United States v. Thomas , 162 F. App'x 332 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2006
Charles R. Fulbruge III
Clerk
No. 04-41742
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:04-CR-7-ALL)
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Before JONES, WIENER, and DeMOSS, Circuit Judges
PER CURIAM:*
Defendant-Appellant Mark Thomas appeals his conviction and
sentence for making a false statement in a matter within the
jurisdiction of the United States Bureau of Prisons. He contends
that the district court erred by denying his motion to suppress;
that the evidence was not sufficient to support his conviction; and
that the district court erred in its application of U.S.S.G. §
3A1.2(a). He also asserts for the first time on appeal, that his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
sentence runs afoul of United States v. Booker, 125 S. Ct. 738(2005). We affirm.
Motion to Suppress
Thomas filed a motion to suppress inculpatory statements he
made following a polygraph examination and interview with
Department of Justice Special Agent William Senter. After a
suppression hearing during which both Thomas and Senter testified,
the district court denied the motion, rejecting as not credible
Thomas’s assertions that Senter threatened and coerced him into
making the statements.
We review the voluntariness of a confession de novo, but we
review the district court’s factual findings underlying a
voluntariness determination for clear error. United States v.
Bell, 367 F.3d 452, 460-61 (5th Cir. 2004). “Where a district
court’s denial of a suppression motion is based on live oral
testimony, the clearly erroneous standard is particularly strong
because the judge had the opportunity to observe the demeanor of
the witness.” United States v. Santiago, 410 F.3d 193, 197 (5th
Cir. 2005).
Although on appeal Thomas reiterates his self-serving
allegations of coercion and threats, he has failed to show that the
court clearly erred in finding his allegations of coercion and
threats not credible. See Santiago, 410 F.3d at 197. Accordingly,
the denial of the motion to suppress was not error. See Bell, 367
F.3d at 460-61.
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Sufficiency of the evidence
Thomas insists that the evidence was insufficient to support
his conviction. He argues that the government did not prove that
he acted willfully, asserting that he did not know that it was
unlawful to make “such a false statement.” He also argues that the
government did not prove that the matter was within the
jurisdiction of a branch of the United States Government.
Thomas moved for a judgment of acquittal at the close of the
government’s case and renewed that motion at the close of all the
evidence. We review the denial of such motions de novo. See
United States v. Wise, 221 F.3d 140, 147 (5th Cir. 2000). In doing
so, we view the evidence in the light most favorable to the
verdict, accepting all credibility choices and reasonable
inferences made by the jury. Id. We shall uphold the conviction
if a reasonable factfinder could have found that the government
proved the essential elements of the offense beyond a reasonable
doubt. Id.A violation of 18 U.S.C. § 1001(a)(2) is committed by
knowingly making a materially false statement or representation in
any matter within the jurisdiction of the United States Government.
See § 1001(a)(2). It is not necessary that the false statement
pervert a governmental function. United States v. Rodriguez-Rios,
14 F.3d 1040, 1045 (5th Cir. 1994)(en banc). The willfulness
requirement demands only that the defendant “act [] with knowledge
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that his conduct was unlawful.” Id. at 1048 n.21 (internal
quotations and citation omitted).
The indictment charged that the matter was within the
executive branch of the government, “to-wit: the United States
Bureau of Prisons.” The evidence adduced at trial showed that
Officer Comstock was a staff member with the Bureau of Prisons
(BOP) and that the matter was investigated both by the BOP and the
Department of Justice. The BOP is an agency of the Department of
Justice, which is within the executive branch of the government.
See United States v. Bourgeois, 423 F.3d 501, 508 (5th Cir. 2005).
Thomas’s false statement against Comstock contained his
acknowledgment that “I have been informed that it is a violation of
federal law to provide false information to federal agents.”
