty packet of cigars in the SUV and the fresh pack
No. 05-1465 9
Thornton had on his person after leaving the gas station.
Thornton is also tied quite closely to the gun by the pres-
ence of his fingerprint on the magazine found in it. From
these facts a rational jury could have concluded that
Thornton knowingly possessed the gun. After concluding
that he knowingly possessed the gun, the jury also could
have concluded that he knew the gun’s serial number had
been obliterated, given that one need only look at the gun
to attain that knowledge. See, e.g., United States v.
Tylkowski, 9 F.3d 1255, 1260-61 (7th Cir. 1993) (circum-
stantial evidence of defendant’s control over a box sufficient
to support the reasonable inference that he knew it con-
tained illegally converted machine guns with obliterated
serial numbers).
Third, we reject Thornton’s argument that the jury
instruction did not properly define possession. Whether an
instruction accurately states the law is an issue we re-
view de novo. United States v. Smith, 308 F.3d 726, 740 (7th
Cir. 2002). The portion of the instruction Thornton attacks
as defining the law too broadly—that defining joint
possession—accurately states the law because possession
may be joint, and nothing about the way the instruction
reads misstates that principle. See United States v. Kitchen,
57 F.3d 516, 521 (7th Cir. 1995) (citations omitted).
Fourth, there is no error in the judge’s ruling to exclude
the testimony of Officers Hooker and Mendiola, a ruling we
review for abuse of discretion. United States v. Aldaco, 201
F.3d 979, 985 (7th Cir. 2000). That proposed testimony—a
recounting by the officers of what others told them—would
have been nothing more than impermissible hearsay. See
Fed. R. Evid. 801, 802. The judge did not abuse his discre-
tion in excluding it.
10 No. 05-1465
B. Sentence
Thornton’s primary attack is that he should not have been
sentenced under the ACCA, but he also argues that his
sentence is unreasonable. There are three facets to his
argument that he was improperly sentenced under the
ACCA. We can easily reject the first: that the jury was
required to pass on the existence of all qualifying convic-
tions. See United States v. Stevens, 453 F.3d 963, 967 (7th
Cir. 2006) (noting that “Almendarez-Torres remains intact”);
United States v. Browning, 436 F.3d 780, 782 (7th Cir.
2006) (explaining that “the continued authority of
Almendarez-Torres is not for us to decide”); see also United
States v. Williams, 410 F.3d 397, 402 (7th Cir. 2005) (“[T]he
district court does not violate a defendant’s Sixth Amend-
ment right to a jury trial by making findings as to his
criminal record that exposes him to greater criminal penal-
ties.”) (citations omitted).
Thornton’s second argument, which we review for plain
error only, is that he cannot be sentenced as an armed
career criminal when the only evidence of his convictions—
particularly the 1990 burglary conviction—is the informa-
tion contained in the PSR. Thornton wants us to hold that
a judge must actually have before him or her the actual
records of previous convictions (state-court charging
documents, plea agreements, etc.) before finding a defen-
dant eligible for sentencing under the ACCA. In other
words, Thornton wants us to hold that the PSR’s description
of the relevant records is always insufficient to support a
finding that a defendant is eligible for sentencing under the
ACCA.
Thornton did not make this objection below. His only
objection relied upon the information in the PSR (as
opposed to challenging its sufficiency) and was that the
1990 burglary conviction had been amended from a residen-
tial burglary to a general burglary of a building
No. 05-1465 11
and therefore could not qualify under the ACCA.1 Moreover,
Thornton did not even raise this argument in his opening
brief. That brief only argues that reference to the charging
document alone does not ensure that Thornton was con-
victed of generic burglary (an issue we deal with below).
Normally, we do not consider arguments raised in reply.
United States v. LaShay, 417 F.3d 715, 719 (7th Cir. 2005)
(“Typically, arguments first raised in a reply brief are
considered waived.”) (citation omitted). In any event, we
will consider this argument for plain error. Fed. R. Crim. P.
1
We note that this argument appears to be based on the false
notion that only a residential burglary qualifies as a “violent
felony” for purposes of the ACCA. See Taylor v. United States, 495
U.S. 575, 593-94, 598 (1990) (rejecting the view that the ACCA
incorporates all the common law limitations of burglary, such as
a dwelling, in favor of a broader definition including unlawful
entry into “a building or other structure”) (citations omitted);
United States v. King, 62 F.3d 891, 896 (7th Cir. 1995) (explaining
that burglary of any building is sufficient to meet the definition of
generic burglary).
As Thornton’s counsel alluded to at the sentencing hearing, and
Thornton himself later argued in a pro se motion to reduce
sentence, United States v. Hicks, 122 F.3d 12 (7th Cir. 1997)
explains that only burglary “of a dwelling,” and not mere burglary
of a building, is sufficient to qualify as a “crime of violence” under
the career offender enhancement of U.S.S.G. § 4B1.1. But that is
because the definition of “crime of violence” in § 4B1.2 is specifi-
cally limited to “burglary of a dwelling.” The definition of “violent
felony” for purposes of the ACCA is not so limited, and includes
burglaries of buildings or structures. See 18 U.S.C.
§ 924(e)(2)(B)(ii); U.S. Sentencing Guidelines Manual § 4B1.4,
Application Note 1 (2004) (explaining that “[i]t is to be noted that
the definition[ ] of ‘violent felony’ . . . in 18 U.S.C. § 924(e)(2) [is]
not identical to the definition[ ] of ‘crime of violence’ . . . used in
§ 4B1.1.); see also Taylor, 495 U.S. at 593-94, 598; King, 62 F.3d
at 896.
12 No. 05-1465
52(b); United States v. Gray, 410 F.3d 338, 345 (7th Cir.
