US v. Damien Thoma

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:14-cr-00519-PWG-1. Copies to all parties and the district court/agency [1000101021]. [16-4457]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4457

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMIEN HENRY THOMAS, a/k/a Boo Boo,
Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:14-cr-00519-PWG-1)

Submitted: May 30, 2017

Decided: June 15, 2017

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Allen H. Orenberg, ORENBERG LAW FIRM, PC, North Bethesda, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Collin F. Delaney, Special Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Damien Henry Thomas appeals his conviction and sentence of 180 months of
imprisonment for conspiracy to distribute and possess with intent to distribute 280 grams
or more of crack cocaine and 500 grams or more of powder cocaine, in violation of 21
U.S.C. § 846 (2012) (Count 1), and being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g) (2012) (Count 6). He contends that there is an insufficient factual basis
to support his guilty plea to Count 1, the conspiracy charge. In addition, Thomas contends
that the district court sentenced him to an unreasonable sentence because, in view of the
alleged invalidity of the plea to Count 1, he should have been sentenced based solely on
his conviction for Count 6, the firearm charge. We affirm in part and dismiss in part.
Because Thomas did not move to withdraw his guilty plea in the district court or
otherwise preserve any allegation of error under Federal Rule of Criminal Procedure 11,
we review the plea colloquy for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th
Cir. 2014). To establish plain error, a defendant must show that (1) there was error, (2) the
error was plain, and (3) the error affected his substantial rights. Henderson v. United States,
133 S. Ct. 1121, 1126-27 (2013). To establish that the error affected his substantial rights,
a defendant must show a reasonable probability that, but for the Rule 11 error, he would
not have pleaded guilty. United States v. Davila, 133 S. Ct. 2139, 2147 (2013). Even if a
defendant establishes all three elements, we may exercise our discretion to correct a plain
error only when necessary to prevent a miscarriage of justice or to ensure the fairness,
integrity, or public reputation of judicial proceedings. United States v. McNeal, 818 F.3d
141, 148 (4th Cir. 2016).
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In determining whether a factual basis exists before entering judgment on a guilty
plea, “the district court possesses wide discretion, and it need only be subjectively satisfied
that there is a sufficient factual basis for a conclusion that the defendant committed all of
the elements of the offense.” United States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008)
(internal quotation marks omitted).
“[O]ne may be a member of a conspiracy without knowing its full scope, or all its
members, and without taking part in the full range of its activities or over the whole period
of its existence.” United States v. Allen, 716 F.3d 98, 103 (4th Cir. 2013) (internal
quotation marks omitted). In addition, under the doctrine of vicarious liability set forth in
Pinkerton v. United States, 328 U.S. 640, 646 (1946), “a defendant is liable for substantive
offenses committed by a co-conspirator when their commission is reasonably foreseeable
and in furtherance of the conspiracy.” United States v. Blackman, 746 F.3d 137, 141 (4th
Cir. 2014) (internal quotation marks omitted).
We conclude that Thomas has not shown that the district court erred in finding a
sufficient factual basis to support his guilty plea. Thomas is correct that the statement of
facts does not explicitly explain how it determined that between 280 grams and 840 grams
of cocaine base and between 500 grams and 2 kilograms of cocaine were attributable to
Thomas. However, we conclude that it is reasonably foreseeable that other members of
the conspiracy would have sold quantities of cocaine and cocaine base in addition to the
amounts sold by Thomas. See Blackman, 746 F.3d at 141; United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010); United States v. Brown, 856 F.2d 710, 712 (4th Cir. 1988).

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Furthermore, even if we were to conclude that the district court erred, Thomas has
not shown that the alleged error affected his substantial rights. Thomas does not state that
he would not have pleaded guilty but for the error. See Davila, 133 S. Ct. at 2147. Thus,
we conclude that Thomas has not shown that he is entitled to relief under plain-error
review. See Henderson, 133 S. Ct. at 1126-27.
Next, Thomas seeks to challenge the reasonableness of his sentence.

The

Government has asserted that Thomas waived the right to appeal this claim. We review
the validity of an appellate waiver de novo and “will enforce the waiver if it is valid and
the issue appealed is within the scope of the waiver.” United States v. Adams, 814 F.3d
178, 182 (4th Cir. 2016).
An appellate waiver must be knowing and voluntary. Id. We generally evaluate the
validity of a waiver by reference to the totality of the circumstances. United States v.
Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).

“In the absence of extraordinary

circumstances, a properly conducted Rule 11 colloquy establishes the validity of the
waiver.” Adams, 814 F.3d at 182.
Because the district court properly conducted Thomas’ Rule 11 hearing and
Thomas’ sentencing claim falls within the scope of the appellate waiver, we conclude that
this claim is barred by the appellate waiver.
Accordingly, we affirm the judgment of the district court in part and dismiss the
appeal in part. We dispense with oral argument because the facts and legal contentions are

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adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

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