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United States v. Thorne

United States Court of Appeals, Eighth Circuit

July 20, 2018

United States of America Plaintiff- Appellee
Billy D. Thorne Defendant-Appellant

          Submitted: January 10, 2018

          Appeal from United States District Court for the Northern District of Iowa - Ft. Dodge

          Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

          PER CURIAM.

         This case returns to us after a resentencing on remand. Billy D. Thorne was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On remand, the district court[1] sentenced him to the statutory maximum of 120 months' imprisonment, applying an upward variance of 83 months from the high end of the Guidelines range. Thorne now challenges that sentence as substantively unreasonable. We affirm.

         I. Background

         In July 2012, Thorne obtained a gun in Mason City, Iowa, and threatened to kill his son and his son's girlfriend. Thorne was prosecuted by Iowa state authorities and later convicted of first-degree harassment, in violation of Iowa Code § 708.7(2). In December 2013, Thorne was indicted in the Northern District of Iowa for being a felon in possession of a firearm. A jury found him guilty in April 2014. At sentencing, the district court determined that Thorne was an armed career criminal (ACC) and sentenced him to 262 months' imprisonment. See 18 U.S.C. § 924(e)(1). The court used Thorne's prior burglary convictions from Florida as predicate offenses for its ACC finding. Thorne appealed. Following the government's concession that the Florida second degree burglary convictions that formed the basis of Thorne's ACC status did not qualify as violent felonies, we remanded for resentencing. United States v. Thorne, 837 F.3d 888, 889 (8th Cir. 2016) (per curiam).

         At resentencing, the presentence investigation report (PSR) set Thorne's total offense level at 18. This included a four-level enhancement for using the firearm in connection with another felony. See U.S.S.G. § 2K2.1(b)(6)(B).[2] The PSR also listed 18 criminal convictions. Six of those convictions occurred on March 5, 1997, and were based on a string of burglaries Thorne committed in Florida in August and September 1996. Thorne was imprisoned for those offenses until 2012. This enabled them to be assigned criminal history points. See U.S.S.G. § 4A1.2(e). However, despite their numerosity, because each conviction had the same date of arrest and date of sentencing, they only caused Thorne to be assessed three criminal history points. See U.S.S.G. § 4A1.2(a)(2). His resulting criminal history category was II. Combined with his total offense level of 18, Thorne's Guidelines range was 30 to 37 months' imprisonment. He faced a statutory maximum of ten years' imprisonment. See 18 U.S.C. §§ 922(g)(1) & 924(a)(2).

         The government requested an upward variance to 120 months' imprisonment. It argued that the Guidelines range inadequately accounted for Thorne's criminal history. It also argued that the sentence needed to address the seriousness of the offense, to afford adequate deterrence to criminal conduct, and to protect the public.

         Thorne argued that a Guidelines sentence was appropriate. He claimed that the burglaries were over 20 years old and that several of his other convictions were even older. Thorne noted that all the Florida burglaries occurred in a short period of time and that he had served a lengthy sentence for them. He also argued that health issues; problems with drugs; and his age (he was 60 years old on the date of resentencing) warranted the court's consideration. Additionally, he asked the court to credit him for a drug program he had participated in since his initial sentencing.

         The court stated that it had considered all of the sentencing factors under 18 U.S.C. § 3553(a) and concluded that "the nature and circumstances of the offense and the history and characteristics of the defendant cry out for a variance upward to 10 years. I find he is a danger to the community. I find he is at high risk to recidivate." Transcript of Sentencing Hearing at 21-22, United States v. Thorne, No. 3:13-cr-03052-LRR (N.D. Iowa Feb. 2, 2017), ECF No. 129. The court held that any mitigating factors, such as his health, age, and background, were outweighed by aggravating factors. The court then sentenced Thorne to 120 months' imprisonment.

         II. Discussion

         On appeal, Thorne argues that the district court misweighed the factors, rendering his sentence substantively unreasonable. He argues that the court gave insufficient weight to certain factors he presented at sentencing: namely, his drug history, his health issues, and his post-incarceration self-improvement efforts. Our review of a sentence typically begins by determining whether the district court committed a significant procedural error. See United States v. Williams, 624 F.3d 889, 896 (8th Cir. 2010) (citation omitted). However, when no procedural error is alleged, we may "bypass the first part of our review and move directly to review the substantive reasonableness of [the] sentence." United States v. Franik, 687 F.3d 988, 990 (8th Cir. 2012) (quoting United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011). We

"consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Gall [v. United States, 552 U.S. 38, 51, (2007)]. In conducting this review, we are to "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. If the defendant's sentence is within the Guidelines range, then we "may, but [are] not required to, apply a presumption of reasonableness." Id. But we are not permitted to apply a presumption of unreasonableness if the sentence is outside the Guidelines range. Id. Instead, we "may consider the extent of the deviation, but must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Id. We may not require "'extraordinary' circumstances to justify a sentence outside the Guidelines" and are prohibited from "the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required ...

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