                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-16-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2139




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"USA v. Thomas" (2002). 2002 Decisions. Paper 572.
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                                                 NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                             NO. 01-2139


                       UNITED STATES OF AMERICA

                                  v.

             KEVIN THOMAS, a/k/a MICHAEL ALLEN THOMAS

                            Kevin Thomas,
                                     Appellant


         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                   (D.C. Crim. No. 00-cr-00700)
               District Judge: Hon. Jay C. Waldman


            Submitted Under Third Circuit LAR 34.1(a)
                        September 12, 2002

        Before:   SLOVITER and RENDELL, Circuit Judges, and
                      McCLURE,* District Judge

                     (Filed: September 13, 2002)



                         OPINION OF THE COURT

__________________

*    Hon. James F. McClure, Jr., United States District Court for the Middle District of
     Pennsylvania, sitting by designation.SLOVITER, Circuit Judge.

     Appellant Kevin Thomas, who pled guilty to possession of a firearm by a
convicted felon, appeals from the sentence. He challenges the District Court’s refusal to
appoint him new counsel, its levy of a fine at sentencing, and the failure to fully credit his
time served in a state facility towards that of his federal sentence. We will affirm.
                                I.
     The facts of this case are not in dispute. On May 1, 2000, after a high-speed
pursuit, Philadelphia police apprehended Thomas and recovered a Glock 17 semi-
automatic pistol that he had thrown from his vehicle during the chase. The firearm
matched the shoulder holster Thomas was wearing when he was apprehended. He was
indicted for violation of 18 U.S.C. 922(g)(1), knowing possession of a firearm, in and
affecting commerce, by a convicted felon. The indictment listed four prior violent felony
convictions, exposing Thomas to enhancement under the Armed Career Criminal Act, 18
U.S.C. 924(e)(1). Appointed counsel, the Federal Defender Association, moved to
withdraw as counsel. The District Court granted the motion and appointed Christopher
Warren as Thomas’ defense counsel. Thomas pled guilty, pursuant to a written plea
agreement, on January 29, 2001.
     In April of 2001, Thomas wrote to the District Court, requesting new counsel on
the ground that Warren was not preparing for the sentencing hearing in a manner
satisfactory to him. The basis for his dissatisfaction was counsel’s failure to collaterally
attack Thomas’ 1986 robbery conviction (one of the four prior convictions listed in the
indictment) and to request a hearing under United States v. Garcia, 544 F.2d 681 (3d Cir.
1976), challenging the evidentiary sufficiency of the proof of conviction as hearsay.
Thomas also complained of Warren’s failure to subpoena certain documents relevant to
that conviction pursuant to the collateral attack. Id. at 683-84. In response, the
government attached a certified copy of Thomas’ robbery conviction to its Sentencing
Memorandum to demonstrate that it was not hearsay and thus could not fall under Garcia.
     At the sentencing hearing, the District Court denied Thomas’ request because it
found no good cause for the appointment of new counsel. The District Court reasoned
that counsel’s replacement was unwarranted since any competent attorney would have
concluded, as did Warren, that Thomas had no right to either a Garcia hearing or a
collateral attack on a state court conviction in the context of a federal sentencing hearing.
     The District Court assigned Thomas a criminal history category of V as an armed
career criminal under 18 U.S.C. 924(e)(1) with an offense level of 30 and sentenced
him to 180 months incarceration (the guideline minimum), a fine of $1,500, a $100
special assessment, and five years supervised release. The District Court also ordered that
Thomas would be credited with federal time served and, if allowed by law, state time
served as well. Thomas filed a timely notice of appeal on May 8, 2001.
                               II.
     The District Court had subject matter jurisdiction under 18 U.S.C. 3231. This
court has jurisdiction under 28 U.S.C. 1291. We review the District Court’s denial of
new counsel under an abuse of discretion standard. United States v. Goldberg, 67 F.3d
1092, 1097 (3d Cir. 1995). Thomas’ challenge to the District Court’s imposition of a fine
is reviewed for plain error as it was not raised at the sentencing hearing. United States v.
Torres, 209 F.3d 308, 313 (3d Cir. 2000).
                               III.
     Thomas’ argument that he was entitled to appointment of new counsel at his
sentencing hearing is premised, as it was at the hearing, on two contentions: (1) that his
counsel failed in his duties by refusing to move for a Garcia hearing and (2) that his
counsel was obliged, when requested, to collaterally challenge his 1986 robbery
conviction at the sentencing hearing, but declined to do so. Both claims are predicated on
Thomas’ contention that the 1986 robbery conviction, which was one of the convictions
that led to his designation as an armed career criminal with the consequent sentencing
enhancement, was not in fact for robbery but for receiving stolen property.
     In Garcia, a pre-guidelines case, this court upheld the use of hearsay from pre-
sentence reports and noted that the trial court had given the defendant an opportunity to
have an evidentiary hearing on challenged information. Thomas, however, was not
sentenced on the basis of hearsay. The 1986 conviction (as well as his other three prior
convictions) was proven to the District Court via certified copies of Thomas’ judgment
and commitment orders. Certified copies of court documents are not hearsay, and
therefore Garcia is inapplicable.
     Similarly, Thomas’ claim based on his attorney’s failure to launch a collateral
attack on the 1986 robbery conviction has no legal support. In Custis v. United States,
511 U.S. 485, 496-97 (1994), the Supreme Court held that a defendant may not launch a
collateral attack on a prior conviction used for enhancement under the Armed Career
Criminal Act in the absence of a claim that the conviction was obtained in violation of the
right to counsel. Thomas makes no such claim. Thomas’ reliance on United States v.
Hernandez, 218 F.3d 272 (3d Cir. 2000), is equally misplaced as that case centered on the
use of less-than-reliable documentation to establish the predicate felonies, whereas, as
previously noted, in the instant appeal the predicate felony at issue was established via a
certified copy of the order of commitment.
     Moreover, as the District Court noted, the federal sentencing hearing is not an
appropriate venue for the prosecution of such an attack. Thomas’ remedy is to seek to
correct the record in the state court where the conviction was obtained. A district court
need not grant a request for new counsel unless there is "good cause" to do so. Goldberg,
67 F.3d at 1098, citing United States v. Welty, 674 F.2d 185 (3d Cir. 1982). We agree
with the District Court that any competent attorney would conclude, as Warren did, that
Thomas could not collaterally attack his 1986 robbery conviction in his federal sentencing
proceeding, and therefore the District Court did not abuse its discretion by failing to
replace Thomas’ attorney for refusing to argue the claims Thomas asserts.
     Finally, we reject Thomas’ claim that the District Court clearly erred by assessing
him a fine of $1,500. Under U.S.S.G. 5E1.2(a), a district court is required to impose a
fine in all cases except those in which "the defendant establishes that he is unable to pay
and is not likely to become able to pay any fine." In such cases, the defendant bears the
burden of proving he is unable to pay the fine. Torres, 209 F.3d at 312. The District
Court conducted such an inquiry into Thomas’ ability to pay and concluded that, given
Thomas’ court-ordered participation in the Inmate Financial Responsibility Program for
the duration of his 180 month sentence (minimum income $300 per annum) and the
anticipated minimum wage employment he would be engaged in during his period of
supervised release (estimated $2,000 per annum discretionary income), he would be more
than capable of paying the $1,500 fine. We see no error in the District Court’s imposition
of the $1,500 fine.
                               IV.
     For the foregoing reasons, we will affirm the judgment of the District Court.
__________________

TO THE CLERK:

                              Please file the foregoing opinion.


                              /s/ Dolores K. Sloviter
                              Circuit Judge
