United States of America v. Ira Lee Thorpe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4577
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
IRA LEE THORPE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00407-WO-1)
Submitted: February 9, 2017 Decided: March 1, 2017
Before TRAXLER, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ira Lee Thorpe pled guilty, pursuant to a written plea
agreement, to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2012). The district court sentenced Thorpe to 24 months and 1
day of imprisonment, and he now appeals. Appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning whether Thorpe’s sentence is procedurally
unreasonable because the district court denied Thorpe “an
effective right of allocution.” Thorpe has filed a pro se
supplemental brief contending that his conviction violates both
the Second Amendment as applied to him and due process. We
affirm.
Counsel argues that Thorpe’s “effective right to
allocution” was violated when the district court questioned
Thorpe during allocution and then penalized Thorpe for his
answers when imposing sentence. Because Thorpe did not raise
this objection in the district court, we review for plain error.
See United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.
2007). To establish plain error, Thorpe must demonstrate that
(1) the district court committed an error; (2) the error was
plain; (3) the error affected his substantial rights; and
(4) the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Puckett v. United

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States, 556 U.S. 129, 135 (2009) (internal quotation marks
omitted).
“Before imposing sentence, the court must . . . address the
defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.” Fed. R.
Crim. P. 32(i)(4)(A)(ii). A court may interrupt a defendant’s
allocution to ask questions so long as there is no indication
that the court is attempting to terminate the allocution and the
defendant is given ample opportunity to speak to mitigating
factors. See United States v. Covington, 681 F.3d 908, 910 (7th
Cir. 2012); cf. United States v. Li, 115 F.3d 125, 133-34 (2d
Cir. 1997) (holding that defendant was denied opportunity for
“meaningful” allocution). Furthermore, a court may increase a
defendant’s sentence based on comments made during allocution if
the comments are relevant to the 18 U.S.C. § 3553(a) (2012)
analysis. See United States v. Smith, 424 F.3d 992, 1016-17
(9th Cir. 2005); United States v. Burgos-Andujar, 275 F.3d 23,
30-31 (1st Cir. 2001); Li, 115 F.3d at 134-35.
Although the district court often interrupted Thorpe’s
allocution to question him and referenced Thorpe’s answers in
setting the downward variance sentence, we discern no error.
The district court properly noted that some of Thorpe’s
responses could be viewed as minimizing his acceptance of
responsibility and others were of questionable veracity. We

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conclude that the district court permissibly assessed the
credibility of Thorpe’s comments during allocution and
appropriately considered those statements in fashioning Thorpe’s
sentence under § 3553(a).
Thorpe also argues that his conviction violates the Second
Amendment as applied to him because his felony drug convictions
are over 20 years old and he does not have a history of violent
conduct. Thorpe’s contention is likely waived by his guilty
plea. See United States v. Fitzgerald, 820 F.3d 107, 110 (4th
Cir. 2016) (recognizing that “when a defendant pleads guilty, he
waives all nonjurisdictional defects in the proceedings
conducted prior to entry of the plea” (alterations and internal
quotation marks omitted)); United States v. Seay, 620 F.3d 919,
922 n.3 (8th Cir. 2010) (holding as-applied Second Amendment
challenge to § 922(g) was not jurisdictional claim); United
States v. Fox, 573 F.3d 1050, 1052 n.1 (10th Cir. 2009) (same).
Even assuming Thorpe’s claim survives his guilty plea, we
conclude that the claim lacks merit. Although we have left open
the possibility of a successful as-applied challenge to
§ 922(g)(1), United States v. Moore, 666 F.3d 313, 320 (4th Cir.
2012), given Thorpe’s criminal history, he cannot meet the
“law-abiding responsible citizen requirement.” United States v.
Pruess, 703 F.3d 242, 246 (4th Cir. 2012) (internal quotation
marks omitted).

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Lastly, Thorpe avers that his conviction violates his “due
process reliance interests.” When Thorpe pled guilty in North
Carolina state court to the felony drug offenses that served as
the predicates for the instant conviction, state law prohibited
Thorpe from possessing firearms for five years after his release
from state custody. Before Thorpe reached the five-year
threshold, the North Carolina General Assembly amended the
restoration of rights statute, N.C. Gen. Stat. § 14-415.1
(1995), to permanently ban convicted felons from possessing
certain firearms.
Like Thorpe’s Second Amendment claim, his due process claim
was likely waived when he pled guilty. See Fitzgerald, 820 F.3d
at 110. Notwithstanding, we conclude that Thorpe’s argument
fails on the merits. Because Thorpe’s right to possess firearms
was never restored, his state court convictions are proper
predicates under § 922(g)(1). See 18 U.S.C. § 921(a)(20)
(2012). Furthermore, Thorpe cites no authority for the
proposition that a felon retains a due process interest in the
right to bear arms under either the Second or Fourteenth
Amendment. See Johnston v. State, 735 S.E.2d 859, 876 (N.C. Ct.
App. 2012) (“No federal or State case has held that a convicted
felon enjoys a liberty interest to bear arms under the
Fourteenth Amendment.”). For these reasons, Thorpe’s due
process claim fails.

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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Thorpe, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Thorpe requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Thorpe.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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