US v. Demarcus Thoma

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00369-WO-3. Copies to all parties and the district court/agency. [999147609]. [12-4637]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4637

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMARCUS ANTONIO THOMAS,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:11-cr-00369-WO-3)

Submitted:

June 27, 2013

Before WILKINSON and
Senior Circuit Judge.

KEENAN,

Decided:

Circuit

Judges,

July 11, 2013

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant.
Ripley Rand, United
States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Demarcus Antonio Thomas pled guilty to conspiracy to
distribute 28 or more grams of cocaine base (crack) in violation
of 21 U.S.C. § 846 (2006), and was sentenced to 108 months’
imprisonment.
quantity

of

Thomas
crack

appeals

his

attributed

sentence,

to

him

challenging

under

U.S.

the

Sentencing

Guidelines Manual § 2D1.1 (2011); an enhancement for possession
of a firearm during the offense, see USSG § 2D1.1(b)(1); the
district
safety

court’s
valve

failure

to

provision,

award

see

him

reduction

§ 5C1.2;

USSG

a

and

refusal to vary below the Guidelines range.

area

of

and

numerous

Durham,

Durham

2011.

North

police

included
conducted

a

pole

North
had

camera

controlled

co-defendants
Carolina,

the

area

installed

purchases

in

of

sold

between

under

court’s

We affirm.
crack

2008

in

and

surveillance,

August

crack

the

the

He also asserts

that he received ineffective assistance of counsel.
Thomas

under

2010,

using

an

late
which

and

they

confidential

informants who carried audio and video recording equipment.

In

written objections to the presentence report, Thomas objected to
the

quantity

enhancement.

of

crack

attributed

to

him

and

to

the

firearm

He also requested a downward variance, pursuant to

18 U.S.C.A. § 3553(a)(2) (West 2000 & Supp. 2013), to a range of
60-71

months.

However,

at

the

sentencing

hearing,

Thomas

stipulated that he was responsible, for sentencing purposes, for
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280-840 grams of crack, resulting in a base offense level of
thirty-two.

He also withdrew his objection to the two-level

enhancement for possession of a firearm during the offense, and
stated

that

report.
the

he

had

no

other

objections

to

the

presentence

The district court accepted the stipulation and adopted

presentence

report

Guidelines calculation.

with

the

resulting

changes

in

the

Thomas’ new total offense level was 31,

and his Guidelines range was 108-135 months.
Thomas’ attorney asked for a downward variance to a
sentence of eighty-four months based on Thomas’ youth (he was
twenty-one years old), his positive involvement with his family,
and his potential for a law-abiding and productive future life.
The district court declined to vary downward, explaining it had
considered the Guidelines range and the § 3353(a) factors and
concluded

that,

conspiracy,

the

although
offense

Thomas
was

was

serious

not

a

because

leader
such

in

the

long-term,

organized, open air drug sales negatively affected an entire
community.
family,

but

The court noted that Thomas had the support of his
made

bad

choices.

The

court

enumerated

the

§ 3553(a) factors and concluded that, in light of all of them, a
sentence within the Guidelines range was sufficient, but not
greater than necessary.

The court imposed a sentence at the

bottom of the Guidelines range.

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Sentences are reviewed for procedural and substantive
reasonableness under an abuse of discretion standard.
United States, 552 U.S. 38, 51 (2007).

Gall v.

Thomas’ allegations of

error with respect to the drug amount and firearm enhancement
assert

a

miscalculation

of

the

significant procedural error.

Guidelines

Id.

range,

which

is

a

However, when Thomas raised

and subsequently withdrew objections to the drug quantity and
the

firearm

appellate

enhancement

review

of

in

those

the

district

issues.

court,
United

See

he

waived

States

v.

Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (finding that
defendant's
precluded

withdrawal

appellate

of

review

objection
of

to

sentence

enhancement);

enhancement

United

States

v.

Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (“[A] party who
identifies

an

issue,

waived the issue.”).

and

then

explicitly

withdraws

it,

has

An appellant is precluded from challenging

a waived issue on appeal.

See Rodriguez, 311 F.3d at 437.

Such

a waiver is distinguishable “from a situation in which a party
fails

to

make

a

timely

assertion

of

a

right

-

what

courts

typically call a ‘forfeiture,’” id. (quoting United States v.
Olano,

507

U.S.

