United States v. Tommie Thomas

Case: 12-10840 Document: 00512495656 Page: 1 Date Filed: 01/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 10, 2014
No. 12-10840
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff– Appellee
v.
TOMMIE RAYMOND THOMAS,
Defendant– Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:12-CR-61-1
Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Tommie Raymond Thomas, federal prisoner # 33447-018, appeals the
district court’s revocation of his eight terms of supervised release and the
resulting sentence of 120 months in prison and a three-year term of supervised
release. For the following reasons, we AFFIRM.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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Thomas’s record excerpts include several items that were not filed in the district
court. “We will not ordinarily enlarge the record on appeal to include material not before the
district court.” Gregory v. Thaler, 601 F.3d 347, 353 (5th Cir. 2010). Consequently, insofar
as Thomas’s filings may be read as including an implied motion to supplement the record with
these items, it is DENIED.
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No. 12-10840
Claims of ineffective assistance of counsel generally “cannot be resolved
on direct appeal when the claim[s have] not been raised before the district court
since no opportunity existed to develop the record on the merits of the
allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006)
(internal quotation marks and citation omitted). Thomas’s ineffective assistance
of counsel claims are not ripe for review because the record is insufficiently
developed to allow consideration at this time, thus, we decline to consider these
claims. To the extent that Thomas raises a substantive claim concerning the
district court’s personal jurisdiction over him, Thomas waived this argument by
raising it for the first time in his reply brief. See Carmona v. S.W. Airlines Co.,
536 F.3d 344, 347 n.5 (5th Cir. 2008) (holding that the appellant waived his right
to appeal an issue because he raised it for the first time in his reply brief);
United States v. Muhammad, 165 F.3d 327, 330 (5th Cir. 1999) (personal, but
not subject matter, jurisdiction can be waived). Additionally, to the extent that
Thomas’s jurisdictional challenge concerns the district court’s subject matter
jurisdiction, his argument is unavailing in light of this circuit’s precedent. See
United States v. Fernandez, 379 F.3d 270, 272-73 (5th Cir. 2004) (affirming
revocation of the appellant’s supervised release by the Northern District of
Texas, which accepted jurisdiction over the appellant from the Western District
of Texas, even though one of the bases for the revocation was a new offense that
the appellant had committed in the Northern District of Texas before the
transfer). See also 18 U.S.C. § 3605.
Thomas raises several sentencing challenges, none of which was presented
to the district court. Although this typically results in the application of the
plain error standard, we nonetheless review de novo those claims that raise the
issue whether his sentence was illegal. See United States v. Thomas, 600 F.3d
387, 388 (5th Cir. 2010).
First, Thomas argues that his consecutive sentences are improper because
the version of 18 U.S.C. § 3583(e) in effect at the time of his offense limited the
2
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No. 12-10840
prison term that could be imposed upon revocation to 36 months. Thomas is
mistaken under our prior jurisprudence. Calculation of a prison term is based
on each individual offense; there is no cap on the total sentence that is derived
from aggregating prison term sentences on multiple counts. See United States
v. Gonzalez, 250 F.3d 923, 927–28 (5th Cir. 2001). Thomas’s argument
concerning § 3583(h) is similarly unavailing because the cases he cites in support
of this argument addressed multiple revocations of a single term of supervised
release, rather than the revocation of multiple terms of supervised release, as is
the case here. See U.S. v. Zoran, 682 F.3d 1060, 1064 (8th Cir. 2012).
The remainder of Thomas’s challenges to his sentence are considered for
plain error only. Relief is unavailable under this standard unless he shows a
clear or obvious error that affected his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). This court has discretion to correct a plain
error but will do so only if it seriously affects the fairness, integrity, or public
reputation of the proceedings. See id.
To the extent that Thomas contends that his sentence was improperly
grounded in the need for just punishment and the seriousness of the offense, the
record rebuts this assertion and shows that the sentence imposed was grounded
in the district court’s consideration of the nature and circumstances of Thomas’s
offenses, his history, and the court’s belief that the public needed to be protected
from him. These are proper bases for a revocation sentence. See 18 U.S.C.
§§ 3553(a)(1) & (a)(2)(C); 18 U.S.C. § 3583(e); United States v. Miller, 634 F.3d
841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011).
Thomas has not shown that the district court plainly erred by choosing to
impose several of his terms of imprisonment to run consecutively. See Gonzalez,
250 F.3d at 927–29. Insofar as Thomas argues that his sentence creates
unwarranted disparities, he cites no instances of similarly situated defendants
who received different sentences, and there is no reason to believe that the
district court ignored this factor. See id. at 930. Finally, Thomas has not shown
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No. 12-10840
plain error in connection with the district court’s classification of certain conduct
as a Grade B violation of his release. See 47 U.S.C. § 223; U.S.S.G. § 7B1.1(a)(2).
The judgment of the district court is AFFIRMED.
4