United States v. Thomas

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 7, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-8070
v. D. W yoming
TROY TH OM AS, (D.C. No. 04-CR-119-ABJ)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
Troy Thomas was sentenced to 151 months’ imprisonment after pleading
guilty to drug charges. His counsel has filed an Anders brief, see Anders v.
California, 386 U.S. 738 (1967), and a motion to withdraw as counsel. The brief
raises two issues: (1) that he should not have been sentenced as a career offender
because one of the offenses used to establish that status— possession of a shank in
*
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
prison— is not a crime of violence, and (2) that his sentence was unreasonable.
The brief explains, however, why the two issues have no merit. W e have
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. After reviewing the
record, we agree that there are no meritorious issues for appeal, grant the motion
to withdraw, and dismiss the appeal.
On July 12, 2004, M r. Thomas pleaded guilty in the United States District
Court for the District of W yoming to one count of conspiracy to possess with
intent to distribute, and to distribute, cocaine, in violation of 21 U.S.C. §§ 846and 841(a)(1), (b)(1)(C), and to one count of possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C § 2.
M r. Thomas’s presentence report (PSR ) determined that he was a career offender
under United States Sentencing Guidelines (USSG ) § 4B1.1, based on a prior drug
conviction (conspiracy to distribute cocaine) and a prior federal conviction for
possession of a prohibited object in prison, 18 U.S.C. § 1791(a)(2). The PSR
calculated the appropriate Guidelines range for M r. Thomas’s sentence to be 151
to 188 months’ imprisonment.
M r. Thomas objected to the PSR’s determination that he was a career
offender on the ground that his possession of a prohibited object in prison was not
a crime of violence under the Guidelines. At sentencing, however, his counsel
acknowledged that the judgment in that case stated: “N ature of Offense:
Possession of a prohibited object, to wit, a makeshift metal object commonly
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referred to as a shank, in a federal correctional institution.” R. Vol. III at 10.
The district court rejected his objection, adopted the Guidelines range calculated
by the PSR, and imposed a sentence of 156 months’ imprisonment. M r. Thomas
appealed the sentence, and the government agreed to a remand for resentencing
because the district court had applied the Guidelines mandatorily, in violation of
United States v. Booker, 543 U.S. 220 (2005).
At resentencing the district court again rejected M r. Thomas’s objection to
his categorization as a career offender and adopted the PSR’s calculated
Guidelines range of 151 to 188 months’ imprisonment. It considered several
mitigating factors under 18 U.S.C. § 3553(a), such as M r. Thomas’s difficult
childhood and his mother’s drug addiction, and determined that M r. Thomas
required “special deterrence” to prevent him from committing “further violations
of the law for a lengthy period of time.” R. Vol. IV at 44. It then imposed a
sentence of 151 months’ imprisonment, the bottom of the Guidelines range.
M r. Thomas appealed again. In compliance with Anders, counsel provided
M r. Thomas with a copy of his appellate brief and M r. Thomas filed a pro se
reply. The two issues raised in the Anders brief are whether possession of a
prohibited object (a “shank”) while in prison constitutes a crime of violence under
the Guidelines, and whether M r. Thomas’s sentence was reasonable. In his reply
M r. Thomas argues only that he should not have been categorized as a career
offender.
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Under U SSG § 4B1.1(a):
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
There is no question that conditions (1) and (2) were satisfied and that
M r. Thomas has a prior felony conviction of a controlled-substance offense. The
sole question before us is whether his prison conviction was for a crime of
violence.
The Guidelines’ definition of crime of violence includes “any offense under
federal or state law , punishable by imprisonment for a term exceeding one year,
that . . . involves conduct that presents a serious potential risk of physical injury
to another.” Id. § 4B1.2(a)(2). W e agree with the other circuits to address the
matter that possession of a prohibited weapon in prison is a crime of violence
under § 4B1.2(a). See United States v. Kenney, 310 F.3d 135, 137 (3d Cir. 2002)
(possession of a w eapon in prison “inherently . . . presents a serious potential risk
of physical injury to other persons in the prison” and is therefore a crime of
violence) (internal quotation marks omitted); United States v. Vahovick, 160 F.3d
395, 397 (7th Cir. 1998) (“Possession of a w eapon in prison, by itself, implies a
violent act. . . . [T]here is simply no acceptable use for a weapon by an inmate in
a prison for there always exists in such possession the serious potential risk of
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physical injury to another.” (internal quotation marks omitted)); see also United
States v. Patton, 114 F.3d 174, 177 (11th Cir. 1997) (“Conveying a weapon in
federal prison” entails a “serious risk of physical injury, making it a crime of
violence under the Guidelines.”); United States v. Young, 990 F.2d 469, 472 (9th
Cir. 1993) (possession of a “shank” in violation of California statute prohibiting
possession of deadly weapons in prison is a crime of violence under the
Guidelines). Indeed, we have held that conveying a weapon in prison is a
“violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e),
because it is “‘conduct that presents a serious potential risk of physical injury to
another,’” United States v. Rom ero, 122 F.3d 1334, 1340-41 (10th Cir. 1997)
(quoting 18 U.S.C. § 924(e)(2)(B)). The quoted language from § 924(e)(2)(B) is
identical to the language w e rely on in § 4B1.2(a)(2).
As for the reasonableness of M r. Thomas’s sentence, we recently held that
if a district court “properly considers the relevant Guidelines range and sentences
the defendant within that range, the sentence is presumptively reasonable. The
defendant may rebut this presumption by demonstrating that the sentence is
unreasonable in light of the other sentencing factors laid out in § 3553(a).”
United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). W e have rejected
M r. Thom as’s only challenge to the calculation of the Guidelines range, and we
see no reason why the sentence imposed was unreasonable.
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W e AFFIRM M r. Thomas’s sentence and GRANT counsel’s motion for
w ithdraw al. M r. Thomas’s motion for appointment of new counsel is DENIED .
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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