United States v. Barbara Thomas

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 20, 2023
• Docket: 22-4248
• Status: Unpublished

Opinion

USCA4 Appeal: 22-4248 Doc: 21 Filed: 03/20/2023 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4248

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BARBARA ANN THOMAS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Thomas S. Kleeh, Chief District Judge. (2:21-cr-00016-TSK-MJA-4)

Submitted: March 16, 2023 Decided: March 20, 2023

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Diana Stavroulakis, Weirton, West Virginia, for Appellant. Stephen Donald Warner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4248 Doc: 21 Filed: 03/20/2023 Pg: 2 of 5

PER CURIAM:

Barbara Ann Thomas pleaded guilty, pursuant to a written plea agreement, to

possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C). The district court sentenced her to 151 months’ imprisonment, the

bottom of the applicable advisory Sentencing Guidelines range. Counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious

grounds for appeal but questioning whether Thomas’ guilty plea is valid, whether Thomas’

sentence is procedurally and substantively reasonable, and whether the appellate waiver

provision in Thomas’ plea agreement is enforceable. Although notified of her right to do

so, Thomas has not filed a pro se supplemental brief. The Government declined to file a

brief and has not moved to enforce the appeal waiver in Thomas’ plea agreement. ∗ We

affirm.

Prior to accepting a guilty plea, the district court, through a colloquy with the

defendant, must inform the defendant of, and determine that the defendant understands, the

charge to which the plea is offered, any mandatory minimum penalty, the maximum

possible penalty she faces upon conviction, and the various rights she is relinquishing by

pleading guilty. Fed. R. Crim. P. 11(b). The district court also must ensure that the

defendant’s plea was voluntary, was supported by a sufficient factual basis, and did not

result from force or threats, or promises not contained in the plea agreement. Fed. R. Crim.

Because the Government has not moved to enforce the appellate waiver, we ∗

conduct a full review pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).

2 USCA4 Appeal: 22-4248 Doc: 21 Filed: 03/20/2023 Pg: 3 of 5

P. 11(b)(2), (3). In reviewing the adequacy of the court’s compliance with Rule 11, we

“accord deference to the trial court’s decision as to how best to conduct the mandated

colloquy with the defendant.” United States v. Moussaoui, 591 F.3d 263, 295

(4th Cir. 2010) (internal quotation marks omitted).

Because Thomas did not move in the district court to withdraw her guilty plea, we

review the validity of her guilty plea for plain error. United States v. Williams, 811 F.3d

621, 622 (4th Cir. 2016). To establish plain error, Thomas must establish that “(1) an error

was made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Harris, 890 F.3d 480, 491 (4th Cir. 2018) (internal quotation marks

omitted). In the guilty plea context, a defendant meets his burden to establish that a plain

error affected her substantial rights by showing a reasonable probability that she would not

have pled guilty but for the district court’s Rule 11 omissions. United States v. Sanya, 774

F.3d 812, 815-16 (4th Cir. 2014). We have reviewed the Rule 11 colloquy and, discerning

no plain error, we conclude that Thomas’ guilty plea is valid.

“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an

abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,

or significantly outside the [Sentencing] Guidelines range.’” United States v. Nance, 957

F.3d 204, 212 (4th Cir. 2020) (first alteration in original) (quoting Gall v. United States,

552 U.S. 38, 41 (2007)). In performing that review, we must first determine whether the

district court “committed any procedural error, such as improperly calculating the

Guidelines range, failing to consider the § 3553(a) factors, or failing to adequately explain

3 USCA4 Appeal: 22-4248 Doc: 21 Filed: 03/20/2023 Pg: 4 of 5

the chosen sentence.” Id. If “the district court has not committed procedural error,” we

then assess the substantive reasonableness of the sentence. Id. Our substantive

reasonableness review “takes into account the totality of the circumstances to determine

whether the sentencing court abused its discretion in concluding that the sentence it chose

satisfied the standards set forth in § 3553(a).” Id. (internal quotation marks omitted). “Any

sentence that is within or below a properly calculated Guidelines range is presumptively

[substantively] reasonable. Such a presumption can only be rebutted by showing that the

sentence is unreasonable when measured against the . . . § 3553(a) factors.” United

States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (citation omitted).

We are satisfied that Thomas’ sentence of imprisonment is procedurally reasonable.

Our review of the record confirms that the district court properly calculated the advisory

Guidelines range to be 151 to 188 months’ imprisonment, considered the § 3553(a) factors,

addressed Thomas’ mitigation arguments, and sufficiently explained the reasons for the

sentence imposed. We also conclude that nothing in the record rebuts the presumption of

substantive reasonableness afforded to Thomas’ 151-month sentence.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Thomas, in writing, of the right to petition the

Supreme Court of the United States for further review. If Thomas 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 Thomas.

4 USCA4 Appeal: 22-4248 Doc: 21 Filed: 03/20/2023 Pg: 5 of 5

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