                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2004

USA v. Thomas
Precedential or Non-Precedential: Precedential

Docket No. 03-4447




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                                                 PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 03-4447


                UNITED STATES OF AMERICA

                                v.

                     MARSHAUN THOMAS
                         Appellant


          On Appeal from the United States District Court
                    for the District of New Jersey
                      (D.C. No. 01-cr-00058-1)
          District Judge: Honorable Katharine S. Hayden



            Submitted Under Third Circuit LAR 34.1(a)
                        October 7, 2004

  Before: SLOVITER, VAN ANTWERPEN, and COWEN, Circuit
                         Judges.

                   (Filed: November 26, 2004)

                      OPINION OF THE COURT

Timothy M. Donohue
Arleo & Donohue
West Orange, N.J. 07052

      Attorney for Appellant

Christopher J. Christie
 United States Attorney
George S. Leone
  Chief, Appeal Division
Ricardo Solano, Jr.
Office of United States Attorney
Newark, N.J. 07102

       Attorneys for Appellee


SLOVITER, Circuit Judge.

       Marshaun Thomas appeals from his conviction and sentence
following a guilty plea. Finding no error, we will affirm.

                                   I.
        On September 26, 2002, Thomas pled guilty to participating in
a racketeering enterprise in violation of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). The
predicate racketeering acts committed by Thomas supporting his RICO
conviction were the felony murder of Alex Irizarry on August 12, 1998
and a bank robbery on October 30, 2000. After accepting his guilty plea,
the District Court sentenced Thomas to 360 months of incarceration, but
acceded to Thomas’ request that he be credited for the thirty months that
he had already served in State custody.

        Following entry by the District Court of its final order, Thomas’
counsel filed an appellate brief in this court pursuant to
Anders v. California, 386 U.S. 738 (1967), which holds that if appointed
counsel, after a conscientious examination of the case, finds an appeal
to be wholly frivolous, s/he must advise the court and request permission
to withdraw. Defense counsel also has the responsibility of filing a brief
referring to anything in the record that may arguably support an appeal.
386 U.S. at 744. We have stated that “[t]he duties of counsel when
preparing an Anders brief are (1) to satisfy the court that counsel has
thoroughly examined the record in search of appealable issues, and (2)
to explain why the issues are frivolous.” United States v. Youla, 241
F.3d 296, 300 (3d Cir. 2001).

        In his Anders brief, Thomas’ counsel averred that upon a
complete review of the record he concluded that there are no non-
frivolous issues for appellate review. Further, in order to discharge the
duty to cite to anything in the record that may arguably support an
appeal, counsel’s Anders brief noted that Thomas applied for a
downward departure but that the District Court, although recognizing




                                    2
that it had the authority to depart from the first-degree murder guideline1
where the defendant did not cause the death knowingly or intentionally,
found that Thomas’ conduct was within the heartland of the guideline.
Likewise, the District Court, acknowledging that it had authority to take
into account various “discouraged sentencing factors” in considering a
downward departure (here, Thomas’ asserted mental and emotional
conditions and his limited education and vocational skills), held that it
would not exercise this discretion to grant a downward departure in
Thomas’ case.2 Finally, counsel’s Anders brief also referenced Thomas’
guilty-plea hearing--although counsel maintained that the Fed. R. Crim.
P. 11 proceeding was sufficient in all respects.

        Appellate counsel then requested permission to withdraw.
Further, as required by Anders, counsel gave Thomas notice of his brief
and advised him that he had the opportunity to file a pro se brief.3
Thereafter, Thomas filed a pro se brief raising several issues. First,
Thomas contends that Blakely v. Washington, __ U.S. __, 124 S. Ct.
2531 (2004), precludes the application of U.S.S.G. § 2A1.1 to his case.
Second, he complains that his Fed. R. Crim. P. 11 hearing was deficient
in several respects. Finally, he raises an ineffective assistance of counsel
claim.

                                II.
        U.S.S.G. § 2A.1.1, termed “First Degree Murder,” provides a


        1
            See U.S.S.G. § 2A1.1 cmt. 1.


        2
        It is axiomatic that this court “lack[s] jurisdiction to review
a refusal to depart downward when the district court, knowing it
may do so, nonetheless determines that departure is not warranted.”
United States v. M cQuilkin, 97 F.3d 723, 729 (3d Cir. 1996).
Thus, the District Court’s refusal to grant Thomas a downward
departure on these bases cannot support an appeal.


        3
        In fact, upon review of the Anders brief, this court notified
Thomas of the deadline for filing his pro se brief. The government
correctly notes that Thomas filed his brief well after this deadline.
However, we decline the government’s invitation to hold the issues
raised by Thomas in his pro se brief procedurally defaulted and will
instead address Thomas’ pro se brief on the merits.

                                     3
base offense level of 43.4 Due to Thomas’ admitted murder of Irizarry,
the District Court used this guideline in establishing Thomas’ base
offense level.

