United States v. Shane Thomason

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 26, 2023
• Docket: 22-4484
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4484

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHANE I. THOMASON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, Chief District Judge. (1:22-cr-00006-TSK-MJA-3)

Submitted: June 22, 2023 Decided: June 26, 2023

Before HARRIS and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Charles T. Berry, Kingmont, West Virginia, for Appellant. Christopher Lee Bauer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

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PER CURIAM:

Shane I. Thomason pled guilty, without a plea agreement, to conspiracy to violate

federal firearms laws, in violation of 18 U.S.C. § 371, and making a false statement during

the purchase of a firearm and aiding and abetting, in violation of 18 U.S.C. §§ 922(a)(6),

924(a)(2), 2. The district court sentenced Thomason to a total term of 63 months’

imprisonment, which included 60 months on the conspiracy conviction and a concurrent

term of 63 months on the false statement conviction. On appeal, counsel has filed a brief

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

issues for appeal but questioning whether: (1) Thomason’s guilty plea was valid; (2)

Thomason’s sentence is reasonable; and (3) trial counsel rendered ineffective assistance.

Although informed of his right to do so, Thomason has not filed a pro se supplemental

brief, and the Government has elected not to file a brief. We affirm.

Because Thomason did not move in the district court to withdraw his guilty plea,

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

621, 622 (4th Cir. 2016). 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 he faces upon conviction, and the various rights he

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

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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). We have reviewed the Rule 11 colloquy

and, discerning no plain error, we conclude that Thomason’s guilty plea is valid.

We review a sentence for reasonableness, applying “a deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This review entails

consideration of both the procedural and substantive reasonableness of the sentence. Id. at

51. In determining procedural reasonableness, we consider whether the district court

properly calculated the defendant’s Sentencing Guidelines range, gave the parties an

opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)

factors, and sufficiently explained the selected sentence. Id. at 49-51. If there are no

procedural errors, we then consider the substantive reasonableness of the sentence,

evaluating “the totality of the circumstances.” Id. at 51. “Any sentence that is within or

below a properly calculated [Sentencing] Guidelines range is presumptively reasonable,”

and this “presumption can only be rebutted by showing that the sentence is unreasonable

when measured against the 18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756

F.3d 295, 306 (4th Cir. 2014).

Here, the district court correctly calculated Thomason’s advisory Guidelines range, *

heard argument from counsel, provided Thomason an opportunity to allocute, considered

* We have reviewed the factual findings underlying the district court’s determination for clear error and the legal conclusions de novo and discern no error. United States v. Fluker, 891 F.3d 541, 547 (4th Cir. 2018).

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the § 3553(a) sentencing factors, and explained its reasons for imposing the chosen

sentence. Because Thomason has not demonstrated that his term of imprisonment “is

unreasonable when measured against the . . . § 3553(a) factors,” he has failed to rebut the

presumption of reasonableness accorded his within-Guidelines sentence. Id. We therefore

conclude that Thomason’s sentence is both procedurally and substantively reasonable.

To demonstrate ineffective assistance of trial counsel, Thomason “must show that

counsel’s performance was [constitutionally] deficient” and “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

However, unless an attorney’s ineffectiveness “conclusively appears on the face of the

record,” ineffective assistance claims are not generally addressed on direct appeal. United

States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). Instead, such claims should be

raised in a motion brought pursuant to 28 U.S.C. § 2255 in order to permit sufficient

development of the record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

We conclude that ineffectiveness of counsel does not conclusively appear on the face of

the record before us. Therefore, Thomason should raise this claim, if at all, in a § 2255

motion. Faulls, 821 F.3d at 508.

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 Thomason, in writing, of the right to petition the

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

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that a copy thereof was served on Thomason. 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