United States v. Demetrius Thompson

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 21, 2023
• Docket: 22-3425
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0183n.06

No. 22-3425

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 21, 2023 DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE ) NORTHERN DISTRICT OF DEMETRIUS THOMPSON, ) OHIO Defendant-Appellant. ) OPINION

Before: SILER, KETHLEDGE, and WHITE, Circuit Judges.

KETHLEDGE, Circuit Judge. Demetrius Thompson pled guilty to two drug offenses, and

the district court sentenced him to 170 months’ imprisonment. He now argues that we should

vacate his guilty plea because, he says, his trial counsel was constitutionally ineffective and the

court failed to comply with Rule 11 during his plea hearing. We reject his arguments and affirm.

In 2019, a grand jury indicted Thompson on one count of attempted possession with intent

to distribute controlled substances and one count of possession with intent to do the same, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. The parties began negotiating a plea agreement but

were unsure whether Thompson would qualify as a career offender. The probation office then

filed, on Thompson’s request, a pre-plea criminal history report opining that Thompson was a

career offender and that, “therefore, the criminal-history category is VI.” See R.16. No. 22-3425, United States v. Thompson

The district court thereafter held a plea hearing (albeit remotely), during which Thompson

acknowledged that he qualified as a career offender. The court stated that it would determine

Thompson’s criminal-history category at sentencing, which Thompson likewise acknowledged.

The probation office later filed a presentence report in which it again concluded that

Thompson was a career offender with a criminal-history category of VI. Thompson offered no

objection to any of the report’s conclusions before or during his sentencing hearing. At sentencing,

the government moved for a four-level downward departure, which the court granted. That left

Thompson with a guidelines range of 168 to 210 months. The court imposed a sentence of 170

months. Again Thompson did not object.

Thompson now argues that his trial counsel provided ineffective assistance with respect to

his guilty plea. Typically we adjudicate claims of ineffective assistance by trial counsel in a § 2255

motion—because that allows for development of a fuller record as to the claim—rather than on

direct appeal. See United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). Thompson offers

no reason for us to depart from that practice here, so we decline to adjudicate that claim.

Thompson separately argues that the district court failed to comply with Criminal Rule 11

during his plea hearing. Specifically, Thompson seems to assert he was unaware of the likely

consequences of his guilty plea because, he says, the district court did not explain to him that his

criminal-history category would be VI. Thompson made no such argument to the district court,

so we review only for plain error. United States v. Pitts, 997 F.3d 688, 701 (6th Cir. 2021). We

see none here: the probation office’s report before the plea hearing stated (correctly) that

Thompson’s criminal-history category would be VI; and Thompson does not even assert that he

-2- No. 22-3425, United States v. Thompson

would not have pled guilty absent the putative omission he complains about here. See United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). We therefore reject this claim.

The district court’s judgment is affirmed.

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