United States v. Derrick Thomas , 585 F. App'x 869 ( 2014 )

Case: 14-10348 Document: 00512853816 Page: 1 Date Filed: 12/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10348
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 2, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
DERRICK ALAN THOMAS,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:13-CR-106-1
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Derrick Alan Thomas challenges his sentence, imposed following his
guilty-plea conviction for possession of stolen mail, pursuant to 18 U.S.C.
§§ 1708 and 2. Thomas claims the court erred by not applying a three-level
reduction for a partially completed offense, pursuant to Sentencing Guidelines
§§ 2B1.1, cmt. n.18 (“In the case of a partially completed offense . . . , the offense
level is to be determined in accordance with the provisions of § 2X1.1 . . . .”),
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 14-10348
and 2X1.1(b)(1) (“If an attempt, decrease by 3 levels . . . .”). Relying on United
States v. John, 597 F.3d 263 (5th Cir. 2010), he asserts: the stolen-mail offense
was merely part of a larger attempted theft or fraud; and the bulk of his
intended theft had not been completed. He further contends the desired
reduction was proper because a substantial portion of uncompleted criminal
activity was not undertaken to cause the intended loss.
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Because Thomas did not raise this issue in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Thomas must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id. He maintains he satisfies each
element of this standard. For the reasons that follow, there was no clear or
obvious error.
Thomas was convicted of possession of stolen mail, and no uncompleted
offenses were considered in calculating his offense level. Accordingly, the
reduction for a partially completed offense was inapplicable. E.g., United
States v. Oates, 122 F.3d 222, 228 (5th Cir. 1997). The case on which Thomas
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No. 14-10348
relies, John, is distinguishable because, in that instance, defendant was
convicted of four completed substantive offenses, but the bulk of the intended
loss amount came from 72 other incomplete or uncompleted, substantive
offenses. John, 597 F.3d at 283. Thomas’ situation is more similar to Oates
than John; Thomas’ underlying offense of possession of stolen mail does not
require actual loss as part of the substantive offense. See United States v.
Osunegbu, 822 F.2d 472, 475 (5th Cir. 1987) (listing elements of possession of
stolen mail); see also John, 597 F.3d at 283; Oates, 122 F.3d at 228. Thomas
incorrectly asserts “the key factor [in a court’s deciding whether to apply the
partially-completed-offense reduction] is the amount of criminal activity the
defendant still has yet to undertake in order to cause the intended loss”; rather,
the focus is “on the substantive offense and the defendant’s conduct in relation
to that specific offense.” United States v. Waskom, 179 F.3d 303, 308 (5th Cir.
1999) (emphasis added).
AFFIRMED.
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