                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-3549
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   TRAVIS THOMAS,
                                   also known as Mush,
                                                  Appellant
                                    _______________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. No. 2-16-cr-00324-01)
                        District Judge: Hon. Susan D. Wigenton
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 11, 2018

           Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges

                                  (Filed: October 9, 2018)
                                     _______________

                                        OPINION ∗
                                     _______________




       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Travis Thomas appeals his sentence after pleading guilty to drug-related charges.

We will affirm.

I.     BACKGROUND

       A.     Indictment And Guilty Plea

       A grand jury in Newark, New Jersey, indicted Thomas on one count of conspiracy

to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846, and seven

counts of distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and

18 U.S.C. § 2. The indictment also named two co-conspirators, Jason Wheeler, who was

charged in six of the counts, and Sterling McCoy, who was charged in three of the

counts.

       Wheeler and McCoy each pled guilty to the conspiracy charge, pursuant to plea

agreements with the government. The Court sentenced Wheeler to 24 months of

imprisonment to be followed by three years of supervised release, and it sentenced

McCoy to 60 months imprisonment to be followed by five years of supervised release.

Thomas, on the other hand, chose to proceed to trial.

       The Court commenced jury selection for Thomas’s trial. But before it completed

that task, Thomas had a change of heart; he pled guilty to all eight counts without a plea

agreement.




                                             2
       B.     Sentencing Hearing

       A presentence report (“PSR”) was prepared, and it recommended applying the

career offender enhancement pursuant to United States Sentencing Guidelines

(“U.S.S.G.” or “guidelines”) § 4B1.1(b)(1). It identified two of Thomas’s prior

convictions as qualifying offenses: a conviction for aggravated assault with a deadly

weapon and a conviction for distribution of a controlled dangerous substance, both under

New Jersey law. But the PSR did not list the particular statutory subsections of Thomas’s

prior convictions.

       With the career offender enhancement, the guidelines offense level was 37, but the

PSR then applied a two-point reduction for acceptance of responsibility pursuant to

guidelines § 3E1.1, leaving a total offense level of 35. The PSR recommended a criminal

history category of VI, also because of the career offender enhancement. The resulting

recommended guidelines imprisonment range for Thomas was 292 to 365 months.

       Thomas opposed the suggested application of the career offender enhancement.

Although he conceded that his controlled substance conviction was a qualifying offense,

he objected to the PSR’s classification of his conviction for aggravated assault with a

deadly weapon as being categorically a crime of violence. He also objected to the PSR’s

failure to include an additional one-point reduction under § 3E1.1(b) for his acceptance of

responsibility.

       After considering the parties’ arguments and submissions, the District Court

concluded that the career offender enhancement applied to Thomas because “the

conviction for aggravated assault with a deadly weapon ... is unequivocally an act of


                                             3
violence[,]” especially given “the background and the factual information that is set forth

in [the PSR.]” (App. at 358.) The Court provided no other analysis on that issue.

       The District Court then heard arguments from Thomas and the government

relating to the traditional sentencing factors under 18 U.S.C. § 3553(a). Over Thomas’s

objection, the Court permitted the government to play a jailhouse recording in which

Thomas said that, after his time in prison, he would be “shaking and baking” again.

(App. at 382.) The government argued that the quoted phrase meant “going out and

continuing to sell drugs or continuing to engage in the other criminal activities with

which he was involved.” (App. at 382.)

       After considering those arguments, the Court sentenced Thomas to 210 months of

imprisonment, to be followed by eight years of supervised release, and imposed a special

assessment of $800. It exercised its discretion to impose a sentence below the guidelines

range and explained that the downward variance was warranted by Thomas’s history,

background, and various mental and emotional issues. The Court also commented that

Wheeler and McCoy had received different sentences because their roles in the drug

conspiracy were different than Thomas’s and because their criminal histories were also

different than his. It denied Thomas’s request that it recommend mental health and drug

addiction counseling during his incarceration, but it encouraged Thomas himself to ask

for and seek those services from the Bureau of Prisons.

       Thomas timely appealed.




                                             4
II.    DISCUSSION 1

       Thomas raises four arguments concerning his sentence. As explained below, all of

them are unpersuasive. 2

       A.     The District Court Correctly Sentenced Thomas Under The
              Guidelines’ Career Offender Enhancement.

       “Whether a conviction constitutes a crime of violence for purposes of the career

offender [g]uideline is a question of law over which we exercise plenary review.” United

States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017) (alteration and citation omitted).

