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Precedential or Non-Precedential: Non-Precedential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                                                            NOT PRECEDENTIAL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, 

(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, 

, 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


                                             2
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, 

, 246 (3d Cir. 2005) (quoting United States v. Booker,

, 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, 

, 864 (3d Cir. 1992). Career offenders receive

Guideline ranges at or near the maximum allowed for their crimes. See 

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. 

; 

. Police reports

do not constitute adequate judicial record evidence of the facts underlying a prior

conviction. 

.

       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.