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


11-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4129




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"USA v. Thomas" (2006). 2006 Decisions. Paper 173.
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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-4129


                           UNITED STATES OF AMERICA

                                           v.

                                  SHAWN THOMAS
                                    a/k/a FLUKEY

                                                      Shawn Thomas,
                                                              Appellant


                    On Appeal from the United States District Court
                           for the District of New Jersey
                          D.C. Criminal No. 01-cr-00818-1
                             (Honorable Joel A. Pisano)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 8, 2006
      Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges

                              (Filed: November 20, 2006)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Defendant Shawn Thomas appeals his criminal sentence. His attorney has filed a

motion to withdraw as counsel and has submitted a brief under Anders v. California, 386
U.S. 738 (1967). Thomas was provided timely notice of his attorney’s motion to

withdraw, but did not file a pro se brief. We will affirm.

                                              I.

       On December 17, 2002, in a superseding indictment, the United States Attorney

charged Thomas with three drug-related offenses. At trial, a jury convicted Thomas of

conspiracy to possess with intent to distribute more than five kilograms of cocaine and

more than fifty grams of cocaine base. The District Court sentenced Thomas to 360

months’ imprisonment to be followed by five years of supervised release and a special

assessment of $100.00. On appeal, we upheld Thomas’s conviction, but vacated his

sentence and remanded for resentencing under United States v. Booker, 543 U.S. 220

(2005). On remand, the District Court granted Thomas a two level downward departure

based on a showing of remorse, which resulted in a guideline range of 292 to 365 months.

The court then sentenced Thomas to 300 months’ imprisonment.

                                             II.

       Third Circuit Local Appellate Rule 109.2(a) provides “[w]here, upon review of the

district court record, trial counsel is persuaded that the appeal presents no issue of even

arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant

to Anders v. California, 386 U.S. 738 (1967).” When counsel submits an Anders brief,

we must engage in a two-pronged analysis. United States v. Youla, 241 F.3d 296, 300 (3d

Cir. 2001). First, we must consider “whether counsel adequately fulfilled the rule’s

requirements.” Id. Second, we must consider “whether an independent review of the

                                              2
record presents any nonfrivolous issues.” Id. But when defense counsel files an adequate

Anders brief, “we confine our scrutiny to those portions of the record identified by [the

brief].” Id. at 301.

       To adequately fulfill the requirements of Rule 109.2(a), the brief must “satisfy the

court that counsel has thoroughly examined the record in search of appealable issues, and

. . . explain[ed] why the issues are frivolous.” Id. at 300 (citing United States v. Marvin,

211 F.3d 778, 780 (3d Cir. 2000)). At a minimum, counsel must engage in a

conscientious examination of the case. Id. In a previous appeal, we examined and

rejected challenges to Thomas’s conviction. See United States v. Thomas, 127 Fed.

Appx. 582, 585 (3d Cir. 2005) (unpublished). Accordingly, defense counsel properly

limited its Anders brief to Thomas’s resentencing. Furthermore, defense counsel’s

Anders brief included a detailed analysis of the “reasonableness” of the imposed sentence

with the appropriate citations. In all, defense counsel filed an adequate Anders brief.

       To prevail Thomas must establish that the District Court imposed an unreasonable

sentence. See United States v. Cooper, 437 F.3d 324, 326 (2006) (noting appellate courts

review sentences for reasonableness). But the District Court’s sentence was within the

guideline range after having made a discretionary downward departure.1 The District


   1
    At remand, the parties did not dispute the District Courts’ calculation of the guideline
range. The District Court found the guideline called for an initial offense level of 32
based on Thomas’ conviction for participating in a drug conspiracy involving violence.
The court then found Thomas qualified as a career criminal because of his two prior
convictions of violence, raising his offense level to 37 with a criminal history category of
                                                                                (continued...)

                                              3
Court reduced Thomas’s sentence by 60 months from the originally imposed sentence.

We see nothing in the record to undermine the reasonableness of Thomas’s sentence.



                                           III.

       We will affirm the judgment of sentence. Defense counsel’s motion to withdraw is

granted.




   1
    (...continued)
six. The parties did dispute whether the court should exercise its discretion under Booker
to shorten Thomas’ initial sentence. The court granted Thomas a discretionary two level
downward departure for showing remorse at the resentencing hearing.

                                            4
