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


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  •      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    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    3