United States v. Thomas

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 1, 2022
• Docket: 22-6041
• Status: Unpublished

Opinion

Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-6041 v. (D.C. No. 5:20-CR-00212-PRW-1) (W.D. Okla.) MARIO LAIVEL THOMAS,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, MURPHY, and EID, Circuit Judges. _________________________________

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Mario Laivel Thomas pleaded guilty to two counts of being a felon illegally in

possession of a firearm. See 18 U.S.C. § 922(g)(1). The district court departed

and/or varied upward substantially from the advisory range set out in the United

States Sentencing Guidelines. Thomas’s counsel filed a timely notice of appeal.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 2

Thereafter, however, counsel filed in this court a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting they could find no meritorious basis

for appeal and moving to withdraw as counsel. For those reasons set out below,

this court grants counsel’s motion to withdraw and dismisses this appeal.

On May 11, 2020, local Oklahoma police officers were dispatched to a

convenience store based on a report of a vehicle hitting a gas pump and fleeing

the scene. An officer initiated a traffic stop near the store and made contact with

Thomas, the driver of the vehicle. When Thomas exited the vehicle, a firearm

fell from his lap onto the ground. Officers detained Thomas and confiscated a

loaded .380 Bersa Thunder. An officer cleared the weapon of one chambered

round of ammunition and a six-round magazine. Officers located a second seven-

round magazine in the vehicle’s driver’s seat. Thomas, who appeared lethargic,

was “drooling” from the mouth, drifting in and out of consciousness, and unable

to answer any of the officers’ questions. Thomas was transported to the hospital

for further observation. A juvenile passenger, who also appeared to be under the

influence of drugs, was also inside of the vehicle. She stated she and Thomas had

taken Percocet prior to arriving at the convenience store.

On August 9, 2020, officers were dispatched to a residence based on a

reported disturbance involving a firearm and shots fired. It was noted that people

were screaming for help. As officers approached the scene, they observed two

male subjects and a female subject fighting in the roadway. When Thomas, one

of the male subjects, noticed the officers, he fled the scene towards a residence.

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As officers exited their patrol cars, one of the subjects who had been fighting,

P.Y., yelled that Thomas had a firearm. Officers retreated until additional units

arrived, including air support and a K-9 unit, noting there were several other

subjects outside of the property as well as a pit bull. P.Y. told the officers the

residence was occupied by his mother, R.D. P.Y. had come to visit R.D. and, as

he approached the driveway, Thomas, his mother’s domestic partner, started a

physical confrontation with him. P.Y. stated he fought back and the fight

continued into the roadway. According to P.Y., Thomas fired at least two rounds

toward him.

Additional officers arrived on the scene and searched the immediate area of

R.D.’s residence. After numerous verbal commands, Thomas exited a travel

trailer in R.D.’s backyard and surrendered. Officers searched the area and

located two spent .380 shell casings in the roadway. R.D. and Thomas consented

to a search of the premises. Officers located a black .380 caliber Smith and

Wesson M & P handgun that was loaded with four rounds of .380 ammunition. A

check of the firearm’s serial number confirmed it had been reported stolen.

Thomas was Mirandized and agreed to speak with one of the officers. After

initially denying that the gun belonged to him, Thomas admitted he possessed the

firearm during the altercation and that it had “went off.” He stated he was

defending himself with the firearm because P.Y. attacked him and he did not

understand why he would be in trouble.

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After a federal grand jury returned a superseding indictment charging

Thomas with, inter alia, two § 922(g)(1) counts based on the events recounted

above, Thomas entered a plea agreement that disposed of the case. In exchange

for pleading guilty to the two § 922(g)(1) counts and waiving the overwhelming

majority of his appellate rights, the government agreed to dismiss the original

indictment, dismiss an additional § 922(g)(1) count, and recommend that

Thomas’s total offense level be adjusted downward based on acceptance of

responsibility. And, most importantly, the state of Oklahoma agreed that any

sentence it obtained in parallel state-court criminal proceedings involving

Thomas would run concurrently with any sentence imposed in this case. The

district court conducted a change of plea hearing and concluded Thomas had

knowingly, voluntarily, and intelligently agreed to plead guilty. Accordingly, the

