                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2905




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 07-2905
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                             THOMAS DARMEL THOMAS,
                                              Appellant
                                   __________

                       Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (D.C. Criminal No. 06-cr-00322)
                         District Judge: Honorable Yvette Kane
                                      __________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  on March 27,2009

               Before: RENDELL, AMBRO, and JORDAN, Circuit Judges

                                   (Filed: May 8, 2009)
                                       __________

                               OPINION OF THE COURT
                                     __________

RENDELL, Circuit Judge.

       Appellant Thomas Darmel Thomas pleaded guilty to one count of possession with

intent to distribute “crack” cocaine in violation of 21 U.S.C. § 841(a)(1). The District

Court for the Middle District of Pennsylvania entered judgment and sentenced him to
194 months’ incarceration, a sentence within the guideline range of 188 to 235 months.

Thomas appeals the judgment of conviction and sentence on several grounds. Thomas’s

attorney moved to withdraw from representation and filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967). Finding no non-frivolous arguments in

support of Thomas’s appeal, we will affirm the Judgment and Commitment Order of the

District Court. However, we will deny Counsel’s motion to withdraw since Thomas may

require assistance if he chooses to move for reconsideration of his sentence in the District

Court pursuant to 18 U.S.C. § 3582(c)(2).

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. United States

v. Tannis, 942 F.2d 196, 197 (3d. Cir. 1991). In assessing an Anders brief, we must

determine: 1) whether counsel has thoroughly examined the record and explained why the

appeal presents no issues of even arguable merit; and 2) whether our independent review

of the record presents any non-frivolous issues. United States v. Youla, 241 F.3d 296, 300

(3d Cir. 2001); Third Circuit L.A.R. 109.2(a). If the Anders brief appears adequate on its

face, we will confine our scrutiny to the portions of the record identified in an appellant’s

pro se brief and counsel’s Anders brief. Youla, 241 F.3d at 301.

       Here, Counsel’s Anders brief appears adequate on its face. Counsel identified

three general grounds for challenging a conviction and sentence based on a guilty plea

– jurisdiction, validity of the plea, and the legality and reasonableness of the sentence –

and thoroughly explained why there were no arguably appealable issues in Thomas’s



                                              2
case. We therefore restrict our inquiry to the issues raised by Counsel and Thomas in his

pro se brief.

       Thomas does not deny the conduct underlying his conviction. However, he argues

that the judgment of conviction is invalid because it describes the nature of his offense as

distribution and possession with intent to distribute, while he only pleaded guilty to

possession with intent. This argument lacks arguable merit. Section 841(a) criminalizes

possession with intent to distribute under § 841(a)(1) or distribution under § 841(a)(2),

without any substantive distinctions between the acts. Thomas was charged with drug

trafficking in violation of § 841(a)(1), pleaded guilty to violating § 841(a)(1), and was

convicted expressly for violating § 841(a)(1). That the District Court happened to

describe the nature of the offense in the judgment under the more general scope of the

trafficking statute is immaterial.

       Furthermore, Thomas argues that his conviction is invalid because his indictment

only cited the “unlawful acts” portion of § 841(a) without identifying the applicable

“penalties” portion of § 841(b). An “indictment is sufficient so long as it (1) contains the

elements of the offense intended to be charged, (2) sufficiently apprises the defendant of

what he must be prepared to meet, and (3) allows the defendant to show with accuracy to

what extent he may plead a former acquittal or conviction in the event of a subsequent

prosecution.” United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007). We see no

non-frivolous argument that the indictment plainly charging Thomas with possessing



                                              3
cocaine base with intent to distribute, in violation of § 841(a)(1), failed to satisfy any of

these requirements.

       Thomas also challenges his sentence on several grounds. Thomas did not object to

the calculated guideline range of 188 to 235 months at his hearing, and did not move for a

downward departure. However, he requested a discretionary downward variance in

consideration of the guideline disparity between crack and powder cocaine pursuant to

United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). The District Court acknowledged

that the guideline range was high, but stated that it was justified in light of Thomas’s

extensive criminal history and the circumstances of his arrest. Yet the Court reasoned

that a sentence below the maximum would serve the objectives of sentencing in light of

his age and family history. The Court accordingly selected an intermediate sentence of

194 months’ incarceration.

       Thomas argues on appeal that (1) the enhanced guideline range for crack was

inapplicable because he was charged merely for possession of undifferentiated cocaine

base; (2) his sentence should be reconsidered in light of Kimbrough v. United States,

128 S.Ct. 558 (2007); and (3) his sentence should be reconsidered in light of Amendment

706 1 to the U.S. Sentencing Guidelines. None of these arguments has arguable merit.




  1
   In his pro se brief, Thomas points to Amendment “705,” but we construe this to be a
reference to Amendment 706.

                                               4
       First, Thomas did not object to the calculation of his sentencing range on the basis

of crack cocaine instead of some other form of cocaine base. In fact, in seeking a

discretionary variance from the guidelines, he argued that the“disparity between powder

cocaine and crack cocaine” should be considered, and that the “amount of crack”

involved was close to the low end of the applicable guideline level. (App. 56.) There is

no question that Thomas was fully apprised of his sentencing exposure for possession of

crack at the time he entered his plea, and his argument that he should not have been

sentenced accordingly is frivolous.

       Second, although the Supreme Court decided Kimbrough after Thomas was

sentenced, the record demonstrates that the District Court’s analysis was in full

compliance with the opinion. The District Court had the benefit of our prior decision in

Gunter, in which we made clear that nothing about the crack cocaine guidelines made

them any “less advisory,” or less subject to a district court’s discretion, than any other

guidelines. 462 F.3d at 248. Gunter is fully compatible with the Supreme Court’s ruling

in Kimbrough that a district court has the discretion to reduce a sentence if the

crack/powder sentencing disparity would otherwise yield an excessive sentence.

Kimbrough, 128 S. Ct. at 587. In fact, Counsel for Thomas specifically cited the

crack/powder cocaine disparity and asked the District Court to exercise its discretion

under Gunter to enter a sentence below the guideline range. The record demonstrates that




                                              5
the District Court understood its discretion with regard to the crack/powder cocaine

disparity, and any argument to the contrary lacks arguable merit.

       Finally, Thomas argues that we should remand this matter to allow the District

Court to reconsider his sentence in light of Amendment 706 to the Sentencing Guidelines,

which reduced sentences for crack convictions after he was sentenced. See 73 Fed. Reg.

217-01 (Jan. 2, 2008); U.S.S.G. § 1B1.10(c). The appropriate avenue for Thomas to seek

reconsideration of his sentence in light of Amendment 706 is through a motion in the

District Court, rather than on this direct appeal. See 18 U.S.C. § 3582(c)(2); United

States v. Wise, 515 F.3d 207, 221 n.11 (3d Cir. 2008). Our decision today in no way

prejudices Thomas’s right to pursue such relief.

       For the foregoing reasons, we conclude that Counsel filed an adequate Anders

brief and our independent review of the record reveals no appealable issues of arguable

merit. Counsel is under no obligation to file a petition for writ of certiorari in the

Supreme Court per 3d Cir. L.A.R. 109.2(b). We will AFFIRM the judgment of the

District Court and, but in a separate order, we will DENY Counsel’s motion to withdraw.2




  2
   Counsel may petition the District Court to be relieved of responsibility for pursuing
any application there under § 3582(c)(2), but we think it would be unwise for us to grant
withdrawal, since Thomas may choose to seek relief in the District Court and his current
counsel is thoroughly familiar with his case.

                                               6
