United States v. Kevin Thoma ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2282
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Kevin N. Thomas, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 11, 2010
Filed: March 24, 2010
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Before LOKEN, Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
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PER CURIAM.
On remand for resentencing, Kevin Thomas was sentenced to 110 months’
imprisonment. He appeals, arguing that the district court1 erred in determining that
his state burglary conviction constituted a crime of violence within the meaning of
U.S. Sentencing Guideline Manual § 4B1.2. We affirm.
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
Thomas was convicted of one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one count of possessing a
firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and
922(a)(1)(B). Thomas was sentenced to 120 months’ imprisonment on the felon-in-
possession charge and 48 months’ imprisonment on the obliterated serial number
charge. The sentences were ordered to run consecutively, resulting in a 168-month
term of imprisonment. In calculating the sentence, the district court concluded that
Thomas had two convictions that constituted crimes of violence under guideline §
4B1.2: (1) a 1991 Missouri state first-degree tampering conviction, based upon his
unlawful operation of a motor vehicle without the owner’s consent, and (2) a 1993
Missouri state second-degree burglary conviction, based upon his burglary of a
school. See United States v. Thomas, 484 F.3d 542, 545 (8th Cir. 2007).
After his sentence had been affirmed, the United States Supreme Court granted
Thomas’s petition for certiorari, vacated our judgment, and remanded the case to us
for reconsideration in light of Begay v. United States, 553 U.S. 137 (2008). Thomas
v. United States, 128 S. Ct. 2046 (2008). We vacated Thomas’s sentence and
remanded the case to the district court for resentencing in light of United States v.
Williams, 537 F.3d 969, 974-75 (8th Cir. 2008), which held that the Missouri crime
of tampering does not qualify as a crime of violence for purposes of guideline §
2K2.1(a)(2). United States v. Thomas, 300 Fed. Appx. 447 (8th Cir. 2008)
(unpublished per curiam).
On remand, the district court recalculated Thomas’s sentencing range, reducing
the total offense level by four, based on one felony conviction of a crime of violence.
Compare U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (base offense level of 24
for two felony convictions of crimes of violence) with § 2K2.1(a)(4) (base offense
level of 20 for one felony conviction of a crime of violence). See generally § 2K2.1
cmt. n.1 (“‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and
Application Note 1 of the Commentary to § 4B1.2.”). The recalculated advisory
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guideline sentencing range for the felon-in-possession charge was 110 to 137 months’
imprisonment, and the sentencing range on the obliterated serial number charge
remained 48 months’ imprisonment. After considering the factors set forth in 18
U.S.C. § 3553(a), the district court determined that a sentence of 110 months’
imprisonment was sufficient but not greater than necessary to comply with the
purposes of the statute, the nature and circumstances of the offense, and the history
and characteristics of the defendant. The district court ordered the sentences to run
concurrently, thus resulting in a 110-month term of imprisonment. During the
sentencing hearing, Thomas objected to the base offense level calculation because it
included his state burglary conviction as a crime of violence.
Thomas raises the same issue on appeal, but the scope of our remand was
limited to permit resentencing in light of our holding that tampering does not qualify
as a crime of violence. See United States v. Walterman, 408 F.3d 1084, 1085 (8th Cir.
2005) (“Where a remand is limited to the resolution of specific issues, those issues
outside the scope of the remand are generally not available for consideration.”). Even
if we reached the merits of the appeal, Thomas’s argument fails because burglary of
a nonresidential building constitutes a crime of violence. See United States v. Oman,
427 F.3d 1070, 1076-77 (8th Cir. 2005) (holding that the crime of aiding and abetting
the burglary of a nonresidential building was a crime of violence under guideline §
4B1.2(a)); see also United States v. Owens , No. 09-1829, WL 681307, at *1 (8th Cir.
March 1, 2010) (noting that generic burglaries include burglaries of non-residential
buildings and that we have consistently held that those burglaries qualify as crimes of
violence under the “otherwise involves” clause of § 4B1.2(a)(2)); United States v.
Cantrell, 530 F.3d 684, 694-96 (8th Cir. 2008) (holding that defendant’s conviction
under Missouri state law for second-degree burglary constituted a crime of violence
under the “otherwise involves” clause of § 4B1.2(a)).
The sentence is affirmed.
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