The only conviction of Thomas’s at issue in this appeal is the one under New Jersey law

for aggravated assault with a deadly weapon. 3



       1
          The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
       2
          Thomas also raises an issue that we decline to consider. He argues that the
Court violated his Fifth Amendment right to due process by not holding an evidentiary
hearing regarding property that was seized from him or by not requiring the government
to return that property. Citing United States v. Chambers, 192 F.3d 374 (3d Cir. 1999),
he argues that seized property must be returned once criminal proceedings have
concluded. Federal Rule of Criminal Procedure 41(g) permits a criminal defendant to
move for the return of property by filing a motion in the district where the property was
seized. Although Thomas mentioned to the District Court at his sentencing hearing that
there was jewelry of his still in the government’s possession, we have not seen in the
record any evidence that he filed the motion allowed by Rule 41(g). We decline to
consider now an issue that should be decided by the District Court in the first instance, if
a decision is required at all. We trust that the government understands its obligations and
will return the property in question promptly or seek its forfeiture, if that step is
warranted.
       3
          Again, Thomas conceded that his other predicate conviction, the one for
distribution of a controlled dangerous substance, was a qualifying offense under the
guidelines.


                                             5
       Thomas argues that the District Court erred by sentencing him as a career offender

without analyzing whether that conviction was categorically a crime of violence, pursuant

to Johnson v. United States, 135 S. Ct. 2551 (2015). In response, the government

acknowledges that copies of the judgment orders related to his predicate convictions were

not included in the parties’ sentencing submissions. It has, however, provided them to us

on appeal and argues that they show Thomas was convicted of third degree aggravated

assault with a deadly weapon under N.J.S.A. § 2C:12-1(b)(2). 4 The government then

contends that N.J.S.A. § 2C:12-1(b)(2) is categorically a crime of violence under the

modified categorical approach. Thomas does not contest the validity of those documents

but, in his reply brief, he argues that the District Court’s decision to apply the

enhancement should be reversed.

       We may consider evidence outside of the record before the District Court when “it

would be pointless to remand the case simply to have the District Judge take notice of

that which we may notice ourselves.” United States v. Remoi, 404 F.3d 789, 793 n.1 (3d

Cir. 2005). We therefore take judicial notice of the court records of Thomas’s prior

conviction because it does not leave any “reasonable dispute” as to the statute under

which Thomas was convicted. 5 Fed. R. Evid. 201(b).



       4
         That provision makes one “guilty of aggravated assault if he ... [a]ttempts to
cause or purposely or knowingly causes bodily injury to another with a deadly
weapon[.]” N.J.S.A. § 2C:12-1(b)(2).
       5
         Our decision to take judicial notice of those records should not, however, be
taken as license for the government to ignore the need to make an appropriate record at
sentencing.

                                              6
       Although we agree with Thomas that it was error for the District Court to have

strayed from the categorical approach when analyzing his conviction, 6 that error was

harmless because, as stated in our recent precedential opinion in United States v.

Abdullah, --- F.3d ---, No. 18-1082, 2018 WL 4702225 (3d Cir. Oct. 2, 2018), a

conviction under N.J.S.A. § 2C:12-1(b)(2) is categorically a crime of violence. 7 Id. at *6.

We reasoned that § 2C:12-1(b) is divisible, id. at *3-*4, that the defendant in that case

was convicted of subsection (2) of that provision, id. at *4, and that that subsection

necessarily requires the government to prove “the use, attempted use, or threatened use of

physical force against the person of another[,]” as required by the elements clause of the

guideline’s definition of crime of violence, id. (citation omitted). Thus, a prior

conviction under N.J.S.A. § 2C:12-1(b)(2) categorically qualifies as a crime of violence.

Id. at *5.

       Thomas therefore has at least two prior offenses that qualify him as a career

offender. The District Court was correct to sentence him as such under § 4B1.1 of the

guidelines.


       6
          The District Court should not have considered the factual underpinnings of the
conviction. See United States v. Abdullah, --- F.3d ---, No. 18-1082, 2018 WL 4702225
(3d Cir. Oct. 2, 2018) at *3 (“Under the categorical approach, we must ignore the actual
manner in which the defendant committed the prior offense and presume that the
defendant did so by engaging in no more than the minimum conduct criminalized by the
state statute.” (internal quotation marks and citation omitted)).
       7
          Although we analyzed the 2015 version of the statute in Abdullah, the statute in
effect at the time of Thomas’s conviction was the 2011 version of N.J.S.A. § 2C:12-
1(b)(2). The 2011 version is identical in all material respects for purposes of this case to
the 2015 version. Compare N.J.S.A. § 2C:12-1(b) (2011), with id. § 2C:12-1(b) (2015).


