United States of America v. Isaiah Thomas

United States Court of Appeals
For the Eighth Circuit
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No. 24-1101
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United States of America
Plaintiff - Appellee
v.
Isaiah Thomas
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: November 18, 2024
Filed: February 11, 2025
[Unpublished]
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Before SHEPHERD, ARNOLD, and ERICKSON, Circuit Judges.
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PER CURIAM.
Isaiah Thomas pled guilty to being a felon in possession of a firearm. The
district court sentenced him to 105 months’ imprisonment and a three-year term of
supervised release. Thomas appeals his sentence, arguing that the district court
plainly erred by applying United States Sentencing Guideline (USSG) § 2K2.1(a)(3)
to calculate his base offense level. Having jurisdiction under 28 U.S.C. § 1291, and

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in light of Government’s submissions on appeal, we vacate Thomas’s sentence and
remand to the district court for resentencing.
I.
In April 2023, an off-duty police officer with the North Little Rock Police
Department spotted Thomas getting out of a car at a Walmart Supercenter in North
Little Rock, Arkansas. The officer knew that Thomas had an outstanding warrant
due to an unauthorized departure from the halfway house where Thomas had been
staying after his recent release from prison. The officer approached Thomas’s car
and placed Thomas under arrest. A search of Thomas’s car uncovered a backpack
on the front passenger floorboard, which contained over 25 grams of marijuana,
along with an extended magazine with 18 rounds of 9mm ammunition. Underneath
that passenger seat, officers also discovered a Glock 48 9mm pistol with 9 rounds in
the magazine and 1 round in the chamber. Thereafter, Thomas was indicted on and
pled guilty to one count of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1).
At Thomas’s sentencing hearing, the United States Probation Office prepared
a Presentence Investigation Report (PSR), which included a description of Thomas’s
conduct and a preliminary calculation of Thomas’s Guidelines range. The PSR
calculated a base offense level of 22 by applying USSG § 2K2.1(a)(3), as the offense
involved “a semiautomatic firearm capable of accepting a large capacity magazine.”1
With a resulting total offense level of 24, accompanied by a criminal history category
1 Guideline 2K2.1(a)(3) also requires the defendant to have “committed any
part of the instant offense subsequent to sustaining one felony conviction of . . . a
crime of violence.” Thomas argues for the first time on appeal that his prior
conviction—a 2017 Arkansas state court conviction for robbery, in violation of Ark.
Code. Ann. § 5-12-102(a)—is not categorically a crime of violence under the
Sentencing Guidelines and thus could not qualify as a predicate offense or result in
an additional point on his criminal history score. See USSG § 4A1.1(b), (d).
Because we vacate and remand based on the “large capacity magazine” issue, we do
not reach his second argument.

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of IV, the PSR calculated a Guidelines range of 77 to 96 months’ imprisonment.
Thomas did not raise any objections. Adopting the PSR, the district court varied
upward and sentenced Thomas to 105 months’ imprisonment to be followed by a
three-year term of supervised release. Thomas timely appealed.
II.
Because Thomas did not object to the PSR or its Guideline calculations, we
review his arguments for plain error. United States v. Combs, 44 F.4th 815, 818 (8th
Cir. 2022) (per curiam). Accordingly, Thomas must demonstrate that the district
court committed an error that was “clear or obvious” and “affected [his] substantial
rights.” Id. (alteration in original) (quoting Molina-Martinez v. United States, 578
U.S. 189, 194 (2016)). Upon such a showing, we may correct the error only if it
“seriously affects the fairness, integrity[,] or public reputation of judicial
proceedings.” Id. (alteration in original) (citation omitted).
Thomas argues that the district court plainly erred in finding that the Glock 9
mm pistol was capable of accepting a large capacity magazine and thus applying the
§ 2K2.1(a)(3) enhancement. According to Thomas, the PSR applied § 2K2.1(a)(3)
based merely on the proximity between the two in Thomas’s car. The comments to
the Sentencing Guidelines explain that such capability can be inferred when a large
capacity magazine is found “in close proximity to the firearm.” USSG § 2K2.1, cmt.
n.2. That being said, some courts have held that proximity alone “does not supplant
compatibility; the magazine must actually fit.” United States v. Luna-Gonzalez, 34
F.4th 479, 481 (5th Cir. 2022). In Thomas’s view, because the PSR only stated that
the magazine and firearm were found near each other and the Government did not
present any evidence—testimonial or otherwise—that the firearm was actually
capable of accepting the magazine, the district court plainly erred in relying on the
PSR to apply the § 2K2.1(a)(3) enhancement. See also United States v. Romero,
No. 21-50485, 2022 WL 3584873 at *1-2 (5th Cir. Aug. 22, 2022) (per curiam)
(finding plain error where Government “did not set forth any additional facts” in the
PSR beyond the magazine’s proximity to the firearm); United States v. Garza, No.

