Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:99-CR-191--James T. Moody, Judge.
Before Easterbrook, Ripple, and Williams, Circuit Judges.
The opinion of the court was delivered by: Williams, Circuit Judge.
Leon Thomas was convicted by a jury of unlawful possession of a firearm as a convicted felon and for bartering a stolen firearm. Although each conviction carried a maximum sentence of ten years, Thomas was exposed to a sentence of no less than fifteen years on the possession conviction because of three prior felony convictions. The district court sentenced Thomas to life imprisonment, in part by cross-referencing the first degree murder guideline. Because we find that the district court's application of the homicide cross reference was not based on sufficient findings, we vacate and remand for resentencing.
On the morning of November 21, 1999, Thomas, a convicted felon, and Gerald Blunt went to the home of Michael Hutcherson. Thomas gave Hutcherson a semi-automatic pistol in exchange for thirty dollars' worth of rock cocaine. Later that day, police officers stopped Thomas and Blunt while Thomas was driving a Dodge automobile and he was arrested.
Before trial, the government notified Thomas that if he was convicted of the unlawful possession of a firearm as a convicted felon, it would seek to enhance his sentence for that offense to a term of imprisonment not less than fifteen years pursuant to 18 U.S.C. sec. 924(e)(1), based on Thomas's prior robbery convictions in Indiana and Georgia. Thomas stipulated at trial that he knew that the pistol had been stolen. The jury convicted him of unlawful possession of a firearm as a convicted felon in violation of 18 U.S.C. sec.sec. 922(g)(1), 924(a)(2), receiving a firearm while under indictment in violation of 18 U.S.C. sec.sec. 922(n), 924(a)(1), and bartering a stolen firearm under 18 U.S.C. sec.sec. 922(j), 924(a)(2). The conviction for receiving a firearm while under indictment was subsequently vacated.
At sentencing, the government tried to connect Thomas to the murder of the firearm's owner, Armondo Leal. It presented evidence that the night before Thomas pawned Leal's pistol, Leal was shot to death in the Dodge car that Thomas was found driving. The gun used in the murder was never recovered. A bullet hole was found in the lower-front passenger door of the car and Leal's blood was found on the driver's seat of the car. Leal's blood was also on the pavement of Thomas's driveway and on Thomas's shirt. The government surmises that the bloodstains were found in those locations because Leal was taken out of the car and laid temporarily in Thomas's driveway and Thomas got into the car after Leal was shot but before the blood dried.
The government also presented evidence through the testimony of Detective Titus that an unidentified neighbor of Thomas's told Detective Jackson that on the night of the murder, he saw Leal driving the Dodge car in the vicinity of Thomas's home. The neighbor stated that he heard gun shots and shortly thereafter saw Thomas driving away in the same car. Detective Titus further testified that on the night of Thomas's arrest, Thomas's uncle was murdered and Thomas's house was set on fire. These crimes were done, in his opinion, in retaliation for Leal's murder.
Based on this evidence, the district court concluded, "Whether [Thomas] pulled the trigger or not, the Court finds that it's pretty clear that he was involved in the killing of Armondo Leal, and the theft of Mr. Leal's gun." The court then adopted the recommendations of the Presentence Investigation Report ("PSR"), and cross-referenced Thomas's conviction for possession of a firearm while a felon with the homicide guideline for first degree murder, sec. 2A1.1. The court also considered Thomas's prior convictions and determined that Thomas was an armed career criminal under 18 U.S.C. sec. 924(e)(1). The court then sentenced Thomas to life imprisonment for his conviction for unlawful possession of a firearm as a convicted felon, and to a concurrent ten-year sentence for bartering a stolen firearm.*fn1
On appeal, Thomas challenges the district court's: 1) admission of hearsay testimony of an unidentified witness; 2) cross-referencing of his conviction for unlawful possession of a firearm as a convicted felon with the homicide guideline for first degree murder; 3) enhancement of his sentence for prior convictions when he was not indicted or convicted by the jury under the Armed Career Criminal Statute, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and 4) use of the homicide cross-reference to increase his sentence above the statutory maximum for the offenses of conviction without being charged and proved beyond a reasonable doubt at trial, also in violation of Apprendi. Because we prefer to dispose of cases on factual grounds rather than on constitutional ones, see United States v. Westmoreland, 240 F.3d 618, 629 (7th Cir. 2001), we proceed to Thomas's factual challenges first.
Thomas's first argument challenges the admission of hearsay testimony, which was used to establish Thomas's involvement in Leal's murder. Hearsay is permitted at sentencing as long as it is reliable and the defendant is afforded an opportunity to rebut the evidence. United States v. Corbin, 998 F.2d 1377, 1385 (7th Cir. 1993); United States v. Beal, 960 F.2d 629, 634 (7th Cir. 1992) (applying same standard to hearsay within hearsay testimony). ...