Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-12-2006
USA v. Thomas
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4523
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"USA v. Thomas" (2006). 2006 Decisions. Paper 335.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No.: 05-4523
UNITED STATES OF AMERICA
v.
CHARLES CHUCK THOMAS
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 02-cr-00061)
District Court: Hon. James T. Giles
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 3, 2006
Before: McKEE, AMBRO, and NYGAARD, Circuit Judges
(filed: October 12, 2006 )
OPINION
McKEE, Circuit Judge
Charles Thomas appeals from the judgment of sentence imposed following his
conviction for mail fraud, wire fraud, money laundering, and making false statements to a
federal agency and to a federally-insured financial institution. For the reasons stated
below, we will affirm.
I.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Because we write primarily for the parties, we have no need to recite the underlying facts
of this case. We note only that the district court initially imposed a sentence of 84 months
of imprisonment, and ordered restitution in the amount of $6,483,493. We remanded for
resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005). On remand, the
district court resentenced Thomas to 48 months imprisonment and reimposed its
restitution in the same amount. This appeal followed.
Thomas argues that the reduced term of imprisonment was an improper ex post
facto application of Booker because “the maximum sentence that could have been
imposed in accord with the Sixth Amendment [before Booker] was 41 months.”
Appellant’s Br. at 16. He also claims that since a jury did not determine the amount of
the loss, the order of restitution violates his Sixth Amendment right to trial by jury. Both
arguments are meritless.
Thomas claims that, because his reduced sentence of 48 months exceeds the base,
offense maximum of 41 months that would have previously applied absent enhancements,
this violated his Fifth and Sixth Amendment rights. However, the Supreme Court
expressly mandated that courts “must apply today's holdings—both the Sixth Amendment
holding and our remedial interpretation of the Sentencing Act—to all cases on direct
review.” Booker, 543 U.S. at 268. Moreover, every court of appeals that has addressed the
argument Thomas makes here has rejected it. See United States v. Lata, 415 F.3d 107,
110-13 (1st Cir. 2005); United States v. Vaughn, 430 F.3d 518, 524-25 (2d Cir. 2005);
United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005); United States v.
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Richardson, 437 F.3d 550, 555 (6th Cir. 2006); United States v. Jamison, 416 F.3d 538,
539-40 (7th Cir. 2005); United States v. Morin, 437 F.3d 777, 780; United States v.
Dupas, 419 F.3d 916, 921-22 (9th Cir. 2005); United States v. Duncan, 400 F.3d 1297,
1306-08 (11th Cir. 2005); United States v. Alston-Graves, 453 F.3d 331, 343 (D.C. Cir.
2006).
That result is not surprising. Thomas clearly had notice of the applicable statutory
maximum before he engaged in the illegal conduct he was convicted of, and nothing in
Booker increased his exposure or altered the legal consequences of his conduct. There is
no such increase or alteration merely because the sentencing court can now exercise its
discretion in selecting an appropriate sentence within the same guideline range that
applied before Booker. Accordingly, there is no ex post facto issue. Thomas’ attempt to
claim a Sixth Amendment violation because the jury did not find the amount of restitution
has already been rejected by this court and is therefore also meritless. See United States v.
Leahy, 438 F.3d 328, 331 (3d. Cir. 2006) (en banc). Accordingly, we will affirm.
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