        In Blakely, the Supreme Court of the United States, applying the
rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(holding that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt”), held unconstitutional the application to Ralph Blakely of the
State of Washington’s sentencing guidelines. If Blakely were arguably
applicable to this case, we would delay its disposition until the Supreme
Court decides the two cases pending before it in United States v. Booker,
375 F.3d 508 (7th Cir. 2004), cert. granted, __ U.S. __, 125 S. Ct. 11
(2004) (mem.), and Fanfan v. United States, No. 03-47, 2004 WL
1723114 (D. Me. June 28, 2004), cert. granted, __ U.S. __, 125 S. Ct. 12
(2004) (mem.).

        However, the Blakely opinion excepts from its scope sentences
imposed “on the basis of the facts . . . admitted by the defendant.” 124
S. Ct. at 2537. There are at least four possible interpretations of the
language “facts . . . admitted by the defendant.” First, that language
could refer to facts set forth in the indictment to which the defendant
pled guilty. Second, it could refer to facts set forth in the written plea
agreement entered into by the defendant. Third, it could be limited to
the facts necessary to prove a violation of the offense charged in the
indictment. Fourth, it could refer to facts admitted in the colloquy with
the District Court. See United States v. Leachman, 309 F.3d 377, 384
(6th Cir. 2002) (finding no violation of Apprendi where defendant “pled
guilty to an indictment that specified the amount of drugs”); United
States v. Doe, 297 F.3d 76, 88 (2d Cir. 2002) (“[A]s Doe’s indictment
did not properly charge drug quantity, the fact of his plea alone cannot
be construed to convey an admission of drug quantity.”); United States


       4
        Because Thomas did not lodge a Sixth Amendment
challenge to the Guidelines or the applicability of U.S.S.G. § 2A1.1
in the District Court, we review for plain error. United States v.
Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc); see also Fed.
R. Crim. P. 52(b).




                                    4
v. Henry, 282 F.3d 242, 248 (3d Cir. 2002) (suggesting that facts
admitted by defendant during plea colloquy may be used to determine
sentence without offending rule of Apprendi); United States v. Lujan,
268 F.3d 965, 969 (10th Cir. 2001) (applying Apprendi, stating: “[t]he
indictment here did allege possession of a quantity sufficient for the
mandatory minimum sentence that was imposed, and by pleading guilty
to Count 1 of the indictment Mr. Lujan of course waived the right to
have that fact determined by a jury”); United States v. Rosendary, 152
F. Supp. 2d 835, 839 (W.D. Pa. 2001) (stating that sentencing court can
rely on facts admitted by defendant in plea agreement in determining
sentencing without running afoul of rule of Apprendi).

        In this case we need not decide which of the four possible
interpretations is encompassed by the Blakely exception because all four
are present. The Information, which is the document to which Thomas
pled guilty, states:

       On or about August 12, 1998, at Jersey City, in the
       District of New Jersey and elsewhere, defendant
       MARSHAUN THOMAS, a/k/a “S,” a/k/a “Verb,” a/k/a
       “Shawney,” while engaged in an attempt to commit
       robbery, and in the flight therefrom, did cause the death
       of Alex Irizarry, in violation of N.J.S.A. Sections 2C:11-
       3(3) and 2C:2-6.

App. at 17.

       The Plea Agreement between the government and Thomas
incorporated the allegation of the killing of Alex Irizarry as follows:

       RACKETEERING ACT 1 (Felony-Murder of Alex
       Irizarry), in which it is charged that on or about August
       12, 1998, at Jersey City, New Jersey, in the District of
       New Jersey and elsewhere, defendant Marshaun Thomas
       while engaged in an attempt to commit robbery, and in
       the flight therefrom, did cause the death of Alex Irizarry,
       in violation of N.J.S.A. Sections 2C:11-3(3) and 2C:2-6.

That Plea Agreement was entered on the District Court’s docket on
September 26, 2002, and was presented to this court with the
government’s letter dated October 7, 2004.

       The death of Irizarry was one of the two predicate acts for the


                                   5
RICO violation charged in the Information.

        Finally, Thomas admitted all of the facts relevant to that charge
in the colloquy with the District Court, as follows:

       THE COURT: On August 12, 1998 were you in a car
       with three other members of VSOP [Van Nostrand
       Soldiers Out Politicking] and was it decided that you
       would commit a robbery of certain individuals who were
       standing on the street corner in Jersey City, New Jersey?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: Were you armed with a handgun at the
       time?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: Did you exit the car and walk in the
       direction of the individuals whom you intended to rob?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: Did you approach the individuals and did
       you draw your handgun and demand that one or more of
       them turn over their property to you?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: At the time that you drew your handgun
       on these people did you know that your gun was loaded?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: When you demanded property from these
       people did one of them turn in your direction and at that
       moment did you fire your gun at him?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: At the time that you fired your gun were
       you a short distance away from this person?



                                   6
       THE DEFENDANT: Yes, your Honor.

       THE COURT: Did you know that you shot this person?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: After shooting this person did you run
       back to the car and did you and the other three VSOP
       members drive away from the scene?

       THE DEFENDANT: Yes.

       THE COURT: Did you give the gun to one of the other
       VSOP members following the shooting?

       THE DEFENDANT: Yes.

       THE COURT: At some time following the shooting did
       you learn that the person you shot had died from his
       injury?

