United States v. Thomas

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT February 7, 2014
Elisabeth A. Shumaker
UNITED STATES OF AMERICA, Clerk of Court
Plaintiff – Appellee,
v. No. 13-3126
(D.C. No. 2:09-CR-20040-01-MLB-1)
KENNON D. THOMAS, (D. Kansas)
Defendant – Appellant.
ORDER AND JUDGMENT *
Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
In August 2009, Kennon D. Thomas pleaded guilty to a charge of a felon in
possession of a firearm. See 18 U.S.C. § 922(g)(1). His initial Presentence Investigation
Report (PSR) recommended a base offense level of twenty-four based upon his prior
conviction of two crimes of violence.1 See U.S. Sentencing Guidelines Manual
§2K2.1(a)(2) (2012) [hereinafter U.S.S.G.]. But the PSR also credited him with a three-
level reduction for §3E1.1 acceptance of responsibility—giving Thomas a total offense
level of twenty-one.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. Fed. R. App. P. 34(2)(A); 10th Cir. R. 34.1(G). This case is therefore submitted
without oral argument. This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate Procedure
32.1 and Tenth Circuit Rule 32.1.
1
Thomas has two prior felony convictions for fleeing or eluding a law
enforcement officer under Kansas law. See Kan. Stat. Ann. § 8-1568 (1998).
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At the first sentencing hearing, the district court sustained Thomas’s objection that
his previous crimes were not crimes of violence. Without the crimes of violence,
Thomas’s total offense level fell to eleven, which translated to a range of twenty-seven to
thirty-three months in prison. The district court sentenced Thomas to thirty-three months.
The United States timely appealed. United States v. Thomas, 643 F.3d 802 (10th
Cir. 2011). Another panel of this Court found that Thomas’s previous crimes were crimes
of violence. Id. at 806. On remand, the district court scheduled a resentencing hearing.
But Thomas—then out of prison and on supervised release—fled to Tennessee and failed
to appear. Roughly seventeen months later, authorities apprehended him and returned him
to Kansas for resentencing.
At resentencing, the district court reinstated the crimes of violence for a base
offense level of twenty-four. It also removed the previous adjustments for accepting
responsibility. Further, the court imposed a two-level upward adjustment for obstruction
of justice. See U.S.S.G. §3C1.1. The total offense level of twenty-six equated to a
sentencing range of 110–137 months’ imprisonment. The court imposed a 110-month
sentence. Thomas appeals.
Counsel for Thomas filed an Anders brief and requested permission to withdraw.
See United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (“The Supreme Court’s
decision in Anders v. California, 386 U.S. 738 (1967), authorizes counsel to request
permission to withdraw where counsel conscientiously examines a case and determines
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that any appeal would be wholly frivolous.”). Thomas filed a pro se response.2 The
United States declined to submit a brief.
Thomas raises three arguments and, in his Anders brief, counsel raises and
dismisses two additional arguments. We will address each argument in turn. But after a
full review of the record, the Anders brief, and Thomas’s response, we believe the issues
raised by counsel and Thomas are frivolous. Accordingly, we dismiss the appeal and
grant counsel’s motion to withdraw.
First, Thomas argues he received no notice of his resentencing hearing. Without
notice, he claims, he cannot be penalized with upward adjustments at resentencing. We
disagree.
As Thomas presents this argument for the first time on appeal, we review for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). Under
plain-error review, we may correct a plain error that affects substantial rights if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Olano, 507 U.S. at 732.
All inferences from the record show that Thomas knew full well that he was
supposed to report for a resentencing hearing. Instead, he chose to flee the jurisdiction.
For example: (1) the district court docket contains a “Notice of Hearing” for Thomas’s
resentencing;3 (2) Thomas’s sentencing memorandum states that he failed to appear
2
We liberally construe pro se filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam).
3
If Thomas is attempting to argue that he received ineffective assistance of
counsel because his lawyer never told him of the hearing, the proper avenue is not this
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because he feared returning to prison and he felt that he had paid his debt to society; and
(3) Thomas never mentioned any notice defect when he addressed the court at
resentencing. The record contains no indication that Thomas lacked notice of the
resentencing hearing. To the contrary, the record reflects that Thomas knew of the hearing
and willfully fled the jurisdiction to avoid returning to prison. There was no error, and
this argument is frivolous.
