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United States v. Thompson

United States District Court, W.D. Louisiana, Shreveport Division

February 27, 2019

UNITED STATES OF AMERICA
v.
JERRY KENNETH THOMPSON

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE JUDGE

         Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.SG. § 2255 filed byjerry Kenneth Thompson ("Thompson"). [Record Document 39]. Because this Court's upward departure to the statutory maximum comported with Rule 32(h) of the Federal Rules of Criminal Procedure and the sentence did not violate Thompson's due process rights, the motion is DENIED.

         BACKGROUND

         Thompson, a convicted felon, was caught in possession of a shotgun while hunting; he claimed the gun belong to a cousin. [Record Document 36 at 7, 12]. When the state district attorney elected not to pursue charges, the state's agents returned the gun to Thompson on the understanding that he would relinquish possession to his cousin. [Id. at 7]. After further investigation revealed that he had not done so, the Government pressed charges. [Id. at 4, 8]. Thompson pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). [Record Document 25]. The presentence report ("PSR") determined that his base offense level was 24, which was then reduced by three points for his acceptance of responsibility. [Record Document 33 at 5]. The Probation Office identified 26 prior convictions, which produced a total of 25 criminal history points and placed Thompson in Category VI of the Sentencing Table. [Id. at 15]. The resulting Guidelines range was 77 months to 96 months imprisonment. [Id. at 22].

         The Probation Office specifically identified U.S.S.G. § 4A1.3 as a basis for an upward departure. [Id. at 23]. Such a departure is allowed when "reliable information indicates that the defendant's criminal history category substantially underrepresents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes." U.S.S.G. § 4A1.3(a)(1). In support of the departure, the PSR noted:

In this case, the defendant has a lengthy criminal history, with twenty-six prior convictions including violent, theft, traffic, and drug-related offenses. He also has significant prior similar conduct, not resulting in convictions. The defendant's criminal history spans the last twenty-five years. Thompson's repetitive criminal behavior and failure to appear to answer charges represents a callous disregard for the constitutional authority of our justice system. The revocation record indicates Thompson has not been successful, even under supervision.

[Record Document 33 at 23].

         At the sentencing hearing, Thompson confirmed that he had reviewed the PSR with his attorney and stated that he had no objections. [Record Document 35 at 2-3]. After adopting the factual findings of the PSR, this Court sentenced Thompson to the statutory maximum term of 120 months, pointing specifically to his lengthy and underrepresented criminal history to justify the upward departure. [Id. at 8-9].

         Thompson appealed. [RecordDocument 34]. His attorney filed an A&rxbrief to which Thompson responded. [Record Documents 47-1 and 47-2]. In his response, he asserted that his is also unnecessary if the issues were raised on direct appeal or do not describe constitutional violations. United States v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (citing Buckekw v. United States, 575 F.2d 515 (5th Cir. 1978)).

         This Court's Alleged Violation of Rule 32(h)

         Thompson alleges that this Court violated Rule 32(h) of the Federal Rules of Criminal Procedure. [Record Document 39 at 4-6]. Under that rule:

Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's preheating submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.

Fed. R. Crim. P. 32(h). Although this Court did not provide Thompson with advance notice of the upward departure, the PSR did. [Record Document 33 at 23-24]. Because the PSRidentitied the grounds on which this Court departed upward (i.e., underrepresented criminal history), Rule 32(h) ...


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