United States Court of Appeals
`FOR THE EIGHTH CIRCUIT
`___________
`
`No. 09-2655
`___________
`
`**
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`**
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` Appeal from the United States
`* District Court for the
`* Western District of Missouri.
`*
`*
`*
`*
`___________
`
`[PUBLISHED]
`
`United States of America,
`
`Appellee,
`
`v.
`
`Robert Thomas, also known
`as Christian Tadlock
`
`Appellant.
`
`Submitted: March 12, 2010
`Filed: August 4, 2010
`___________
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`Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
`___________
`
`BYE, Circuit Judge.
`
`Robert Thomas was convicted following an unconditional guilty plea of being
`a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and receipt
`of an unregistered machine gun, in violation of 26 U.S.C. § 5861(d). Thomas was
`sentenced to 151 months’ imprisonment. On appeal, Thomas argues the evidence was
`insufficient to convict him of being a felon in possession of a firearm. In addition,
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`Thomas contends that the district court1 violated Fed. R. Crim. P. 32(i)(3)(B) by
`failing to make rulings on two Sentencing Guidelines enhancements. We affirm.
`
`I
`
`On August 5, 1976, Robert Thomas was convicted of delivery of LSD, a
`controlled substance, in the Circuit Court for St. Clair County, Illinois, and was
`sentenced to four to six years in prison. Thomas appealed his conviction, but began
`serving his sentence on August 6, 1976. On December 22, 1977, Thomas was
`released on bond. On August 14, 1978, while Thomas was still free on bond, the
`Appellate Court of Illinois reversed his conviction and remanded the case to the circuit
`court for dismissal on the theory that Thomas had been entrapped as a matter of law.
`People v. Thomas, 381 N.E.2d 1058 (Ill. App. 1978). The State of Illinois then
`appealed the case to the Illinois Supreme Court, which, on October 19, 1979, reversed
`the judgment of the appellate court and affirmed Thomas’s conviction and sentence.
`People v. Cross, 396 N.E.2d 812, 820 (Ill. 1979). Thomas’s petition for a writ of
`certiorari to the United States Supreme Court was denied on March 17, 1980. Thomas
`v. Illinois, 445 U.S. 929 (1980).
`
`On April 16, 1980, Thomas faked his own death by staging a suicide. He left
`his vehicle abandoned on a bridge in Ballard County, Kentucky. A supposed suicide
`note addressed to his wife was left on the seat inside the vehicle. After faking his
`death, Thomas traveled throughout the United States and eventually settled in
`Farmington, Arkansas, in 1984, where he began living as “Christian Tadlock” with
`his girlfriend.
`
`1The Honorable Richard E. Dorr, United States District Judge for the Western
`District of Missouri.
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`-2-
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`In late September 2007, Special Agent Wes Patterson of the Bureau of Alcohol,
`Tobacco, Firearms, and Explosives (ATF) was contacted by a confidential informant
`who advised Patterson that a person known to him as “Chris” had asked the informant
`where he might obtain an MG-42 machine gun. Agent Patterson told the informant
`to provide Chris with his cellular telephone number so Chris could contact Agent
`Patterson. Shortly thereafter, an individual identifying himself as Chris contacted
`Agent Patterson and stated that he was interested in purchasing an MG-42 machine
`gun. Agent Patterson informed Chris that he had an MG-42 to sell and arrangements
`were made to consummate the transaction. On October 16, 2007, Agent Patterson
`made contact with Chris at a prearranged site in Joplin, Missouri. Chris arrived at the
`appointed location and introduced himself. After Patterson showed Chris an MG-42
`firearm, Chris produced $1,200 in United States currency which he handed to Agent
`Patterson in payment for the firearm. In return, Patterson handed the firearm to Chris,
`who then placed the machine gun in the bed of his pickup truck. As Chris attempted
`to enter his vehicle he was apprehended by assisting law enforcement officers. Chris
`identified himself as “Christian Tadlock” to the officers and was carrying a valid
`Arkansas driver’s license in that name. Shortly thereafter, Christian Tadlock was
`determined to be Robert Thomas.
