United States v. Gerald Thomas

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 26, 2022
• Docket: 21-4258
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4258

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GERALD NATHAN THOMAS, a/k/a Gerald Martin Thomas,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Joseph F. Anderson, Jr., Senior District Judge. (5:19-cr-00265-JFA-1)

Submitted: September 22, 2022 Decided: September 26, 2022

Before WILKINSON, DIAZ, and RUSHING, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville, South Carolina, for Appellant. Elliott Bishop Daniels, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

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PER CURIAM:

Gerald Nathan Thomas pled guilty, pursuant to a written plea agreement, to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(a)(2)

(2018). * The district court imposed a within-Sentencing Guidelines term of 120 months’

imprisonment—capped at the statutory maximum sentence, see U.S. Sentencing

Guidelines Manual § 5G1.1(a) (2018)—and three years of supervised release. On appeal,

Thomas’ attorney 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 the district

court erred in applying a four-level sentencing enhancement for possession of a firearm or

ammunition in connection with another felony offense, under USSG § 2K2.1(b)(6)(B).

Thomas has filed pro se supplemental briefs also challenging the application of the

sentencing enhancement, and additionally asserting ineffective assistance of counsel and

prosecutorial misconduct. The Government moves to dismiss the appeal pursuant to the

appellate waiver in Thomas’ plea agreement. We affirm in part and dismiss in part.

We review the validity of an appellate waiver de novo and “will enforce the waiver

if it is valid and the issue appealed is within the scope of the waiver.” United States v.

Adams, 814 F.3d 178, 182 (4th Cir. 2016). Upon review of the plea agreement and the

* Section 924(a)(2) was amended and no longer provides the penalty for § 922(g) convictions; the new penalty provision in 18 U.S.C. § 924(a)(8) sets forth a statutory maximum sentence of 15 years’ imprisonment for a § 922(g) offense. See Bipartisan Safer Communities Act, Pub. L. No. 117-159, § 12004(c), 136 Stat. 1313, 1329 (2022). The 15- year statutory maximum does not apply in this case, however, because Thomas was convicted before the June 25, 2022, amendment of the statute.

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transcript of the Fed. R. Crim. P. 11 hearing, we conclude that Thomas knowingly and

voluntarily waived his right to appeal his conviction and sentence, except for claims of

ineffective assistance of counsel, prosecutorial misconduct, or future changes in the law,

and that the sentencing issue he raises on appeal falls squarely within the scope of the

waiver. Accordingly, we grant the Government’s motion to dismiss in part and dismiss the

appeal as to all issues within the scope of the waiver.

The waiver provision, however, does not preclude our review of the validity of the

guilty plea pursuant to Anders. See United States v. McCoy, 895 F.3d 358, 364 (4th

Cir. 2018). We therefore deny in part the Government’s motion to dismiss. Because

Thomas did not seek to withdraw his guilty plea, we review the adequacy of the

Rule 11 hearings for plain error. United States v. Williams, 811 F.3d 621, 622 (4th

Cir. 2016); see also United States v. Sanya, 774 F.3d 812, 816 (4th Cir. 2014) (discussing

plain error standard). Our review of the record leads us to conclude that Thomas entered

his guilty plea knowingly and voluntarily and that a factual basis supported the plea. See

United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Discerning no plain

error, we conclude that Thomas’ guilty plea is valid.

With respect to Thomas’ allegations of ineffective assistance of counsel, we do not

consider ineffective assistance claims on direct appeal, “unless the record conclusively

shows ineffective assistance.” United States v. Jordan, 952 F.3d 160, 163 n.1 (4th

Cir. 2020) (internal quotation marks omitted). “Because there is no conclusive evidence

of ineffective assistance on the face of this record, [Thomas’] claim should be raised, if at

all, in a [28 U.S.C.] § 2255 motion.” Id. Further, our review of the record reveals no

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evidence of prosecutorial misconduct. See, e.g., United States v.

Benson, 957 F.3d 218, 234 (4th Cir. 2020) (noting that defendant must show “(1) the

prosecutor’s remarks or conduct were improper and (2) that such remarks or conduct

prejudicially affected [the defendant’s] substantial rights so as to deprive him of a fair

[sentencing determination]” to prevail on claim of prosecutorial misconduct (internal

quotation marks omitted)).

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

found no meritorious grounds for appeal outside the scope of Thomas’ valid appellate

waiver. We therefore dismiss the appeal as to all issues within the scope of the waiver, and

affirm the remainder of 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.

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 IN PART, DISMISSED IN PART