00-3381 U.S. v. Thomas

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“All the court found was that Thomas was involved in the theft of Leal’s gun, and theft is not one of the predicate offenses listed in 18 U.S.C. sec.1111(a). Just as a court needs facts to support a finding of premeditation for ‘regular’ first degree murder, it needs facts to support a felony for first degree felony murder. Additionally, there is nothing in the record to suggest that the district court recognized that it had the option under Application Note 1 to sec. 2A1.1 to depart downward from life imprisonment. See Prevatte, 16 F.3d at 784-85 (holding that when felony murder provides the basis for the sentence enhancement, a district court’s failure to make findings as to the defendant’s mental state to determine if a departure down from life imprisonment required a remand). Therefore, the district court’s selection of first degree murder under a felony murder theory cannot stand.

“Here, at sentencing, the government was allowed to come in the back door, where there is a lower burden of proof and lower procedural safeguards, to essentially convict Thomas for Leal’s murder, when it could not get a murder conviction at trial due to the lack of evidence of premeditation and the absence of a predicate felony. And even under the lower standards, the district court failed to make sufficient findings regarding Thomas’s state of mind or commission of a predicate felony. Finally, even if Leal’s ‘death resulted’ from Thomas’s conduct, Thomas’s sentence must still be vacated and remanded because the court committed plain error in sentencing Thomas to life imprisonment without making sufficient findings.”

Vacated and remanded.

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Williams, J.