725,

appeal for plain error.

733

(1993)),

which

may

be

reviewed

on

Thomas objected to the amount of crack

attributed to him in the presentence report and to the firearm
enhancement,
hearing.

but

withdrew

both

objections

at

the

sentencing

He has therefore waived review of both issues.
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In his reply brief, Thomas argues that, regardless of
his withdrawal of his objections to the presentence report, the
district court erred in making the firearm enhancement because
there was no evidence that he had personally possessed a weapon
during

or

in

connection

with

his

drug

sales.

However,

the

enhancement applies “if the weapon was present, unless it is
clearly

improbable

offense.”

that

the

weapon

was

connected

with

the

USSG § 2D1.1 cmt. n.3(A).
The presentence report contained information from one

of

Thomas’s

co-defendants

that

Thomas

had

conspirators in pooling money to buy firearms.

joined

other

These weapons

were hidden in the Canal Street area, where they were available
to Thomas and the other dealers if needed.

One of the dealers

with whom Thomas sold crack was seen on the surveillance camera
handling a firearm and hiding it in a trash can where police
officers later found it.

Although Thomas was not seen carrying

a firearm, the firearm was present, and the conduct of his coconspirators
attributed

in
to

furtherance
him

as

of

the

relevant

conspiracy

was

conduct

properly

under

USSG

§ 1B1.3(a)(1)(B).

Because Thomas did not make an affirmative

showing

information

that

the

in

the

presentence

report

was

inaccurate, the district court was free to accept it “without
more specific inquiry or explanation.”

5

United States v. Terry,

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916 F.2d 157, 162 (4th Cir. 1990) (internal quotation marks and
citation omitted).
Thomas
was

unreasonably

contends
long

that

his

within-Guidelines

because

the

district

court

sentence

failed

to

“reasonably consider” the § 3553(a) factors which, in his view,
supported a below-Guidelines sentence.

He also claims that the

district court failed to explain adequately its reasons for not
varying below the Guidelines range.
properly

calculated

Thomas’s

However, the district court

sentencing

range,

considered

and

discussed the relevant § 3553(a) factors, and imposed a sentence
within the applicable sentencing range.
sentence

within

a

properly

presumptively reasonable.

calculated

sentence.

of

Guidelines

range

as

United States v. Mendoza-Mendoza, 597

F.3d 212, 216 (4th Cir. 2010).
presumption

This court treats a

reasonableness

Thomas has not overcome the
accorded

his

within-Guidelines

See Rita v. United States, 551 U.S. 338, 347 (2007).
Next, Thomas argues that the district court erred by

not sua sponte awarding him a two-level reduction in offense
level under § 5C1.2, which is applicable if the defendant meets
the five criteria set out in 18 U.S.C. § 3553(f) (2006).

One

requirement is that the defendant not have possessed a firearm
in connection with the offense.

The defendant has the burden of

showing that he has met the prerequisites.

United States v.

Aidoo, 670 F.3d 600, 605 (4th Cir.), cert. denied, 133 S. Ct.
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627 (2012).

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Because Thomas did not request application of the

safety valve reduction in the district court, his claim of error
in this appeal is reviewed for plain error.

United States v.

Olano, 507 U.S. 725, 731 (1993).

By withdrawing his objection

to

§ 2D1.1,

the

firearm

enhancement

under

Thomas

effectively

conceded that he had possessed a firearm with his co-defendants
in furtherance of their mutual drug trafficking.

Therefore, the

district court did not plainly err in failing, sua sponte, to
award Thomas a safety valve reduction.
Last,
ineffective
objection

Thomas

alleges

assistance

to

the

at

firearm

that

his

sentencing

enhancement

by

under

attorney

rendered

withdrawing

his

§ 2D1.1(b)(1)

and

thus precluding him from qualifying for a safety valve reduction
under § 5C1.2.

Ineffective assistance claims are not generally

addressed on direct appeal unless an attorney’s ineffectiveness
is conclusively apparent on the face of the record.

United

States

2006).

v.

Baldovinos,

434

F.3d

233,

239

(4th

Cir.

Counsel’s ineffectiveness is not conclusively apparent on the
face of

this

record;

therefore,

this

claim

is

more

properly

raised on a motion to vacate under 28 U.S.C.A. § 2255 (West
Supp. 2013).
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

7

because

the

facts

and

legal

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are

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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