UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 15-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMONT ANDRE THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:15-cr-00003-GBL-1)
Submitted: August 25, 2020 Decided: October 5, 2020
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
John McIver Ervin, III, ERVIN LAW OFFICE, Darlington, South Carolina, for Appellant. Daniel Taylor Young, Assistant United States Attorney, Alexander Patrick Berrang, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Lamont Andre Thomas seeks to appeal his conviction and sentence after pleading
guilty to brandishing a firearm during and in relation to a crime of violence in violation of
18 U.S.C. §§ 2, 924(c)(1)(A)(ii). His predicate crime of violence was aiding and abetting
Hobbs Act robbery in violation of 18 U.S.C. §§ 2, 1951(a). On appeal, his attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising the issue of
whether the district court erred in denying his post-plea motion to dismiss the indictment
but concluding there are no meritorious grounds for appeal. The Government has moved
to dismiss the appeal as barred by the appeal waiver. Thomas has filed pro se supplemental
briefs principally contending his predicate offense does not categorically qualify as a crime
of violence in light of United States v. Davis, 139 S. Ct. 2319 (2019). We previously placed
this appeal in abeyance for United States v. Ali, No. 15-4433, which was expected to decide
whether Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c). In light of
United States v. Mathis, 932 F.3d 242, 263 (4th Cir. 2019) (Hobbs Act robbery constitutes
a crime of violence under the force clause), we now dismiss in part and affirm in part.
“Plea agreements are grounded in contract law, and as with any contract, each party
is entitled to receive the benefit of his bargain.” United States v. Edgell, 914 F.3d 281, 287
(4th Cir. 2019) (internal quotation marks and citation omitted). “Where, as here, the
Government seeks enforcement of an appeal waiver and there is no claim that the
Government breached its obligations under the plea agreement, the waiver will be enforced
to preclude a defendant from appealing a specific issue if the record establishes that the
2 waiver is valid and the issue being appealed is within the scope of the waiver.” United
States v. Archie, 771 F.3d 217, 221 (4th Cir. 2014) (citations omitted).
“Generally, if a district court questions a defendant regarding the waiver of appellate
rights during the Rule 11 colloquy and the record indicates that the defendant understood
the full significance of the waiver, the waiver is valid.” United States v. Tate, 845 F.3d
571, 574 n.1 (4th Cir. 2017) (internal quotation marks and citation omitted). “‘[T]he law
ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant
fully understands the nature of the right and how it would likely apply in general in the
circumstances—even though the defendant may not know the specific detailed
consequences of invoking it.’” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.
2012) (quoting United States v. Ruiz, 536 U.S. 622, 629 (2002)). A waiver is not rendered
invalid by failure to explicitly discuss the appeal issue at the Rule 11 hearing. Id. at 538.
“A defendant who waives his right to appeal a plea ‘retains the right to obtain
appellate review of his sentence on certain limited grounds.’” United States v. McCoy, 895
F.3d 358, 363 (4th Cir. 2018) (citation omitted). “An appeal waiver does not preclude a
defendant from challenging a sentence ‘based on a constitutionally impermissible factor’
or ‘a sentence imposed in excess of the maximum penalty provided by statute.’” United
States v. Cornette, 932 F.3d 204, 209 (4th Cir. 2019) (citation omitted). Moreover, “even
valid appeal waivers do not bar claims that a factual basis is insufficient to support a guilty
plea.” McCoy, 895 F.3d at 364; see also United States v. Adams, 814 F.3d 178, 182 (4th
Cir. 2016) (cognizable claim of actual innocence falls outside scope of waiver).
3 Upon review of the plea agreement and transcript of the Fed. R. Crim. P. 11 hearing,
we conclude that Thomas has knowingly and voluntarily waived his right to appeal his
conviction and sentence, and the issue raised in the Anders brief falls within the scope of
the waiver. However, we conclude that we may review his pro se claim that his predicate
offense is not a crime of violence under 18 U.S.C. § 924(c). See Cornette, 932 F.3d at 210.
Accordingly, we grant in part and deny in part the Government’s motion to dismiss.
We review the legal question whether an offense qualifies as a crime of violence de
novo. Mathis, 932 F.3d at 263. However, Thomas never argued in the district court that
his predicate offense of aiding and abetting Hobbs Act robbery did not qualify as a crime
of violence. “‘To preserve an argument on appeal, the defendant must object on the same
basis below as he contends is error on appeal.’” United States v. Westbrooks, 780 F.3d
593, 595 (4th Cir. 2015) (citation omitted). Since Thomas did not preserve his claim, we
review it for plain error. See United States v. Coston, 964 F.3d 289, 294 (4th Cir. 2020)
(citations omitted). He must therefore establish (1) an error, (2) that was plain, and (3) that
affected his substantial rights. Id. (citation omitted). “If he satisfies those factors, we may
exercise our discretion to correct the error if it ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Id. (citation omitted).
“An error is plain if it is ‘clear’ or ‘obvious’ by the time of appeal, either because of
‘settled law of the Supreme Court or this circuit’ or, ‘[i]n the absence of such authority,
decisions by other circuit courts of appeals.’” Id. (citations omitted). We conclude that
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 15-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMONT ANDRE THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:15-cr-00003-GBL-1)
Submitted: August 25, 2020 Decided: October 5, 2020
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
John McIver Ervin, III, ERVIN LAW OFFICE, Darlington, South Carolina, for Appellant. Daniel Taylor Young, Assistant United States Attorney, Alexander Patrick Berrang, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Lamont Andre Thomas seeks to appeal his conviction and sentence after pleading
guilty to brandishing a firearm during and in relation to a crime of violence in violation of
18 U.S.C. §§ 2, 924(c)(1)(A)(ii). His predicate crime of violence was aiding and abetting
Hobbs Act robbery in violation of 18 U.S.C. §§ 2, 1951(a). On appeal, his attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising the issue of
whether the district court erred in denying his post-plea motion to dismiss the indictment
but concluding there are no meritorious grounds for appeal. The Government has moved
to dismiss the appeal as barred by the appeal waiver. Thomas has filed pro se supplemental
briefs principally contending his predicate offense does not categorically qualify as a crime
of violence in light of United States v. Davis, 139 S. Ct. 2319 (2019). We previously placed
this appeal in abeyance for United States v. Ali, No. 15-4433, which was expected to decide
whether Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c). In light of
United States v. Mathis, 932 F.3d 242, 263 (4th Cir. 2019) (Hobbs Act robbery constitutes
a crime of violence under the force clause), we now dismiss in part and affirm in part.
