United States v. Thomas ( 2023 )

Case: 22-50420 Document: 00516927760 Page: 1 Date Filed: 10/11/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50420
Summary Calendar FILED
____________ October 11, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Jody Charles Thomas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-94-1
______________________________
Before Jolly, Higginson, and Duncan, Circuit Judges.
Per Curiam: *
Jody Charles Thomas was convicted following a jury trial of
conspiracy to possess with intent to distribute 50 grams or more of crack
cocaine (Count 1), maintaining a drug premises (Counts 2, 4-6), maintaining
a drug premises within 1,000 feet of a school (Count 3), money laundering
(Count 7), bank fraud (Count 10), aggravated identity theft (Count 11),
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50420
conspiracy to retaliate against a witness (Count 12), aiding and abetting
retaliation against a witness (Count 13), and aiding and abetting the
possession of a firearm in furtherance of a crime of violence (Count 14).
Following this court’s grant of authorization to file a successive 28 U.S.C.
§ 2255 motion based on United States v. Davis, 139 S. Ct. 2319, 2336 (2019),
Thomas filed a successive § 2255 motion arguing that his conviction on
Count 14 should be vacated, which the district court granted. The district
court then vacated his sentence, and Thomas was ultimately resentenced to
the same total sentence of 504 months and six years of supervised release.
On appeal, Thomas first argues that there is a clerical error in his
written judgment as to his conviction for Count 13. Specifically, he asserts
that the written judgment includes a citation to 18 U.S.C. § 371 for the Count
13 offense, while the superseding indictment charged him with aiding and
abetting in the retaliation against a witness in violation of 18 U.S.C.
§§ 1513(b)(2) and 2. We agree with the parties that there is a clerical error in
Thomas’s written judgment that may be corrected under Federal Rule of
Criminal Procedure 36. See United States v. Cooper, 979 F.3d 1084, 1088-89
(5th Cir. 2020).
Thomas next argues that a “search” condition of his supervised
release should be excised from the written judgment because the language of
the condition in the written judgment was more onerous than what was
pronounced at his resentencing, and he had no notice or opportunity to
object. The search condition is not required by 18 U.S.C. § 3583(d) and is
therefore discretionary and required pronouncement. See United States v.
Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc). At the sentencing
hearing, the district court stated that it was imposing “the search condition
of supervision within the Western District of Texas.” The district court’s
reference to the search condition, which is contained in a well-known district-
wide order, was sufficient to provide advance notice of the condition and to
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constitute oral pronouncement. See id. at 561. Therefore, there is no conflict
between the written and oral judgments. See United States v. Martinez, 15
F.4th 1179, 1181 (5th Cir. 2021)
Lastly, Thomas requests that this court consider several of the
ineffective assistance of counsel claims presented in his initial § 2255 motion
filed in 2012. He does not cite to any relevant circuit authority or legal
standards in support of these claims and has thus abandoned these claims.
See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010). Further,
to the extent Thomas seeks our authorization to file a successive § 2255
motion, his motion is DENIED, as his proposed successive claims are
barred by 28 U.S.C. § 2244(b)(1). See In re Bourgeois, 902 F.3d 446, 447-48
(5th Cir. 2018) (holding that § 2255(h) incorporates § 2244(b)(1)’s strict
relitigation bar).
For the foregoing reasons, we AFFIRM the judgment of the district
court and REMAND the case for the limited purpose of correcting the
written judgment to excise the citation to 18 U.S.C. § 371 from Count 13. See
Fed. R. Crim. P. 36.
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