US v. Jon Thoma

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999980087-2] Originating case number: 7:15-cr-00091-F-1 Copies to all parties and the district court/agency. [1000030100].. [16-4416]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4416

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JON JAMES THOMAS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:15-cr-00091-F-1)

Submitted:

February 16, 2017

Decided:

February 24, 2017

Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM
Jon James Thomas pled guilty, in accordance with a written
plea agreement, to one count of receipt of child pornography, in
violation of 18 U.S.C. § 2252(a)(2) (2012).

The district court

sentenced Thomas to 78 months’ imprisonment, to be followed by a
lifetime term of supervised release.

Thomas timely appealed.

Thomas’ attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious grounds for appeal, but questioning the substantive
reasonableness

of

the

lifetime

term

of

supervision.

Thomas

filed a pro se supplemental brief raising the same and other
issues.

The Government has moved to dismiss the appeal on the

basis of the waiver in Thomas’ plea agreement pursuant to which
Thomas waived his right to appeal his sentence.

We affirm in

part and dismiss in part.
We review de novo the validity of an appeal waiver.

United

States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).

“We

generally will enforce a waiver . . . if the record establishes
that the waiver is valid and that the issue being appealed is
within the scope of the waiver.”
670

F.3d

532,

537

(4th

quotation marks omitted).

Cir.

United States v. Thornsbury,

2012)

(alteration

and

internal

A defendant’s waiver is valid if he

agreed to it “knowingly and intelligently.”
Manigan, 592 F.3d 621, 627 (4th Cir. 2010).
2

United States v.

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Our review of the record leads us to conclude that Thomas
knowingly and voluntarily waived the right to appeal his withinGuidelines sentence, except for claims of ineffective assistance
of counsel or prosecutorial misconduct not known to Thomas at
the

time

of

his

guilty

plea.

We

therefore

grant

the

Government’s motion to dismiss and dismiss that portion of this
appeal pertaining to Thomas’ sentence.
Thomas’ waiver of his right to appeal his sentence does
not, however, preclude our review of the validity of Thomas’
guilty plea, which Thomas challenges in his pro se supplemental
brief.

Thomas first asserts that his guilty plea was induced by

a promise of a five-year term of supervised release and that he
would not have pled guilty had he been more fully apprised of
how the results of his polygraph examination could have been
used at trial.

These claims are undermined by Thomas’ testimony

to the contrary at his Rule 11 hearing.

Specifically, Thomas

testified that his guilty plea was not the result of any threats
or promises and that he had not been promised any particular
sentence.

Thomas further averred that he was fully satisfied

with his attorney’s services.
presumption
doubt
(1977)

their

of

veracity,

truth.

(“Solemn

and

Such statements carry a strong
the

Blackledge

declarations

in

record

v.

offers

Allison,

open

court

431

no

reason

U.S.

carry

a

63,

to
74

strong

presumption of verity.”); Fields v. Att’y Gen., 956 F.2d 1290,
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1299 (4th Cir. 1992) (“Absent clear and convincing evidence to
the contrary, a defendant is bound by the representations he
makes under oath during a plea colloquy.”).
Thomas
assistance

also
of

contends

counsel

that

because

he

his

was

attorney

denied
told

effective

him

that

he

would receive a five-year term of supervised release when he
actually received lifetime supervision.

Unless an attorney’s

ineffectiveness conclusively appears on the face of the record,
ineffective

assistance

direct appeal.
Cir. 2008).

claims

are

not

generally

addressed

on

United States v. Benton, 523 F.3d 424, 435 (4th

Instead, such claims should be raised in a motion

brought pursuant to 28 U.S.C. § 2255 (2012) in order to permit
sufficient

development

of

the

record.

United

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

States

v.

Because the

record does not conclusively establish ineffective assistance of
counsel, we conclude that this claim should be raised, if at
all, in a § 2255 motion.
Pursuant to Anders, we have reviewed the entire record for
any meritorious issues that fall outside the scope of the appeal
waiver and have found none.

We therefore affirm the judgment in

part and dismiss this appeal in part.

This court requires that

counsel inform Thomas, in writing, of his right to petition the
Supreme Court of the United State for further review.

If Thomas

requests that such a petition be filed, but counsel believes
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that the petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.
motion

must

Thomas.
legal
before

state

that

a

copy

of

the

motion

was

Counsel’s
served

on

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED IN PART;
DISMISSED IN PART

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