                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2006

USA v. Thomas
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1588




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"USA v. Thomas" (2006). 2006 Decisions. Paper 1459.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1588


                           UNITED STATES OF AMERICA

                                           v.

                                  ELENA THOMAS,
                                            Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                               D.C. Crim. 04-cr-00194
                 District Judge: The Honorable Katharine S. Hayden


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 18, 2005


       Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge


                            (Opinion Filed: March 10, 2006)


                                       OPINION




   *
   The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

        Elena Thomas pleaded guilty to illegally re-entering the United States after being

deported. The District Court sentenced her to 75 months in prison. She now appeals,

claiming that this sentence was unreasonable. We will affirm.

       Thomas was born in Panama in 1952. She visited the United States in 1978 and

received an immigrant visa in 1984. She was convicted of shoplifting in California in

1979 and of larceny in New York in 1982. In 1993, she pleaded guilty in Texas state

court to possession of at least 400 grams of cocaine with intent to deliver. She was

sentenced to 20 years in prison, but was released from custody in 1998 and deported to

Panama. Thomas soon returned to the United States. She was convicted of shoplifting

eight times between 2000 and 2003; she has attempted to steal jewelry, perfume, and

china worth hundreds of dollars from stores in New York and New Jersey. She has used

nineteen different names, giving ten different dates of birth and ten different Social

Security numbers.

       A fingerprint analysis on the occasion of her most recent shoplifting conviction

revealed that she had previously been deported. The government filed a criminal

information against her, charging her with illegal re-entry by a deported alien, in violation

of 8 U.S.C. § 1326(a). As a an aggravated felon, she was eligible for up to 20 years in

prison. Id. § 1326(b). She pleaded guilty in a plea agreement signed on January 23, 2004

and entered on March 29, 2004. Before her sentencing, the Supreme Court decided

United States v. Booker, 543 U.S. 220 (2005), and declared the Sentencing Guidelines

                                             2
unconstitutional as applied. The Court struck 18 U.S.C. § 3553(b)(1), thereby making

application of the Guidelines by the sentencing court advisory only. It left in place §

3553(a), which requires the sentencing court to consider various factors in its sentence

(including the Guidelines) and § 3553(c), which requires the sentencing court to “state in

open court the reasons for its imposition of the particular sentence.” See Booker, 543 U.S.

at 258-60. The Court also struck § 3742(e), which had specified the standard of review to

be applied on appeal, replacing it with a general review for “reasonableness.” Booker,

543 U.S. at 260-62.

       At her sentencing on February 14, 2005, Thomas argued to the District Court that

three factors under § 3553(a) required a sentence beneath the applicable Guidelines range

of 77 to 96 months. First, she offered psychiatric testimony that she suffered from a

depressive disorder, leading to reduced mental capacity. Second, she argued that her

criminal history category overstated the seriousness of her criminal record and that her

theft offenses were less serious than the drug offenses for which that category was

intended. Third, she argued that had she been arrested in a different district, she would

have been offered a more lenient plea bargain. The District Court rejected these

arguments, found that only a long prison sentence would suffice to prevent Thomas from

stealing, and sentenced her to 75 months in prison—at the bottom of the Guidelines

range, minus two months as a credit for time Thomas had served in state custody before

being transferred to federal custody. Thomas argues that the sentence was unreasonable in

that the District Court failed to consider all of the factors enumerated in § 3553(a).

                                              3
       The government argues that we lack jurisdiction to review a sentence within or

below the applicable Guidelines range. We rejected that argument in our recent decision

in United States v. Cooper, No.05-1447, 2006 U.S. App. LEXIS 3453 (3d Cir. Feb. 14,

2006). There, we held that an unreasonable sentence is “imposed in violation of law,” so

that we have jurisdiction under § 3742(a)(1) regardless of where the sentence falls in

relation to the Guidelines range. Cooper at *5-7. The government also argues that a

sentence within or below the applicable Guidelines range is per se reasonable. We

rejected that argument in Cooper as well. Although “a within-guidelines range sentence is

more likely to be reasonable than one that lies outside,” a sentence within the Guidelines

range is not per se reasonable. Id. at *20-21. Instead, the appellant bears the burden of

establishing the unreasonableness of the sentence. Id.

       We require that the District Court give “meaningful consideration” to the §

3553(a) factors, id. at *11, and to any sentencing grounds “properly raised by the parties

which have recognized legal merit and factual support in the record,” id. at *21. The

District Court does not need to recite these factors or make specific findings with respect

to each as long as the record makes clear that the District Court took them into account.

Id. at *12. We apply a “deferential” standard of review to the District Court’s application

of the factors to the facts of the case. Id. at 15.

       Examining the District Court’s findings, we are convinced that the sentence it




                                                4
imposed was reasonable.1 The District Court considered the Guidelines range, its

discretion to depart from that range in fashioning a sentence, the role of § 3553 in

directing its exercise of that discretion, and the goals to be served by the choice of

sentence. It found that Thomas’s extensive history of theft convictions required a lengthy

prison term both for the protection of society and as an appropriate punishment for the

seriousness of her crimes. Its choice of a 75-month sentence was reasonable in light of

Thomas’s widespread, repeated, and calculated offenses.

       Contrary to Thomas’s assertions, the District Court carefully considered her

arguments and the § 3553(a) factors those arguments referenced. It found: that the goal

of rehabilitation would not be appreciably served by a shorter sentence; that Thomas’s

allegedly reduced mental capacity did not excuse her actions; that Thomas’s criminal

history category was an accurate reflection of the “violence to society’s fabric” she had

committed; that Thomas’s sentence was not disproportionate to the sentences given

offenders with similar culpability; and that the geographic diversity of her crimes belied

her claim that prosecution in a non-“fast-track” district operated unfairly towards her.

These findings were appropriately attentive both to the full set of relevant factors and to

the specific facts of Thomas’s case. The District Court more than satisfied its obligations

under § 3553(a).



   1
     We regret that the government chose not to address the actual reasonableness of
Thomas’s sentence in its briefing, instead resting its argument entirely on the
jurisdictional and per se reasonableness bases we have rejected in Cooper.
                                              5
We will affirm the judgment of sentence.