district court accepted Thomas’s plea and found him guilty of the relevant

§ 922(g)(1) charges. Thomas’s criminal history category VI, when combined

with his total offense level of 23, resulted in an advisory sentencing range of 92

to 115 months’ imprisonment. The PSR further noted, however, that an upward

variance or departure would be appropriate to account for Thomas’s

extraordinarily extensive and violent criminal history and his use of a firearm in

the commission of one of the § 922(g)(1) convictions. Thomas filed objections to

portions of the PSR noting the possibility of an upward departure and/or variance.

Thomas also addressed the propriety of an upward variance or departure in his

sentencing memorandum.

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The district court held a sentencing hearing on March 2, 2022. After

listening to extensive arguments from Thomas’s counsel, the district court

concluded a sentence of 180 months’ imprisonment was appropriate, whether

imposed as an upward variance or upward departure. The district court focused

on the following in reaching that conclusion: (1) Thomas’s extensive and violent

criminal history, a history the district court found was the most extensive it had

seen; (2) the fact much of the violence was directed at women and Thomas’s

domestic partners; and (3) Thomas’s discharge of a stolen gun during the

commission of one of the underlying crimes while on pretrial supervision for the

second underlying crime. The district court concluded that none of Thomas’s

personal characteristics, particularly his long-term drug use, mitigated his

culpability or his future dangerousness to society. Finally, in its statement of

reasons attached to the judgment, the district court justified the upward departure

by reference to the inadequacy of the advisory sentence range in accounting for

Thomas’s extensive criminal history, U.S.S.G. § 4A1.3, and his discharge of a

firearm during an underlying offense, id. § 5K2.6. The district court’s statement

of reasons likewise noted the 180-month sentence was justified as an upward

variance to account for the extreme nature of the offense involving the discharge

of a firearm, the extensive nature of Thomas’s criminal history, and the need to

protect the public from further crimes by Thomas. See 18 U.S.C. § 3553(a)(1),

(a)(2)(C).

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This appeal is before the court on Thomas’s counsel’s Anders brief.

Pursuant to Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel is required to submit an appellate brief “indicating any potential

appealable issues.” Id. Once notified of counsel’s brief, the defendant may then

submit additional arguments to this court. Id. We “must then conduct a full

examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id. Despite being notified of his entitlement to do so on multiple

occasions, Thomas did not file a brief in response to counsel’s Anders brief. The

government declined to file a brief. Thus, our resolution of the case is based on

counsel’s Anders brief and this court’s independent review of the record. That

independent review demonstrates any potential issue that would be raised on

appeal is wholly frivolous.

Counsel asserts they have conscientiously reviewed the record in this case

and cannot assert a non-frivolous basis to challenge either the validity of

Thomas’s convictions or sentence. As counsel correctly recognizes at the outset,

the arguments Thomas may raise are significantly narrowed by the appellate

waiver in his plea agreement. Thomas specifically waived the right to appeal his

guilty plea “and any other aspect of [his] conviction, including but not limited to

any rulings on pretrial suppression motions or any other pretrial dispositions of

motions and issues.” Regarding his sentence, the waiver bars arguments based on

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“the manner in which the sentence is determined” allowing only an appeal

challenging the substantive reasonableness of any sentence imposed in excess of

the top of the advisory Guidelines range. For that reason, many of the issues

identified by counsel on appeal would be barred by the waiver even if they were

not frivolous.

According to counsel, Thomas contends he did not know it was possible for

the district court to impose consecutive sentences. Even if viewed as a challenge

to the substantive reasonableness of his sentence, and thus outside the limitations

of the appellate waiver, this argument is frivolous. Thomas’s petition to enter a

guilty plea and the plea agreement itself specifically note that the district court

had discretion to sentence him to the statutory maximum sentence on each count

of conviction and to run the sentences consecutively.

Counsel notes that it might be possible to argue Thomas was not provided

adequate notice of the possibility of an upward departure. See Fed. R. Crim. P.

