United States of America v. Krothopis Thompson

United States Court of Appeals
For the Eighth Circuit
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No. 11-3076
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Krothopis Thompson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: June 11, 2012
Filed: August 8, 2012
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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
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MELLOY, Circuit Judge.
Defendant Krothopis Thompson appeals the sentence he received after pleading
guilty to one count of possessing with intent to distribute five grams or more of a
mixture or substance containing a detectable amount of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B). He committed his offense prior to passage of
the Fair Sentencing Act of 2010, 124 Stat. 2372 ("the Act"), but was indicted, pleaded
guilty, and was sentenced after the Act's passage. He argued at sentencing that he

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should be sentenced in accordance with the Act and that his advisory Guidelines range
should be 37 to 46 months' imprisonment with no mandatory minimum. The district
court, following our precedent, United States v. Sidney, 648 F.3d 904, 910 (8th Cir.
2011), held the Act did not apply to Thompson. As such, the court imposed a 60-
month mandatory minimum term of incarceration and a 4-year mandatory minimum
term of supervised release.
The court held in the alternative that, even if the Supreme Court were to
determine the Act applied to defendants in Thompson's position, the court would vary
upward from the lower advisory Guidelines range and impose the same 60-month
term of incarceration based upon the factors of 18 U.S.C. § 3553(a). The court
provided an explanation of why it believed the alternative term of incarceration to be
appropriate even under the Act. The court made no comment regarding an alternative
term of supervised release.
Subsequent to Thompson's sentencing, the Supreme Court abrogated our
precedent, finding the Act applicable to defendants in Thompson's position. See
Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012) (holding that the Act applies
where the defendant committed the crime before, but was sentenced after, the Act
went into effect). We have recognized this abrogation. See United States v. Gamble,
683 F.3d 932, 933 (8th Cir. 2012). Accordingly, we must review Thompson's
alternative sentence. Thompson argues the district court erred by failing to adequately
explain the alternative sentence, failing to provide notice of an intent to vary, failing
to provide opportunity to argue against a variance, and imposing a substantively
unreasonable sentence.
We affirm as to the imposition of the alternative 60-month term of incarceration
which is neither unreasonable nor unsupported by adequate explanation. In discussing
the alternative term of incarceration, the district court stated:
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I would say that even if it should be found in the future that the Court
should have applied retroactively the Fair Sentencing Act of 2010, I
would still find that a sentence of 60 months is the sentence that is
sufficient but not greater than necessary to achieve the goals of
sentencing for the following reasons: He has several unscored criminal
history points . . . which indicates that his criminal history score of III
does not take into consideration all of his criminal history. I would also
note the aggravating factor in this case where he's in a motor vehicle
with a 7-year-old child with a load of dope. And I think all of those are
aggravating factors sufficient to justify a 60-month sentence, even if it
were not the mandatory minimum.
Our precedent requires that, when pronouncing an alternative sentence in
anticipation of a possible error or retroactive change in the governing legal
framework, a sentencing court must "identif[y] the contested issue and potentially
erroneous ruling, set[] forth an alternative holding supported by the law and the record
in the case, and adequately explain[] its alternative holding." United States v. Sayles,
674 F.3d 1069, 1072 (8th Cir. 2012). Here, the district court's discussion of the
reasons for its alternative sentence satisfy these requirements. In addition, we have
rejected the notice-type arguments Thompson raises in the context of variances.
See United States v. Foy, 617 F.3d 1029, 1035 (8th Cir. 2010) (stating district courts
are not required to provide advance notice of their intent to vary upwardly). 1
1Nothing about this general rule concerning notice should discourage the
cautionary provision of such notice. As we recognized in Foy:
The Supreme Court has recognized that "there will be some cases in
which the factual basis for a particular sentence will come as a surprise
to a defendant or the Government." In those cases, "[t]he more
appropriate response" is for the district court "to consider granting a
continuance when a party has a legitimate basis for claiming that the
surprise was prejudicial."
617 F.3d at 1035 (quoting Irizarry v. United States, 553 U.S. 708, 715–16 (2008)).
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We reverse and remand, however, for reconsideration of the term of supervised
release. Supervised release is an important part of a criminal sentence. See, e.g.,
United States v. Nicklas, 623 F.3d 1175, 1179 (8th Cir. 2010) ("'[A] period of
supervised release . . . might be especially important in circumstances . . . where [a
defendant's] failure to recognize the seriousness of her conduct suggests that she may
pose a substantial threat of reoffending if set free.'" (quoting United States v. White,
620 F.3d 401, 430 (4th Cir. 2010) (Niemeyer, J., dissenting))). Like an alternative
term of incarceration, an alternative term of supervised release requires express
explanation on the record of its propriety both with and without the anticipated and
underlying change in the legal landscape.
We affirm in part, reverse in part, and remand for further proceedings not
inconsistent with this opinion.
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