“Plea agreements are grounded in contract law, and as with any contract, each party
is entitled to receive the benefit of his bargain.” United States v. Edgell, 914 F.3d 281, 287
(4th Cir. 2019) (internal quotation marks and citation omitted). “Where, as here, the
Government seeks enforcement of an appeal waiver and there is no claim that the
Government breached its obligations under the plea agreement, the waiver will be enforced
to preclude a defendant from appealing a specific issue if the record establishes that the
2 waiver is valid and the issue being appealed is within the scope of the waiver.” United
States v. Archie, 771 F.3d 217, 221 (4th Cir. 2014) (citations omitted).
“Generally, if a district court questions a defendant regarding the waiver of appellate
rights during the Rule 11 colloquy and the record indicates that the defendant understood
the full significance of the waiver, the waiver is valid.” United States v. Tate, 845 F.3d
571, 574 n.1 (4th Cir. 2017) (internal quotation marks and citation omitted). “‘[T]he law
ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant
fully understands the nature of the right and how it would likely apply in general in the
circumstances—even though the defendant may not know the specific detailed
consequences of invoking it.’” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.
2012) (quoting United States v. Ruiz, 536 U.S. 622, 629 (2002)). A waiver is not rendered
invalid by failure to explicitly discuss the appeal issue at the Rule 11 hearing. Id. at 538.
“A defendant who waives his right to appeal a plea ‘retains the right to obtain
appellate review of his sentence on certain limited grounds.’” United States v. McCoy, 895
F.3d 358, 363 (4th Cir. 2018) (citation omitted). “An appeal waiver does not preclude a
defendant from challenging a sentence ‘based on a constitutionally impermissible factor’
or ‘a sentence imposed in excess of the maximum penalty provided by statute.’” United
States v. Cornette, 932 F.3d 204, 209 (4th Cir. 2019) (citation omitted). Moreover, “even
valid appeal waivers do not bar claims that a factual basis is insufficient to support a guilty
plea.” McCoy, 895 F.3d at 364; see also United States v. Adams, 814 F.3d 178, 182 (4th
Cir. 2016) (cognizable claim of actual innocence falls outside scope of waiver).
3 Upon review of the plea agreement and transcript of the Fed. R. Crim. P. 11 hearing,
we conclude that Thomas has knowingly and voluntarily waived his right to appeal his
conviction and sentence, and the issue raised in the Anders brief falls within the scope of
the waiver. However, we conclude that we may review his pro se claim that his predicate
offense is not a crime of violence under 18 U.S.C. § 924(c). See Cornette, 932 F.3d at 210.
Accordingly, we grant in part and deny in part the Government’s motion to dismiss.
We review the legal question whether an offense qualifies as a crime of violence de
novo. Mathis, 932 F.3d at 263. However, Thomas never argued in the district court that
his predicate offense of aiding and abetting Hobbs Act robbery did not qualify as a crime
of violence. “‘To preserve an argument on appeal, the defendant must object on the same
basis below as he contends is error on appeal.’” United States v. Westbrooks, 780 F.3d
593, 595 (4th Cir. 2015) (citation omitted). Since Thomas did not preserve his claim, we
review it for plain error. See United States v. Coston, 964 F.3d 289, 294 (4th Cir. 2020)
(citations omitted). He must therefore establish (1) an error, (2) that was plain, and (3) that
affected his substantial rights. Id. (citation omitted). “If he satisfies those factors, we may
exercise our discretion to correct the error if it ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Id. (citation omitted).
“An error is plain if it is ‘clear’ or ‘obvious’ by the time of appeal, either because of
‘settled law of the Supreme Court or this circuit’ or, ‘[i]n the absence of such authority,
decisions by other circuit courts of appeals.’” Id. (citations omitted). We conclude that
Thomas has not shown any plain error. See Mathis, 932 F.3d at 266 (holding “Hobbs Act
robbery constitutes a crime of violence under the force clause of Section 924(c)”); United
4 States v. Richardson, 948 F.3d 733, 742 (6th Cir. 2020) (holding “conviction for aiding
and abetting Hobbs Act robbery satisfies the elements clause”); see also United States v.
Kimble, 855 F.3d 604, 613 (4th Cir. 2017) (noting “in the federal system, culpability for
an offense as an aider and abettor is treated no differently from treatment as a principal”).
In accordance with Anders, we have reviewed Thomas’ briefs and the record for any
meritorious issues that fall outside the waiver and have found none. Accordingly, we grant
the Government’s motion to dismiss the appeal in part, affirm the district court’s judgment,
grant the pro se motion to amend, and deny the pro se motion for release pending appeal
as moot. * This court requires that counsel inform his or her client, in writing, of his or her
right to petition the Supreme Court of the United States for further review. If the client
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 the client. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED IN PART, AFFIRMED IN PART
* Our denial of Thomas’ motion for release is without prejudice to any motion he may file in the district court based on COVID-19. See 18 U.S.C. § 3582(c)(1)(A)(i).