32(h). Counsel correctly concedes such an argument would be frivolous for two

independent and equally dispositive reasons. First, the district court imposed its

sentence after concluding it was justified as either an upward departure or upward

variance. The notice requirement set out in Rule 32(h) does not apply to

variances. Irizarry v. United States, 553 U.S. 708, 716 (2008); United States v.

Lymon, 905 F.3d 1149, 1155 n. 4 (10th Cir. 2018). Thus, any error in failing to

provide notice with regard to the departure would be clearly harmless. United

States v. Perez, 806 F. App’x 725, 728–29 (11th Cir. 2020); United States v.

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Nelson, 793 F.3d 202, 206–07 (1st Cir. 2015); United States v. Peninger, 456 F.

App’x 214, 219 (4th Cir. 2011). In any event, the PSR specifically provided

Thomas notice that he faced the possibility of upward departures at sentencing.

Such notice satisfies the requirements of Rule 32(h). See Fed. R. Crim. P. 32(h)

(“Before the court may depart from the applicable sentencing range on a ground

not identified for departure either in the presentence report or in a party’s

prehearing submission, the court must give the parties reasonable notice that it is

contemplating such a departure.” (emphasis added)).

Finally, counsel indicates a conscientious review of the record also

demonstrates any challenge to the substantive reasonableness of Thomas’s 180-

month sentence would be frivolous. This court strongly agrees. A defendant

arguing substantive unreasonableness faces the difficult task of demonstrating the

district court’s sentencing decision “was an abuse of discretion because it was

arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.

Dunbar, 718 F.3d 1268, 1282 (10th Cir. 2013). That is, Thomas must convince

this court that the district court’s sentencing decision was not “within the range

of possible outcomes that the circumstances fairly support.” United States v.

Lente, 759 F.3d 1149, 1174 (10th Cir. 2014) (quotation omitted). Under this

standard, we “uphold even substantial variances when the district court properly

weighs the § 3553(a) factors and offers valid reasons for the chosen sentence.”

United States v. Gross, 44 F.4th 1298, 1304 (10th Cir. 2022).

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A review of the record leaves no doubt the district court’s sentence,

although reflecting a substantial upward variance, is reasonable. Importantly,

both felon-in-possession convictions involved aggravating factors. As to the

first, those factors included the conduct surrounding Thomas’s possession of the

weapon when he drove into a gas pump while substantially impaired on drugs

with a similarly impaired juvenile in the car. As to the second felon-in-

possession conviction, Thomas discharged the firearm during a violent physical

altercation involving his domestic partner and the domestic partner’s son.

Regarding Thomas’s history and characteristics, the district court emphasized

several times the extensive and violent nature of Thomas’s criminal history.

Indeed, the district court stated it had never seen such an extensive criminal

history. Although Thomas’s counsel argued Thomas’s criminal behavior could be

explained by his drug addiction, the district court reasonably chose not to give

those arguments much weight:

But not every drug user chooses to engage in the type of criminal violent behavior that you have. So I do think that we have a much deeper and broader problem than the drug addiction.

Your history reflects from virtually your entire non-adolescent life and including part of your adolescent life that you’ve chosen crime and violence. And I’m particularly concerned about the behavior. It does seem to have escalated very recently. These incidents for which you were arrested here could have been so much worse.

And even when I look throughout the history, I see so many domestic incidents that involve violence towards women and partners that you have that I find extremely troubling and represent a pattern of criminality that just hasn’t been interrupted for your entire life.

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Considering all the circumstances, there can be no doubt the district court

reasonably concluded a 180-month’s sentence was necessary to protect the public

and reflect the seriousness of Thomas’s crimes of conviction and criminal history.

Pursuant to the Anders mandate, this court has undertaken an independent

review of the entire record in this case. Our review demonstrates that the

potential issues raised in counsel’s Anders brief are undeniably frivolous.

Likewise, this court’s review of the entire record reveals no other potentially

meritorious issues. Accordingly, we GRANT counsel’s motion to withdraw and

DISMISS this appeal.

Entered for the Court

Michael R. Murphy Circuit Judge