2005). To require relief, an error must be plain, affect
substantial rights, and also “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” Gray,
410 F.3d at 345 (citations and quotations omitted).
The district court’s reliance on the PSR in this case is not
plain error. We have previously explained that it is not even
error for a court, when sentencing under the ACCA, to rely
on an unchallenged PSR when determining whether the
necessary qualifying convictions exist. See United States v.
Skidmore, 254 F.3d 635, 641 n.4 (7th Cir. 2001) (explaining
that “the PSR satisfied the government’s burden under 18
U.S.C. § 924(e)(1) to establish that [the defendant] had
three prior violent felony convictions” where the PSR was
unchallenged); United States v. Davenport, 986 F.2d 1047,
1048 (7th Cir. 1993) (finding no error where the court relied
on the PSR and did not consider charging documents while
sentencing under ACCA); United States v. Hudspeth, 42
F.3d 1015, 1019 n.6 (7th Cir. 1994) (en banc) (“A certified
record of conviction or a presentence investigation report, if
not challenged, will normally satisfy” the government’s
burden to show three prior violent felony convictions.)
(emphasis added) (citations omitted).
Even assuming reliance on the PSR was error, there is no
showing here that Thornton’s substantial rights have been
affected, and we see no reason to presume such prejudice
where its existence is easily discoverable by the defendant.
United States v. Olano, 507 U.S. 725, 735 (1993) (“Normally,
although perhaps not in every case, the defendant must
make a specific showing of prejudice to satisfy the ‘affecting
substantial rights’ prong of Rule 52(b).”). All Thornton
needed to do to show prejudice was retrieve the amended
criminal complaint from the 1990 burglary conviction. With
that document in hand, it would be easy for him to deter-
mine whether the PSR’s description of it was accurate. For
all we know, Thornton’s trial counsel may very well have
No. 05-1465 13
done this and concluded the PSR accurately recites Thorn-
ton’s conviction. Davenport, 986 F.2d at 1050 (positing that
it may be that “trial counsel obtained the charging papers,
recognized that they satisfy Taylor, and saw no point in
insisting that the record be padded with evidence adverse
to his client”).
Thornton’s third argument with regard to sentencing
under the ACCA is that even if we find no reversible error
in the district court’s reliance on the PSR, the information
therein is still insufficient to show that the 1990 burglary
conviction is a qualifying “violent felony.” See 18 U.S.C.
§ 924(e). It is undisputed that in 1990 Illinois had what
is called a “nongeneric” burglary statute. The distinctive
characteristic of a nongeneric burglary statute is that it
criminalizes unlawful entry into structures other than
buildings, such as cars, railroad cars, and boats. For
purposes of the ACCA, however, burglary is only a violent
felony if it is of the generic kind; that is, unlawful entry into
a building or other structure—boats or cars do not suffice.
Shepard v. United States, 544 U.S. 13, 15-16 (2005) (ex-
plaining that the ACCA “makes burglary a violent felony
only if committed in a building or enclosed space (‘generic
burglary’), not in a boat or motor vehicle.”).
The problem for courts applying the ACCA is what to do
with a conviction under a nongeneric burglary statute,
because it may be possible that the defendant was merely
convicted of burglarizing a car or boat and therefore not
subject to the enhancement. The Supreme Court initially
answered this question in the context of a conviction after
a jury trial, explaining that a court should determine
whether the relevant “charging paper and jury instructions
actually required the jury to find all the elements of generic
burglary in order to convict the defendant,” without delving
any further into the facts surrounding the conviction.
Taylor v. United States, 495 U.S. 575, 602 (1990). In
14 No. 05-1465
Shepard, the Court made clear this holding applies to guilty
pleas:
We hold that enquiry under the ACCA to determine
whether a plea of guilty to burglary defined by a
nongeneric statute necessarily admitted elements of the
generic offense is limited to the terms of the charging
document, the terms of a plea agreement or transcript
of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defen-
dant, or to some comparable judicial record of this
information.
544 U.S. at 26 (emphasis added). The PSR in this case
makes clear that Thornton pled guilty to an amended
charge that he “committed the offense of burglary (a Class
2 felony) in that without authority, he knowingly entered a
building of another, [name and address omitted], with the
intent to commit a theft.” The PSR’s specific reference to the
“amended criminal complaint” dispels any doubt about
whether it relies on proper sources. Cf. United States v.
Blake, 415 F.3d 625, 629-30 (7th Cir. 2005) (remanding with
instructions that the sentencing judge be sure the “court
records” referred to in the PSR complied with Shepard for
purposes of applying the ACCA). And the issues raised by
Illinois’s nongeneric burglary statute are obviated by the
charge’s specific allegation of the elements of generic
burglary. Taylor, 495 U.S. at 598 (defining generic burglary
as “an unlawful or unprivileged entry into, or remaining in,
a building or other structure, with intent to commit a
crime”) (citations omitted). Thornton’s plea of guilty to this
charge is sufficient to show that the 1990 burglary convic-
tion is a violent felony for purposes of the ACCA.
Finally, we reject Thornton’s argument that his sentence
is unreasonable. He was sentenced within the applicable
Guidelines’ range, which gives rise to a presumption that
his sentence is reasonable. United States v. Mykytiuk, 415
No. 05-1465 15
F.3d 606, 608 (7th Cir. 2005). Thornton’s nitpicking of the
judge’s explanation gets him nowhere, especially where he
raised no substantial argument for a sentence outside of the
Guidelines range. See United States v. Spano, 447 F.3d 517,
519 (7th Cir. 2006). Thornton’s sentence is within
a properly calculated Guidelines range and he has not made
a showing of unreasonableness. Id. at 519-20.
III. CONCLUSION
Accordingly, Thornton’s convictions and sentence are
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-06