Case: 12-20594 Document: 00512452633 Page: 1 Date Filed: 11/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 25, 2013
No. 12-20594
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SYNACA THOMAS,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-473-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Synaca Thomas pleaded guilty to conspiring to make and possess
counterfeit federal reserve notes, making counterfeit federal reserve notes, and
possession of a firearm by a felon. He was sentenced to consecutive sentences
totaling 262 months. He now appeals, arguing that the Government breached
his plea agreement, that the court applied the wrong Guideline to determine his
base offense level, that the court erred by increasing his sentence for obstruction
of justice, and that his sentence is unreasonable.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-20594
His claim that the Government breached its agreement not to oppose
credit for acceptance of responsibility is reviewed only for plain error. See
Puckett v. United States, 556 U.S. 129, 132-33 (2009); United States v. Hebron,
684 F.3d 554, 558 (5th Cir. 2012). Thomas must show a forfeited error that was
clear and obvious beyond reasonable dispute and that affected his substantial
rights; then we have discretion to correct the error if it seriously affects the
integrity, fairness and public reputation of he judicial proceedings. See Hebron,
684 F.3d at 558.
Given that Thomas attempted to smuggle marijuana into the jail after his
plea, it is not clear and obvious that the Government remained obligated not to
oppose credit for acceptance. See Puckett, 556 U.S. at 135, 140 n.2. But even if
we assume error, there is no showing that it affected Thomas’s substantial
rights. In light of his continued criminal activity, as well as his obstruction of
justice that we address below, he was not entitled to this credit, and nothing in
the record suggests that the court likely would have given such a credit,
regardless of the Government’s comments. See Puckett, 556 U.S. at 141-42;
Hebron, 684 F.3d at 59; cf. United States v. Juarez-Duarte, 513 F.3d 204, 211
(5th Cir. 2008) (noting that obstruction of justice typically precludes credit for
acceptance of responsibility); United States v. Rickett, 89 F.3d 224, 227 (5th Cir.
1996) (denying credit due to continued criminal activity).
We reject Thomas’s contention that, because his crime involved altering
legitimate bank notes, the district court wrongly applied U.S.S.G. § 2B5.1 to
determine his base offense level. That counterfeiting Guideline has been
applicable to altered notes since 2009, and it was properly applied even though
the conspiracy began before the effective date of the amended Guideline because
Thomas continued to commit his crimes beyond its effective date. See United
States v. Olis, 429 F.3d 540, 544-45 (5th Cir. 2005) (noting the applicability of
amended guidelines to continuing offenses).
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No. 12-20594
The district court also properly increased Thomas’s sentence based on a
finding that he obstructed justice by threatening potential witnesses and their
child. His reliance on United States v. Lister, 53 F.3d 66, 69 (5th Cir. 1995), for
the proposition the obstruction increase applies only when the defendant is
aware of an ongoing federal investigation is misplaced and outdated. As of 2006,
the Guidelines provide that the obstruction need only be “with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction”
rather than during the investigation. U.S.S.G. § 3C1.1 (emphasis added).
Under the current Guideline, obstruction “that occurred prior to the start of the
investigation of the instant offense of conviction may be covered by this guideline
if the conduct was purposefully calculated, and likely, to thwart the investigation
or prosecution of the offense of conviction.” § 3C1.1, comment. (n.1). In
Thomas’s case, the threats against witnesses were clearly and explicitly aimed
at thwarting any investigation of his federal crime. See United States v.
Alexander, 602 F.3d 639, 641-42 (5th Cir. 2010) (finding the requisite nexus
between hiding a firearm and a drug offense). This contention is frivolous.
Finally, Thomas fails to show that his sentence was unreasonable. As we
have explained, his challenges to the guideline calculations lack merit. His
consecutive sentences within the proper advisory guideline range are presumed
reasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006)
(applying presumption); see also United States v. Candia, 454 F.3d 468, 473 (5th
Cir. 2006) (applying presumption to consecutive sentences); 18 U.S.C. § 3584
(authorizing consecutive sentences). Thomas’s invitation to adopt his
assessment of the sentencing factors, including his arguments about sentence
disparity, is directly contrary to the deferential review mandated by Gall v.
United States, 552 U.S. 38, 51 (2007). His disagreement with the district court
as to the propriety of the sentence does not rebut the presumption of
reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
The judgment of the district court is AFFIRMED.
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