`
`A search warrant was obtained for Thomas’s residence. During the course of
`the search, investigators recovered multiple machine guns, 21 rifles, 35 handguns, 3
`shotguns, 45,000 rounds of ammunition, 57 hand grenades, pipe bombs, and an
`assortment of gun parts. A search of the National Firearms Registration and Transfer
`Record revealed that there were no firearms registered to either Christian Tadlock or
`Robert Thomas. The machine gun sold to Thomas by Agent Patterson was fully
`operational and had traveled in interstate commerce.
`
`A federal grand jury returned a four-count superceding indictment against
`Thomas charging him with two counts of being a felon in possession of a firearm, in
`violation of 18 U.S.C.§ 922(g)(1), receipt of an unregistered machine gun, in violation
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`of 26 U.S.C. §§ 5861(d) and 5871, and possession of a stolen firearm, in violation of
`18 U.S.C. § 924(m).
`
`On February 12, 2009, Thomas filed a motion to quash the indictment and
`dismiss the case, arguing (1) he was not a convicted felon, and (2) he was unaware
`that he had sustained a prior felony conviction. The district court denied the motion.
`
`On February 19, 2009, Thomas pleaded guilty to one count of being a felon in
`possession of a firearm, and receipt of an unregistered machine gun. There was
`neither a plea agreement nor a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2).
`The district court accepted Thomas’s guilty plea. A preliminary presentence
`investigation report (PSR) was subsequently prepared by the United States Probation
`Department and provided to the parties for comment. On May 15, 2009, Thomas
`submitted thirteen written objections to the preliminary PSR. Two of the objections
`related to factual findings made by the probation department that impacted his
`advisory Sentencing Guidelines range of punishment. Specifically, Thomas
`contended that the number of firearms attributed to him should be reduced by forty-
`four because “the 44 hand grenades were not ‘live grenades’ they contained gun
`powdered [sic] for use in reenactments [sic].” Thomas also objected to receiving “a
`two level enhancement because he did not steal a firearm.”
`
`The final PSR was prepared and disseminated to the parties and the district
`court on May 28, 2009. The PSR maintained that the contested portions of the
`preliminary report were correct and calculated Thomas’s total offense level at 32,
`including enhancements for both the number of firearms attributable to Thomas, see
`U.S.S.G. § 2K2.1(b)(1)(C), and the fact that one of the firearms was determined to
`have been stolen, see U.S.S.G. § 2K2.1(b)(4). The probation officer, in addressing
`Thomas’s objections, noted that the grenades, even emptied of the original explosive
`charge, contained “gun powder and can explode” and were determined to be
`explosives by the ATF. With respect to Thomas’s claim that he should not receive a
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`two-level increase to his base offense level for possessing a stolen firearm, the
`probation officer replied that the firearm had been reported stolen and was located in
`Thomas’s possession.
`
`On July 7, 2009, the district court conducted a sentencing hearing. After hearing
`from the Government regarding its objections to the PSR, the district court asked
`Thomas’s counsel if he had “any other objections.” Thomas’s attorney replied: “No,
`sir, Your Honor. I voiced our objections. In talking to the probation officer and
`looking at her responses, I’m satisfied with it.”
`
`The district court then followed the PSR’s recommendation and sentenced
`Thomas to 120 months’ imprisonment as to Count One and 31 months’ imprisonment
`as to Count Two, to run consecutively, for an aggregate sentence of 151 months,
`followed by three years’ supervised release. Thomas appeals.
`
`II
`
`Thomas argues there was an insufficient factual basis to convict him of being
`a felon in possession of a firearm. See Fed. R. Crim. P. 11(b)(3). A guilty plea is
`supported by an adequate factual basis when the record contains “sufficient evidence
`at the time of the plea upon which a court may reasonably determine that the
`defendant likely committed the offense.” United States v. Gamble, 327 F.3d 662, 664
`(8th Cir. 2003) (internal quotation omitted).
`
`As a preliminary matter, the government argues Thomas waived his right to
`challenge the sufficiency of the evidence supporting his convictions because he
`pleaded guilty unconditionally.
`
`As this court pointed out in United States v. Cheney, 571 F.3d 764, 768 (8th
`Cir. 2009), “[t]he law is unsettled about whether a defendant can appeal the adequacy
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`of a factual basis after entering an unconditional guilty plea.” Id. We explained that
`while
`
`in United States v. Beck, 250 F.3d 1163, 1165 (8th Cir. 2001), we held
`that a defendant, by entering a guilty plea that was not conditional,
`waived his right to appeal the sufficiency of the factual basis for one
`element of the offense of conviction, . . . in United States v. Marks, 38
`F.3d 1009, 1012-13 (8th Cir. 1994), we reviewed the adequacy of a
`factual basis under Rule 11 despite an unconditional guilty plea.
