USA v. Marvin Thoma

Filing

Opinion issued by court as to Appellant Marvin Thomas in 13-14208, 13-14701. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. [13-14208, 13-14701]consolidated with and also filed in 13-14701--[Edited 04/23/2014 by DC]

Case: 13-14208

Date Filed: 04/23/2014

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14208
Non-Argument Calendar
________________________
D.C. Docket No. 3:04-cr-00188-MEF-CSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN THOMAS,
Defendant-Appellant.
________________________
No. 13-14701
Non-Argument Calendar
________________________
D.C. Docket No. 3:05-cr-00101-MEF-SRW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN THOMAS,
Defendant-Appellant.

Case: 13-14208

Date Filed: 04/23/2014

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________________________
Appeals from the United States District Court
for the Middle District of Alabama
________________________
(April 23, 2014)
Before TJOFLAT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
In No. 13-14208, Marvin Thomas was convicted of violating 18 U.S.C. §
500 by negotiating stolen money orders and sentenced to prison for 51 months.
See United States v. Thomas, 176 Fed. Appx. 997 (11th Cir. 2006) (affirming
conviction and sentence). In No. 13-14701, Thomas was convicted of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
sentenced to prison for 37 months, with 12 of those months to run consecutively to
the 51-months sentence.
After Thomas served these prison terms, he was placed on a three-year term
of supervised release. Then, on April 12, 2012, he was convicted in Georgia state
court in two cases—theft of property and criminal trespass and given concurrent
prison sentences of 60 months. His federal probation officer thereafter petitioned
the District Court to revoke his supervised release due to those two state-court
convictions and because he failed to pay restitution, failed to obtain employment
and tested positive for marijuana use. The District Court, following a revocation

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hearing, revoked his probation and sentenced him to prison on each of the charged
violations for concurrent terms of 24 months—the Guidelines range. 1 He now
appeals his sentences.
On appeal, Thomas first argues that the Government failed to present
sufficient evidence at the revocation hearing to establish that he willfully failed to
pay restitution or obtain employment while on supervised release. That is, he
contends that the District Court was required to consider whether he made a
good-faith effort to comply with these terms of his supervised release and whether
there were mitigating circumstances that excused his noncompliance. Thomas then
argues that his sentences were substantively unreasonable because the court also
failed to consider the time he spent in prison in the State of Alabama for the new
criminal offenses underlying the revocations of his supervised release. We find no
merit in his arguments and accordingly affirm.
I.

We review the district court’s determination that a defendant violated the
terms of his supervised release for an abuse of discretion. United States v.
Copeland, 20 F.3d 412, 413 (11th Cir. 1994). A district court’s findings of fact in
a revocation hearing are reviewed for clear error. United States v. Almand, 992
F.2d 316, 318 (11th Cir. 1993). Clear error will be present when we are “left with
1

Thomas’s Guidelines range was 33 to 41 months based on a Grade A violation and a
criminal history category of VI. Twenty-four months became the range because his previous
convictions in his two federal cases were for Class C felonies.
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a definite and firm conviction that a mistake has been committed.” United States
v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (citation omitted).
A court may revoke a defendant’s term of supervised release and impose a
prison sentence when it finds by a preponderance of the evidence that the
defendant violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3).
In determining whether a violation warrants revocation, a district court “should
consider whether the probationer made a ‘good faith’ effort to comply with the
terms of his probation and whether there are mitigating circumstances which
excuse his noncompliance.” United States v. Holland, 874 F.2d 1470, 1473 (11th
Cir. 1989) (discussing revocation of probation).
The District Court had sufficient evidence before it on which to find that
Thomas had violated the employment and restitution conditions of his supervised
release. Specifically, he had not made a good-faith effort to find employment or
pay restitution. We thus find no lawful reason for disturbing the court’s decisions
on those two bases for revoking Thomas’s supervised release.
II.
We review sentences imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). Reasonableness is reviewed under a deferential abuse-of-discretion
standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169
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L.Ed.2d 445 (2007). The party who challenges the sentence bears the burden of
showing that the sentence is unreasonable. United States v. Tome, 611 F.3d 1371,
1378 (11th Cir. 2008). In reviewing the reasonableness of a sentence, we first
ensure that the sentence was procedurally reasonable, meaning the district court
properly calculated the guidelines range, treated the Guidelines as advisory,
considered the factors in 18 U.S.C. § 3553(a), did not select a sentence based on
clearly erroneous facts, and adequately explained the chosen sentence. Gall, 552
U.S. at 51, 128 S.Ct. at 597 (2007). If we determine that a sentence is procedurally
sound, we then examine whether the sentence was substantively reasonable in light
of the totality of the circumstances. Id.
Thomas did not object to the reasonableness of his sentences in the District
Court. We therefore review the reasonableness for plain error. “To establish plain
error, a defendant must show there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.
2005). We will recognize plain error “only if the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
omitted) (alteration in original).
Section 3583(e)(3) of Title 18 of the United States Code requires a district
court to consider the following 18 U.S.C. § 3553(a) factors in imposing sentence
upon revocation of supervised release: the nature and circumstances of the
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offense; the history and characteristics of the defendant; the need to deter criminal
conduct, protect the public from the defendant’s future criminal conduct, and
provide the defendant with education or treatment; the applicable guidelines range;
pertinent policy statements of the Sentencing Commission; the need to avoid
unwarranted sentencing disparities; and the need to provide restitution to victims.
18 U.S.C. § 3583(e)(3); see also 18 U.S.C. § 3553(a)(1), (2)(B)-(D), (4)-(7). The
record reveals that the court considered these factors. Thomas says that the court
failed to consider the time he spent in prison in the State of Alabama for the new
criminal offenses and to give him credit for such time. We find nothing in binding
precedent or the applicable federal statutes that would have informed the court that
it had to afford Thomas credit for the time served in state custody. He therefore
fails to establish that error, much less, plain error occurred when the court
sentenced him to prison for an additional 24 months.
AFFIRMED.

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