Submitted March 9, 2015.
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.
For United States of America, Plaintiff - Appellee: Michael S. Gordon, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Eastern District of Arkansas, Little Rock, AR.
For Clifton Lamon Thomas, Defendant - Appellant: William Owen James, Jr., Little Rock, AR.
Clifton Lamon Thomas, Defendant - Appellant, Pro se, Waymart, PA.
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
Clifton Thomas appeals the 33 month sentence imposed by the district court after revocation of his supervised release. Jones argues, and the government agrees, that the district court erred by determining he had committed a grade A violation. We reverse and remand for resentencing.
In December 2008, Thomas pleaded guilty to distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court imposed the sentence specified in the plea agreement which was 72 months imprisonment and four years supervised release. Thomas began supervised release in April 2013. On January 14, 2014, his probation officer petitioned for revocation for alleged violations including testing positive for marijuana use and failure to report for drug testing. At a hearing on February 28, the district court found a grade C violation but decided to continue the case before sentencing " to see how defendant will comply with the conditions of release." The order continuing the case for 30 days was entered on March 13.
On March 15, 2014, Thomas was arrested for battery, aggravated assault, possession of a firearm, criminal mischief, and fleeing an officer following an incident in a nightclub parking lot. The government again petitioned for revocation of supervised release. Little Rock, Arkansas police officer Johnny Gilbert testified at the revocation hearing. He said that about 3:30 a.m. on March 15, 2014, he was off duty and working as a private security guard for the Elevations nightclub. Near the exit of the nightclub's overflow parking lot, Gilbert saw a man crouch down and point a semiautomatic pistol into the parking lot. Then he heard a " pop-pop-pop noise" and saw " muzzle flash." The man fired " [e]ight to ten shots." Gilbert drove toward the man in his patrol car with his lights activated, and the man ran toward a Toyota Camry. Gilbert observed that the shooter was African American and was wearing a dark jacket and a white T-shirt.
As the shooter entered his car, Gilbert activated his siren. The shooter drove off and Gilbert followed in pursuit, notifying other officers of the situation. Gilbert followed the car for " several minutes" as it traveled at speeds over 60 miles per hour through a residential neighborhood with a speed limit of 25 miles per hour. There was no other traffic on the road, and Gilbert never lost sight of the car. The pursuit ended when the shooter drove into the parking lot of a doughnut shop and fled on foot.
Gilbert kept sight of the shooter while also checking the Camry to make sure no one else was inside. He saw the shooter run up a hill and climb a wooden fence and noticed that the shooter had a disfigured right hand. Gilbert communicated this information to other officers. Officer Byron Harper drove to the other side of the wooden fence where he pursued Thomas and then arrested him " less than a minute" after Gilbert had seen the shooter jump the fence. When he was arrested Thomas was wearing a white T-shirt and a black jacket, and his clothing had mud and wood fragments on it, ...