`
`Cheney, 571 F.3d at 768. The Cheney court declined to resolve the split of authority,
`instead assuming the factual basis of the plea was reviewable and ruling against the
`defendant-appellant on the merits. We likewise assume here, without deciding, that
`the district court’s determination of a factual basis for Thomas’ unconditional guilty
`plea is reviewable on appeal.2
`
`Thomas argues the factual basis underpinning his guilty plea was deficient in
`two ways. First, Thomas alleges he is not a felon because he was never resentenced
`following the Illinois Supreme Court’s decision. Second, Thomas argues he did not
`know he was a felon when he possessed the firearms.
`
`Whether a particular conviction qualifies as a predicate felony for the purpose
`of § 922(g) is a question of law for the district court. United States v. Boaz, 558 F.3d
`800, 805 (8th Cir. 2009). We agree with the district court that Thomas is a felon.
`Although Thomas’s conviction was reversed by the Illinois Court of Appeals, the
`
`2We also decline to decide whether we review the district court’s decision under
`Federal Rule of Criminal Procedure 11(b)(3) in these circumstances through the lens
`of plain error, see United States v. Vonn, 535 U.S. 55, 58 (2002), or harmless error,
`see Fed. R. Crim. P. 11(h), because we ultimately conclude the district court did not
`err in determining that a factual basis existed in this case to support Thomas’s guilty
`plea.
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`Illinois Supreme Court reinstated Thomas’s conviction. Cross, 396 N.E.2d at 820.
`We fail to see how the issue of resentencing is relevant to Thomas’s status as a felon
`in light of the conviction itself, but note that Thomas was not resentenced because the
`Illinois Supreme Court reinstated his original sentence. Id. We therefore conclude
`the district court did not err in determining Thomas is a felon.
`
`Turning to the evidence of Thomas’s knowledge of his status as a convicted
`felon, Thomas argues that 18 U.S.C. § 922(g)(1) requires the government to prove a
`defendant knew of his status as a felon, and that the evidence was insufficient to prove
`he knew of his status.
`
`Thomas’s argument is foreclosed by United States v. Kind, 194 F.3d 900, 907
`(8th Cir. 1999). There, this court stated that in a prosecution under § 922(g)(1), “it is
`well settled in this circuit that the government need only prove defendant’s status as
`a convicted felon and knowing possession of the firearm.” See also United States v.
`Lomax, 87 F.3d 959, 962 (8th Cir.1996) (“[T]he ‘knowingly’ element of section
`922(g) applies only to the defendant’s underlying conduct, not to his knowledge of the
`illegality of his actions.”).
`
`We therefore conclude that Thomas’s guilty plea was supported by sufficient
`evidence to support the conclusion that Thomas likely committed the offense.
`
`III
`
`Thomas next argues that the district court failed to comply with Fed. R. Crim.
`P. 32(i)(3)(B). The relevant portion of the rule states that “[a]t sentencing, the court
`. . . must–for any disputed portion of the presentence report or other controverted
`matter–rule on the dispute or determine that a ruling is unnecessary either because the
`matter will not affect sentencing, or because the court will not consider the matter in
`sentencing.” We have stated that if a defendant disputes material facts in the PSR, the
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`court must “refuse to take those facts into account or hold an evidentiary hearing.”
`United States v. Morehead, 375 F.3d 677, 679 (8th Cir. 2004).
`
`On the record before us, we agree with the government that counsel for Thomas
`withdrew his objections to the PSR at the sentencing proceeding. When the district
`court asked defense counsel if he had any objections to the PSR, counsel stated, “No,
`sir, Your Honor. I voiced our objections. In talking to the probation officer and
`looking at her responses, I’m satisfied with it.” We take this to mean defense counsel
`agreed with the probation officer’s defense of the enhancements recommended by the
`PSR. We therefore conclude the district court complied with Fed. R. Crim. P.
`32(i)(3)(B).
`
`IV
`
`We affirm.
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`______________________________
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