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


10-12-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4523




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                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                     No.: 05-4523

                           UNITED STATES OF AMERICA

                                           v.

                            CHARLES CHUCK THOMAS
                                           Appellant

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (Crim. No. 02-cr-00061)
                         District Court: Hon. James T. Giles

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 3, 2006

              Before: McKEE, AMBRO, and NYGAARD, Circuit Judges


                               (filed: October 12, 2006 )



                                       OPINION

McKEE, Circuit Judge

      Charles Thomas appeals from the judgment of sentence imposed following his

conviction for mail fraud, wire fraud, money laundering, and making false statements to a

federal agency and to a federally-insured financial institution. For the reasons stated

below, we will affirm.

                                           I.
       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Because we write primarily for the parties, we have no need to recite the underlying facts

of this case. We note only that the district court initially imposed a sentence of 84 months

of imprisonment, and ordered restitution in the amount of $6,483,493. We remanded for

resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005). On remand, the

district court resentenced Thomas to 48 months imprisonment and reimposed its

restitution in the same amount. This appeal followed.

       Thomas argues that the reduced term of imprisonment was an improper ex post

facto application of Booker because “the maximum sentence that could have been

imposed in accord with the Sixth Amendment [before Booker] was 41 months.”

Appellant’s Br. at 16. He also claims that since a jury did not determine the amount of

the loss, the order of restitution violates his Sixth Amendment right to trial by jury. Both

arguments are meritless.

       Thomas claims that, because his reduced sentence of 48 months exceeds the base,

offense maximum of 41 months that would have previously applied absent enhancements,

this violated his Fifth and Sixth Amendment rights. However, the Supreme Court

expressly mandated that courts “must apply today's holdings—both the Sixth Amendment

holding and our remedial interpretation of the Sentencing Act—to all cases on direct

review.” Booker, 543 U.S. at 268. Moreover, every court of appeals that has addressed the

argument Thomas makes here has rejected it. See United States v. Lata, 415 F.3d 107,

110-13 (1st Cir. 2005); United States v. Vaughn, 430 F.3d 518, 524-25 (2d Cir. 2005);

United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005); United States v.


                                              2
Richardson, 437 F.3d 550, 555 (6th Cir. 2006); United States v. Jamison, 416 F.3d 538,

539-40 (7th Cir. 2005); United States v. Morin, 437 F.3d 777, 780; United States v.

Dupas, 419 F.3d 916, 921-22 (9th Cir. 2005); United States v. Duncan, 400 F.3d 1297,

1306-08 (11th Cir. 2005); United States v. Alston-Graves, 453 F.3d 331, 343 (D.C. Cir.

2006).

         That result is not surprising. Thomas clearly had notice of the applicable statutory

maximum before he engaged in the illegal conduct he was convicted of, and nothing in

Booker increased his exposure or altered the legal consequences of his conduct. There is

no such increase or alteration merely because the sentencing court can now exercise its

discretion in selecting an appropriate sentence within the same guideline range that

applied before Booker. Accordingly, there is no ex post facto issue. Thomas’ attempt to

claim a Sixth Amendment violation because the jury did not find the amount of restitution

has already been rejected by this court and is therefore also meritless. See United States v.

Leahy, 438 F.3d 328, 331 (3d. Cir. 2006) (en banc). Accordingly, we will affirm.



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