Appeal from a judgment of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) sentencing Defendant-Appellant Garfield Thomas principally to fifty-seven months in prison following his guilty plea to being a felon in possession of a firearm.
The opinion of the court was delivered by: Straub, Circuit Judge:
Argued: November 17, 2010
Before JACOBS, Chief Judge, KEARSE AND STRAUB, Circuit Judges.
On appeal, Thomas challenges the strict liability nature of the stolen firearm enhancement of the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(4)(A). We reaffirm the continuing validity of our holding in United States v. Griffiths, 41 F.3d 844 (2d Cir. 1994), cert. denied, 514 U.S. 1056 (1995), that the lack of a scienter requirement in the enhancement is permissible. We also hold that a rational basis exists to support the Guidelines' differential treatment of stolen explosives and stolen firearms such that U.S.S.G. § 2K2.1(b)(4)(A) does not violate equal protection.
Defendant-Appellant Garfield Thomas was sentenced principally to fifty-seven months in prison following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Thomas challenges the reasonableness of his sentence, arguing that the District Court procedurally erred by including in Thomas's applicable sentencing range under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") the two-level enhancement of § 2K2.1(b)(4)(A), which applies to certain firearms charges in which the firearm was stolen, regardless of whether the defendant knew that it was stolen. Thomas argues that the lack of a mens rea element renders the enhancement invalid on its face and violative of equal protection when compared to the Guidelines' two-level enhancement for offenses involving stolen explosives only when the defendant "knew or had reason to believe" that the explosives were stolen. U.S.S.G. § 2K1.3(b)(2). Further, Thomas argues that even if the stolen firearm enhancement was properly applied, the District Court failed to recognize its discretionary power to vary from that provision and did not give due consideration to his policy based arguments.
We reaffirm the continuing validity of our holding in United States v. Griffiths, 41 F.3d 844 (2d Cir. 1994), cert. denied, 514 U.S. 1056 (1995), that the lack of a scienter requirement in the stolen firearm enhancement is permissible. We also hold that a rational basis exists to support the Guidelines' differential treatment of stolen explosives and stolen firearms such that U.S.S.G. § 2K2.1(b)(4)(A) does not violate equal protection. Finding no indication that the District Court misunderstood its discretionary powers or ignored Thomas's arguments, we affirm the judgment of conviction.
On November 5, 2008, a bystander was struck during a shooting outside of a nightclub in the Bronx. An eyewitness identified Thomas as the shooter and Thomas was arrested a few days later. Upon his arrest, Thomas possessed a semi-automatic pistol as well as a number of rounds of ammunition. Ballistics evidence later linked that pistol to the shooting. As Thomas had previously been convicted of a felony drug crime -- an offense for which he remained on supervised release -- he was charged in the United States District Court for the Southern District of New York with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Thomas pled guilty without a plea agreement on June 18, 2009. His presentence report ("PSR") estimated a Guidelines sentencing range of fifty-seven to seventy-one months based on a Criminal History Category of III and an offense level of twenty-three. With respect to the offense level, the PSR identified a base of twenty pursuant to U.S.S.G. § 2K2.1(a), with a four-level enhancement because the firearm was used in connection with another felony (the shooting), § 2K2.1(b)(6), and anticipated a three-level reduction for acceptance of responsibility, § 3E1.1. Additionally, because the firearm had been reported stolen in Virginia, the PSR applied the two-level stolen firearm enhancement of § 2K2.1(b)(4)(A).
Thomas objected, both in writing and during his sentencing proceeding, to application of the stolen firearm enhancement. Through counsel, Thomas maintained that he did not know that the gun in his possession was stolen; rather, he explained that he obtained the firearm from an individual with whom he was sharing an apartment and had "no idea where the gun came from other than [that] he got it from this individual." Given his ignorance of the gun's status, Thomas urged the court to reject the strict liability nature of the enhancement. Conceding "Second Circuit precedent against" him, Thomas contended that the precedent has been impaired by United States v. Booker, 543 U.S. 220 (2005), and related cases, and should be revisited.
In response, the District Court noted that it did not "follow the logic" of Thomas's argument for, "in a post-Booker world, in which . . . the guidelines are advisory only and the Court's discretion is greater, it would seem . . . to follow that the pre-Booker law would be even stronger today, not weaker." Since the enhancement "is a sentencing factor, . . . not an element of the offense," the court concluded that its authority to apply the enhancement "in a post-Booker world remains just as viable." Accordingly, the court declined Thomas's invitation to invalidate or otherwise depart from U.S.S.G. § 2K2.1(b)(4)(A). Stating that it "intend[ed] to follow the Second Circuit on this," the court adopted the PSR's Guidelines calculation, and ...