       THE DEFENDANT: Yes.

App. at 45-46. Thus, although Thomas maintains that Blakely bars the
application of U.S.S.G. § 2A1.1 to his case because neither the facts he
pled to in the plea agreement nor the admissions he made during the Fed.
R. Crim. P. 11 hearing established the requisite elements of first degree
murder, it is apparent that Thomas’ contention is without merit.

         Even if we accept Thomas’ position that he did not admit to an
intentional killing, Application Note 1 to Section 2A1.1 (which is termed
“First Degree Murder”) makes patent that the guideline may be
applicable in cases where death results during the commission of certain
felonies, including robbery. See also United States v. Pearson, 203 F.3d
1243, 1275-76 (10th Cir. 2000). Therefore, the facts admitted by
Thomas amply supported the District Court’s application of U.S.S.G. §
2A1.1. Cf. Blakely, 124 S. Ct. at 2541 (“When a defendant pleads
guilty, the State is free to seek judicial sentence enhancements so long
as the defendant either stipulates to the relevant facts or consents to
judicial factfinding.”). In sum, even if Blakely has some impact on the
Sentencing Guidelines, a question we need not decide at this time, the
District Court’s application of Section 2A1.1 at sentencing did not



                                   7
violate Thomas’ rights under the Sixth Amendment.5

                                    III.
        Next, Thomas contends that his Fed. R. Crim. P. 11 colloquy was
deficient in several respects. First, he asserts that the plea colloquy was
insufficient because he was not informed of the elements necessary to
establish the charged offenses. Specifically, Thomas complains that the
District Court failed to explain adequately the mens rea element of
felony murder. See generally Fed. R. Crim. P. 11(b)(1)(G).6 Our review
of the record, however, belies this contention. Rather, the record shows
that the District Court carefully informed Thomas of all the elements of
felony murder under the relevant New Jersey statutes.

        Specifically, at the behest of the District Court, the Assistant
United States Attorney prosecuting the case set forth for Thomas the
essential elements of felony murder under N.J. Stat. Ann. § 2C:11-3:

       First. That the defendant act[ing] either alone or with
       one or more other persons was engaged in an attempt to
       commit the crime of robbery. Second. That during the
       course of this robbery or attempted robbery, the
       defendant or any other person caused the death of a
       person other than one of the participants. And finally,
       that the defendant acted knowingly and willfully in
       committing or attempting to commit the underlying
       robbery.

App. at 41-42 (emphasis added). With the elements of felony murder--
including the mens rea element--thusly disclosed, the District Court
proceeded to inquire of Thomas whether he committed a knowing and
purposeful robbery that resulted in the death of the victim. See supra,
Section II. Thus, the record shows that Thomas was properly informed
of the mens rea element of the predicate RICO act felony murder.


       5
       To be perfectly clear, we take no position on the post-
Blakely constitutionality of the Guidelines.


       6
       As mentioned above, the government charged Thomas with
felony murder, as defined under New Jersey statute, see N.J. Stat.
Ann. § 2C:11-3(3), as a predicate RICO act.


                                    8
        Thomas also claims that he should have been advised of possible
defenses, such as voluntary intoxication, during his plea colloquy. The
decisional law, however, is simply to the contrary. United States v.
Broce, 488 U.S. 563, 573-74 (1989) (“Relinquishment derives not from
any inquiry into a defendant’s subjective understanding of the range of
potential defenses, but from the admissions necessarily made upon entry
of a voluntary plea of guilty. The trial court complied with Rule 11 in
ensuring that respondents were advised that, in pleading guilty, they
were admitting guilt and waiving their right to a trial of any kind.”).

        In sum, Thomas’ plea hearing fully conformed with the strictures
of Fed. R. Crim. P. 11. We therefore decline to overturn his conviction
and sentence on that basis.

                                    IV.
        Finally, Thomas asserts that trial counsel provided ineffective
assistance and thereby rendered his guilty plea involuntary. Hill v.
Lockhart, 474 U.S. 52, 58 (1985); Strickland v. Washington, 466 U.S.
668, 688 (1984). However, it is well-established that ineffective
assistance of counsel claims are generally not entertained on a direct
appeal. United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).
Rather, as this court has held repeatedly, “the proper avenue for pursuing
such claims is through a collateral proceeding in which the factual basis
for the claim may be developed.” United States v. Theodoropoulos, 866
F.2d 587, 598 (3d Cir. 1989) (citations omitted).

        Moreover, Thomas’ Strickland claim does not fit into that narrow
class of ineffectiveness claims amenable to review on direct appeal. See,
e.g., Headley, 923 F.2d at 1084; Gov’t of Virgin Islands v. Zepp, 748
F.2d 125, 133 (3d Cir. 1984). Rather, Thomas’ ineffective assistance of
counsel claim is simply premature and thus we will dismiss it without
prejudice to Thomas’ right to raise the issue in an appropriate collateral
proceeding.

                                    V.
       For the reasons set forth above, we will affirm the District
Court’s judgment of conviction and sentence and dismiss without
prejudice the appeal to the extent that it claims ineffective assistance of
counsel.




                                    9