Thomas indicated that he acted purposefully in making the
statement. The evidence is sufficient to establish that Thomas
acted with the knowledge that he was violating federal law by
providing false information to federal agents. See Rodriguez-Rios,
14 F.3d at 1048 n.21.
Application of § 3A1.2(a)
Thomas contends that the district court erred by increasing
his base offense level by three levels under U.S.S.G. § 3A1.2(a)
based on Officer Comstock’s status as an “official victim.” He
argues that in a prosecution for false statements, the victim is
the federal government and that, because Comstock did not suffer
any adverse consequences as a result of the false statements, she
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should not be considered a victim. He also argues, for the first
time on appeal, that his actions were not motivated by Comstock’s
official status. We review the sentencing court’s interpretation
and application of the guidelines de novo, and that court’s
findings of fact for clear error. United States v. Burns, 162 F.3d
840, 854 (5th Cir. 1998); see United States v. Villegas, 404 F.3d
355, 359 (2005)(standards of review remain unchanged after Booker).
Section 3A1.2(a) provides that if the victim was a government
officer or employee and the offense of conviction was motivated by
such status, the defendant’s offense level is increased by three
levels. The adjustment does not apply when the victim is an
organization, agency, or the government. § 3A1.2, comment. (n.1).
A “victim” is a “person who is directly and most seriously affected
by the offense.” § 3D1.2, comment. (n.2)(grouping of counts).
Several investigations into the matter were launched. As
Comstock was forced to answer Thomas’s false charges, she was a
victim of the offense. Accordingly, the district court did not err
in concluding that Comstock was a victim of the offense. See
United States v. Kirkham, 195 F.3d 126, 133 (2d Cir. 1999).
We review for plain error Thomas’s assertion that § 3A1.2 was
inapplicable because he was not motivated by Comstock’s official
status. Villegas, 404 F.3d at 358. Thomas acknowledged making the
allegations because he felt that Comstock did not perform her
duties as a prison official. The district court’s application of
§ 3A1.2 was not error, plain or otherwise.
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Booker Error
Thomas claims that his sentence was imposed in violation of
the precedent established in Booker, 125 S. Ct. at 738. He argues
that the facts established at trial could have resulted in an
advisory sentencing range of only 12 to 18 months of imprisonment.
He also argues that he must be resentenced under an advisory
guidelines regime. In Booker, 125 S. Ct. at 756, the Supreme Court
held that under the Sixth Amendment, “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” The Court also
excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act,
effectively rendering the guidelines as advisory only. Id. at 764-
65. As Thomas failed to raise a challenge to the application of
the guidelines to his sentence in the district court, our review is
for plain error only. See United States v. Mares, 402 F.3d 511,
520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
When a sentencing court imposes sentencing adjustments based
on facts exceeding those admitted by the defendant or encompassed
in the judgment of conviction, the first two prongs of the plain-
error standard are met. Mares, 402 F.3d at 521. Similarly,
application of the guidelines in their mandatory form constitutes
error that is plain. United States v. Valenzuela-Quevedo, 407 F.3d
728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267. A defendant
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must nevertheless demonstrate that the court’s errors affected the
outcome of the proceedings. See id.In the context of his Booker claim, Thomas must establish that
“the sentencing judge--sentencing under an advisory scheme rather
then a mandatory one--would have reached a significantly different
result.” See Mares, 402 F.3d at 521. In the context of his
challenge to the mandatory application of the guidelines, Thomas
must “demonstrate a probability sufficient to undermine confidence
in the outcome” of the sentencing proceedings. See Valenzuela-
Quevedo, 407 F.3d at 733 (internal quotations and citation
omitted).
Thomas has not met these burdens. At the sentencing hearing,
the court noted the seriousness of the offense and Thomas’s lengthy
criminal record. The court found that Thomas’s 16 felony
convictions in 19 years indicated a “difficulty in reforming.”
Thomas has pointed to nothing that indicates any likelihood that he
would have received a significantly lesser sentence. Neither has
he demonstrated that his sentencing would undermine confidence in
the process. As Thomas has not shown that his substantial rights
were affected by the district court’s error in sentencing, his
conviction and his sentence are
AFFIRMED.
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