Second, Thomas argues that his resentencing violated the Double Jeopardy Clause
of the Fifth Amendment. We disagree.
Once again, Thomas did not raise a double jeopardy challenge below, so we
review for plain error. See United States v. Graham, 305 F.3d 1094, 1100 (10th Cir. 2002)
(reviewing a multiple-punishment argument that was not raised at the district court for
plain error). Without violating double jeopardy, a defendant may be resentenced if his
original sentence has not become final. United States v. DiFrancesco, 449 U.S. 117, 139
(1980); United States v. Smith, 929 F.2d 1453, 1457 (10th Cir. 1991). Finality attaches to
a sentence once the defendant passes from the judiciary’s jurisdiction to executive
custody. Smith, 929 F.2d at 1457. A defendant remains within the judiciary’s jurisdiction
when a statute authorizes the prosecution to appeal the original sentence. Id. Only once
the appeal fails or the time to appeal expires, may a defendant have a “legitimate
expectation in the finality of his original sentence.” Id.
direct appeal. United States v. Trestyn, 646 F.3d 732, 740 (10th Cir. 2011) (“But it is well
established that ineffective assistance of counsel claims should generally be brought in
collateral proceedings, not on direct appeal.”). Therefore, we decline to consider that
possibility.
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Here, 18 U.S.C. § 3742(b) authorized the United States to appeal. The district
court entered the original judgment on December 22, 2009, and the United States timely
filed a notice of appeal on January 19, 2010. See Fed. R. App. P. 4(b)(1)(B) (allowing
thirty days for appeal). Accordingly, no double jeopardy violation occurred because the
sentence was not final.
Third, Thomas argues that he should not have been sentenced as an armed career
criminal under 18 U.S.C. § 924(e) or as a career offender under U.S.S.G §4B1.1. In fact,
he was sentenced as neither. Instead, his base offense level was simply increased under
U.S.S.G. §2K2.1(a)(2) for his two previous felony convictions for crimes of violence.
This claim fails.
A previous panel of this court determined that two of Thomas’s prior convictions
qualified as crimes of violence. Thomas, 643 F.3d at 806. This holding is law of the case,
and we have no reason to disturb it. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183
(10th Cir. 1995) (“Thus, when a case is appealed and remanded, the decision of the
appellate court establishes the law of the case and ordinarily will be followed by both the
trial court on remand and the appellate court in an subsequent appeal.”). The district court
properly enhanced Thomas’s sentence under U.S.S.G. §2K2.1(a)(1). This argument is
frivolous.
Fourth, counsel raises and dismisses a potential challenge to the guidelines
adjustments at resentencing. We review the district court’s application of the sentencing
guidelines de novo. United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006). Failing
to appear for sentencing qualifies as an obstruction of justice. U.S.S.G. §3C1.1 & cmt.
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4(E). If the defendant’s conduct qualifies under §3C1.1, then there is generally no
acceptance of responsibility. §3E1.1 & cmt. 4. Since Thomas failed to appear, the district
court correctly increased his offense level and removed his credit for accepting
responsibility. This argument fails.
Fifth and finally, counsel raises and dismisses a potential challenge to the
procedural and substantive reasonableness of the sentence. We review a sentence’s
reasonableness for an abuse of discretion. United States v. Peugh, 133 S. Ct. 2072, 2080
(2013). Reasonableness review has two components: procedural and substantive review.
See United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011) (explaining that
procedural review ensures the correct application of the guidelines and substantive
review addresses the sentence’s reasonableness against the 18 U.S.C. § 3553(a) factors).
We find that the district court correctly calculated the sentence and the sentence’s length
is reasonable in light of the § 3553(a) factors. This argument fails.
As the arguments presented by counsel and Thomas are frivolous, we dismiss this
appeal and grant counsel’s motion to withdraw.
ENTERED FOR THE COURT
Gregory A. Phillips
Circuit Judge
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