United States v. Thomas , 206 F. App'x 220 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-20-2006
USA v. Thomas
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4129
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4129
UNITED STATES OF AMERICA
v.
SHAWN THOMAS
a/k/a FLUKEY
Shawn Thomas,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 01-cr-00818-1
(Honorable Joel A. Pisano)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 8, 2006
Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges
(Filed: November 20, 2006)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Shawn Thomas appeals his criminal sentence. His attorney has filed a
motion to withdraw as counsel and has submitted a brief under Anders v. California, 386
U.S. 738 (1967). Thomas was provided timely notice of his attorney’s motion to
withdraw, but did not file a pro se brief. We will affirm.
I.
On December 17, 2002, in a superseding indictment, the United States Attorney
charged Thomas with three drug-related offenses. At trial, a jury convicted Thomas of
conspiracy to possess with intent to distribute more than five kilograms of cocaine and
more than fifty grams of cocaine base. The District Court sentenced Thomas to 360
months’ imprisonment to be followed by five years of supervised release and a special
assessment of $100.00. On appeal, we upheld Thomas’s conviction, but vacated his
sentence and remanded for resentencing under United States v. Booker, 543 U.S. 220
(2005). On remand, the District Court granted Thomas a two level downward departure
based on a showing of remorse, which resulted in a guideline range of 292 to 365 months.
The court then sentenced Thomas to 300 months’ imprisonment.
II.
Third Circuit Local Appellate Rule 109.2(a) provides “[w]here, upon review of the
district court record, trial counsel is persuaded that the appeal presents no issue of even
arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant
to Anders v. California, 386 U.S. 738 (1967).” When counsel submits an Anders brief,
we must engage in a two-pronged analysis. United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001). First, we must consider “whether counsel adequately fulfilled the rule’s
requirements.” Id. Second, we must consider “whether an independent review of the
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record presents any nonfrivolous issues.” Id. But when defense counsel files an adequate
Anders brief, “we confine our scrutiny to those portions of the record identified by [the
brief].” Id. at 301.
To adequately fulfill the requirements of Rule 109.2(a), the brief must “satisfy the
court that counsel has thoroughly examined the record in search of appealable issues, and
. . . explain[ed] why the issues are frivolous.” Id. at 300 (citing United States v. Marvin,
211 F.3d 778, 780 (3d Cir. 2000)). At a minimum, counsel must engage in a
conscientious examination of the case. Id. In a previous appeal, we examined and
rejected challenges to Thomas’s conviction. See United States v. Thomas, 127 Fed.
Appx. 582, 585 (3d Cir. 2005) (unpublished). Accordingly, defense counsel properly
limited its Anders brief to Thomas’s resentencing. Furthermore, defense counsel’s
Anders brief included a detailed analysis of the “reasonableness” of the imposed sentence
with the appropriate citations. In all, defense counsel filed an adequate Anders brief.
To prevail Thomas must establish that the District Court imposed an unreasonable
sentence. See United States v. Cooper, 437 F.3d 324, 326 (2006) (noting appellate courts
review sentences for reasonableness). But the District Court’s sentence was within the
guideline range after having made a discretionary downward departure.1 The District
1
At remand, the parties did not dispute the District Courts’ calculation of the guideline
range. The District Court found the guideline called for an initial offense level of 32
based on Thomas’ conviction for participating in a drug conspiracy involving violence.
The court then found Thomas qualified as a career criminal because of his two prior
convictions of violence, raising his offense level to 37 with a criminal history category of
(continued...)
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Court reduced Thomas’s sentence by 60 months from the originally imposed sentence.
We see nothing in the record to undermine the reasonableness of Thomas’s sentence.
III.
We will affirm the judgment of sentence. Defense counsel’s motion to withdraw is
granted.
1
(...continued)
six. The parties did dispute whether the court should exercise its discretion under Booker
to shorten Thomas’ initial sentence. The court granted Thomas a discretionary two level
downward departure for showing remorse at the resentencing hearing.
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