                                              7
       B.     The Court Was Correct Not To Apply An Additional One-Point
              Reduction Pursuant To Guidelines § 3E1.1(b).

       Thomas next argues that he was entitled to an additional one-point reduction for

his acceptance of responsibility pursuant to guidelines § 3E1.1(b) when he pled guilty.

With respect to § 3E1.1, we review legal conclusions de novo and factual findings for

clear error. United States v. Williams, 344 F.3d 365, 379 (3d Cir. 2003).

       Section 3E1.1(b) permits the government to move for an additional one-point

reduction to the offense level when the defendant has assisted the government by timely

notifying the authorities of his intention to plead guilty. U.S.S.G. § 3E1.1(b). District

courts are without authority to grant that adjustment in the absence of a motion from the

government, and there is no bad faith exception to that rule when “the government has

not committed itself in a plea agreement to file such a motion.” United States v.

Drennon, 516 F.3d 160, 162 (3d Cir. 2008).

       Here, the government did not move for an additional one-point reduction, so that

point was unavailable to Thomas. Indeed, the government was justified in not making

such a motion because Thomas pled guilty after jury selection had commenced and on the

eve of trial. He has not and cannot allege bad faith on the part of the government because

he had no agreement with it. Thus, the Court was correct not to apply that additional

one-point reduction.

       C.     The Court Did Not Err In Permitting The Government To Play A
              Jailhouse Recording At The Sentencing Hearing.

       Thomas next argues that the Court erred at the sentencing hearing when it allowed

the government to play a jailhouse recording of one of his conversations. Sentencing


                                             8
judges have wide discretion in the kinds and sources of information they may consider at

sentencing, United States v. Leekins, 493 F.3d 143, 151 (3d Cir. 2007), provided that the

information has “sufficient indicia of reliability to support its probable accuracy[,]”

United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009) (citation omitted). Thomas does

not contest the authenticity of the recording, and he cites no legal authority for the

proposition that it was improper for the District Court to have considered what he said

after his conviction and while he was imprisoned. We therefore conclude that the Court

was well within its discretion to allow the government to play the recording.

       D.     Thomas’s Sentence Is Procedurally And Substantively Reasonable.

       Finally, Thomas argues that his sentence of 210 months imprisonment is

procedurally and substantively unreasonable. He says that the District Court failed to

adequately consider the § 3553(a) sentencing factors and that, consequently, his sentence

is “far greater than necessary.” (Opening Br. at 1.) In particular, he emphasizes that his

sentence is greater than those that Sterling and McCoy received for engaging in the same

conspiracy. We review procedural and substantive reasonableness of a sentence for an

abuse of discretion. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008).

       As to procedural reasonableness, Thomas points to no specific procedural error,

and our review of the record reveals none. Based on the sentencing hearing transcript, it

is apparent that the Court adequately considered the § 3553(a) sentencing factors. It

discussed Thomas’s role in the offenses that he pled guilty to, his individual background

and history, his family’s support for him, the seriousness of the offenses, the need to

promote respect for the law, to protect the community, and to provide deterrence to


                                              9
Thomas and others. In short, the Court did what needed to be done, and Thomas has not

shown otherwise.

       That procedurally sound approach produced a substantively reasonable sentence.

A sentence is substantively reasonable “[a]s long as [it] falls within the broad range of

possible sentences that can be considered reasonable in light of the § 3553(a) factors[.]”

Wise, 515 F.3d at 218. We will reverse a sentence only if “no reasonable sentencing

court would have imposed the same sentence on that particular defendant for the reasons

the district court provided.” United States v. Jackson, 862 F.3d 365, 394 (3d Cir. 2017)

(internal quotation marks and citation omitted). And we defer to a “district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of [a] variance.” United

States v. Ciavarella, 716 F.3d 705, 736 (3d Cir. 2013).

       The Court exercised its discretion here by varying downward and imposing a

sentence that was 82 months less than the bottom of Thomas’s guideline range. That

choice was not an abuse of discretion, given the Court’s consideration of Thomas’s

history, background, and various mental and emotional issues. Although Thomas

received a sentence that was greater than those of his co-conspirators, that was because,

as the Court explained, his role in the conspiracy and his criminal history were different

than theirs. That the District Court did not recommend mental health and drug addiction

counseling for Thomas during his incarceration but instead left it to him to seek those

services from the Bureau of Prisons does not change the reasonableness of the sentence.

Although Thomas may disagree with the sentence he received, it was not substantively

unreasonable.


                                             10
III.   CONCLUSION

       For the foregoing reasons, we will affirm.




                                            11
