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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13632
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-00255-JEC- 1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOBIAS A. THOMAS,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(April 24, 2013)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Tobias Thomas appeals his sentence of 12 months and a day in prison and
12 months of supervised release, which the district court imposed after revoking
his previous term of supervised release. Mr. Thomas asserts that the district court
erred in imposing this sentence because (1) it was not supported by the court’s
findings of fact, (2) the court failed to act as a neutral and detached decision-
maker, and (3) the sentence is substantively unreasonable.
Mr. Thomas was originally placed on supervised release after serving a
prison sentence for possession of counterfeit securities. Under the conditions of his
release, Mr. Thomas was required to maintain employment, make monthly
restitution payments, and refrain from committing another criminal offense. Less
than three months before his three-year term of supervised release was scheduled
to end, a warrant was issued for his arrest in an unrelated matter involving an
alleged forgery at a hotel (in which Mr. Thomas allegedly attempted to pass
himself off as a hotel employee to obtain a room discount). His federal probation
officer petitioned for revocation of supervised release based on this warrant and
missed restitution payments.
During the revocation proceedings, Mr. Thomas admitted that he presented a
false identification card during the hotel incident in question, but argued that his
conduct did not amount to forgery under Georgia law. The court found that Mr.
Thomas violated the terms of his supervised release by committing a forgery and
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failing to remain current on his restitution payments.
On appeal, Mr. Thomas objects to three findings of fact by the district court:
(1) that he threatened the hotel employee; (2) that he made or knew who made the
fraudulent identification card; and (3) that his prior criminal history included
various bad acts. He contends that these allegedly unsupported findings negatively
affected his sentence. We generally review a district court’s findings of fact for
clear error, see United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993), but
our review of the findings relating to criminal history is limited to plain error
because Mr. Thomas did not object to them in the district court. See United States
v. White, 416 F.3d 1313, 1316 (11th Cir. 2005).1
We find no error as to the first two findings of fact. The district court heard
testimony directly from the hotel employee regarding the threats made by Mr.
Thomas, and was entitled to credit this testimony. See United States v. Copeland,
20 F.3d 412, 413 (11th Cir. 1994) (per curiam). Additionally, we note that the
finding did not appear to affect the district court’s sentence. See D.E. 44 at 202
(“Mainly what I focus on is not this stray thing of whether he threatened her or
not.”). As for Mr. Thomas’ personal involvement in making the fraudulent card,
that finding had no bearing on whether he committed forgery, see O.C.G.A. § 16-
1
Although the government argues that Mr. Thomas did not object to any of these factual
findings in the district court, the record indicates he did argue that the hotel employee’s
testimony was not credible, see D.E. 44 at 154–59, and that there was no record evidence
indicating that Mr. Thomas made, or knew who made, the fraudulent card, see D.E. 44 at 143–
44.
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9-1(b) (forgery requires intent to defraud by a person who “knowingly makes,
alters, or possesses” the fraudulent writing), nor did it appear to affect his sentence.
The dispositive issue was whether Mr. Thomas had intent to defraud, and the
district court specifically found that he did.
Under plain error review, Mr. Thomas must show that there is (1) an error,
(2) that is plain, (3) that affected his substantial rights, and (4) that seriously
affected the fairness, integrity, or public reputation of the judicial proceeding. See
White, 416 F.3d at 1316. Although the district court appears to have
mischaracterized his criminal history, Mr. Thomas is unable to show that his
substantial rights were affected, or that the fairness and integrity of the proceeding
can be called into question. See United States v. Rodriguez, 398 F.3d 1291, 1299
(11th Cir. 2005). Nothing in the record indicates a reasonable probability that his
sentence would have been different but for these factual errors. See id.
Mr. Thomas also contends that he was denied due process because the
district court was biased against him. He cites multiple instances during the
revocation proceeding in which the district court disparaged his involvement in the
hip-hop industry. For example, the court stated that hip-hop is “a culture that is not
the best environment for somebody. Often there is a lot of drugs . . . [and] a lot of
thuggery.” D.E. 44 at 151. Mr. Thomas argues that the district court’s view of the
hip-hop industry (and his association with it) resulted in a harsher sentence than
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would otherwise have been imposed. We disagree.
Although Mr. Thomas alleges a constitutional violation, which normally
triggers de novo review, see Johansen v. Combustion Eng., Inc., 170 F.3d 1320,
1334 (11th Cir. 1999), we review for plain error because Mr. Thomas did not make
his due process argument before the district court. See United States v. Olano, 507
U.S. 725, 731–37 (1993). We conclude that the district court’s statements do not
rise to the level of bias constituting plain error. As the Supreme Court has said,
“judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge.” Liteky v. United States, 510 U.S. 540, 555 (1994)
(analyzing the judicial recusal standard). See also Brough v. Imperial Sterling Ltd.,
297 F.3d 1172, 1180–81 (11th Cir. 2002) (“Comments by the trial judge will cause
reversal only where the comments ‘excite prejudice which would preclude a fair
and dispassionate consideration of the evidence.’”). Even if the district court’s
attitude toward the hip-hop industry originated from an extrajudicial source, such
that it might support a finding of bias, see Liteky, 510 U.S. at 555, any error did not
seriously affect the fairness or integrity of the proceeding.
Finally, Mr. Thomas argues that the district court’s sentence was
substantively unreasonable. We review substantive reasonableness for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). Guided by the
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factors set forth in 18 U.S.C. § 3553(a), the district court imposed a sentence of 12
months and one day in prison, followed by 12 months of supervised release. This
sentence was within the advisory guidelines range, and we ordinarily expect, but
do not automatically presume, that such a sentence is reasonable. See United States
v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). The district court fully discussed Mr.
Thomas’ personal, criminal, and employment history, and concluded that some
prison time and an additional term of supervised released were necessary in light of
Mr. Thomas’ prior history with fraud. We find no abuse of discretion.
AFFIRMED.
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