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22-20338, 2023 WL 3918993 at *5 (5th Cir. June 9, 2023) (per curiam) (finding
plain error and rejecting unsworn statement that firearm was capable of accepting
large capacity magazine).
The Government responds that Thomas’s failure to object to the PSR dooms
his argument. It is true that when a defendant “does not object to facts set forth in
the [PSR], then the district court may accept those facts as true for purposes of
sentencing.” United States v. Reid, 827 F.3d 797, 801 (8th Cir. 2016). The problem
with the Government’s contention, however, is that the statement of facts in the PSR
did not state that the firearm was actually capable of accepting the magazine. In
contrast to cases where the offense conduct section in the PSR specifically includes
that fact or where a record developed at trial contains evidence supporting that
conclusion, see, e.g., id. (noting that the PSR “stat[ed] that the [firearm] could accept
a large capacity magazine” and that “abundant evidence [from the trial record] . . .
show[ed] that the [firearm] was . . . capable of accepting a large capacity magazine”),
the unobjected-to facts in the PSR only establish that “officers located . . . an
extended magazine containing 18 9mm rounds [and a] Glock, model 48, 9mm pistol”
on the front passenger floorboard of Thomas’s vehicle. Even accepting the facts as
adopted by the district court, the offense conduct section in the PSR does not state
that the firearm was actually capable of accepting the magazine.
Though the Government points to numerous cases where we have upheld the
application of § 2K2.1(a)(3), all of these cases included some additional facts to
support applying the enhancement. See, e.g., United States v. Davis, 668 F.3d 576,
576-77 (8th Cir. 2012) (upholding application where officer testified that firearm
“will accept that [large capacity] magazine”); United States v. Torres, 489 F. App’x
968, 969-70 (8th Cir. 2012) (per curiam) (upholding application when “officer
testified that [firearm] could be . . . fitted with the large capacity magazine in two to
three minutes”). Absent that supporting evidence, however, the offense conduct
description in the PSR must state that the firearm was actually capable of accepting
large capacity magazine to justify applying § 2K2.1(a)(3). See Romero, 2022 WL
3584873 at *2 (noting that statements of proximity alone are insufficient to prove

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compatibility). Because the PSR does not include that statement here, Thomas has
demonstrated a plain error warranting vacatur. See Molina-Martinez, 578 U.S. at
201 (noting that sentencing based on incorrect guidelines calculation will affect a
defendant’s substantial rights “[a]bsent unusual circumstances”); Rosales-Mireles v.
United States, 585 U.S. 129, 145 (2018) (“In the ordinary case, . . . the failure to
correct a plain Guidelines error that affects a defendant’s substantial rights will
seriously affect the fairness, integrity, and public reputation of judicial
proceedings.”).
We note the Government’s concern that Thomas is seeking relief through an
argument he did not raise below. Further, the Government submits that it would
have presented testimony and evidence consistent with the PSR had Thomas
objected, and that such evidence would be sufficient for the court to find by a
preponderance of the evidence that the elevated base offense level applied. Appellee
Br. 15. Nevertheless, we vacate Thomas’s sentence and remand to the district court
for resentencing. On remand, however, the Government is free to amend the PSR
and offer the necessary substantiating evidence or testimony. See Combs, 44 F.4th
at 819.
III.
We accordingly vacate Thomas’s sentence and remand for resentencing.
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