United States v. Thomas ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-20-2005
USA v. Thomas
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4447
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"USA v. Thomas" (2005). 2005 Decisions. Paper 814.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-4447
UNITED STATES OF AMERICA
v.
MARSHAUN THOMAS
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 01-cr-00058-1)
District Judge: Honorable Katharine S. Hayden
Submitted Under Third Circuit LAR 34.1(a)
October 7, 2004
Decided November 26, 2004
On Remand from the Supreme Court
of the United States June 20, 2005
Before: SLOVITER, VAN ANTWERPEN, and COWEN, Circuit Judges.
(Filed: July 20, 2005)
OPINION
SLOVITER, Circuit Judge.
This matter is before us on remand by the United States Supreme Court. This
court, by way of an opinion filed November 26, 2004, affirmed Marshaun Thomas’
judgment of conviction for violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(c), and his sentence of 360 months
incarceration (less time served in state custody). United States v. Thomas, 389 F.3d 424(3d Cir. 2004). In so doing, we rejected Thomas’ argument that he was entitled to
withdraw his guilty plea because of several alleged defects with his Fed. R. Crim. P. 11
colloquy. Id. at 428-29. We further rejected his contention that the Supreme Court’s
decision in Blakely v. Washington, 542 U.S. 296 (2004), rendered his sentence
unconstitutional. 389 F.3d at 428. Finally, relying on, inter alia, United States v.
Theodoropoulos, 866 F.2d 587 (3d Cir. 1989), we denied Thomas’ claim of ineffective
assistance of trial counsel without prejudice to his “right to raise the issue in an
appropriate collateral proceeding.” Thomas, 389 F.3d at 429.
On June 20, 2005, the Supreme Court granted Thomas’ subsequent petition for a
writ of certiorari, vacated the judgment of this court, and remanded the case for further
consideration in light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
United States v. Thomas, U.S. , 125 S. Ct. 2953 (2005) (mem.). Thus, upon further
consideration as directed by the Supreme Court, we reaffirm all portions of our prior
decision with respect to Thomas’ conviction, guilty plea, and claim of ineffective
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assistance of counsel, including our discussion of the facts admitted by the defendant, and
incorporate by reference herein those portions of our prior opinion. On the other hand,
having determined that the sentencing issues Thomas has raised are, in light of Booker,
best addressed by the District Court in the first instance, see generally United States v.
Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we will vacate that portion of our judgment
that affirmed the judgment of sentence and remand to the District Court for resentencing.
Compare with United States v. Agnew, 407 F.3d 193, 195 (3d Cir. 2005) (“In vacating
the judgment, the Supreme Court did not indicate any disagreement with our analysis
wherein we affirmed Agnew’s conviction. [Thus], we will again affirm the conviction . .
. [h]owever, having concluded that the sentencing issues based on Booker are best
determined by the District Court in the first instance, we will vacate the sentence and
remand. . . .”).
For the foregoing reasons, we will reaffirm Thomas’ conviction, reaffirm our
denial of his ineffective assistance of counsel claim without prejudice, vacate his
sentence, and remand to the District Court for resentencing in accordance with Booker.
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