Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 1, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 22-6041
v. (D.C. No. 5:20-CR-00212-PRW-1)
(W.D. Okla.)
MARIO LAIVEL THOMAS,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Mario Laivel Thomas pleaded guilty to two counts of being a felon illegally in
possession of a firearm. See 18 U.S.C. § 922(g)(1). The district court departed
and/or varied upward substantially from the advisory range set out in the United
States Sentencing Guidelines. Thomas’s counsel filed a timely notice of appeal.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Thereafter, however, counsel filed in this court a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting they could find no meritorious basis
for appeal and moving to withdraw as counsel. For those reasons set out below,
this court grants counsel’s motion to withdraw and dismisses this appeal.
On May 11, 2020, local Oklahoma police officers were dispatched to a
convenience store based on a report of a vehicle hitting a gas pump and fleeing
the scene. An officer initiated a traffic stop near the store and made contact with
Thomas, the driver of the vehicle. When Thomas exited the vehicle, a firearm
fell from his lap onto the ground. Officers detained Thomas and confiscated a
loaded .380 Bersa Thunder. An officer cleared the weapon of one chambered
round of ammunition and a six-round magazine. Officers located a second seven-
round magazine in the vehicle’s driver’s seat. Thomas, who appeared lethargic,
was “drooling” from the mouth, drifting in and out of consciousness, and unable
to answer any of the officers’ questions. Thomas was transported to the hospital
for further observation. A juvenile passenger, who also appeared to be under the
influence of drugs, was also inside of the vehicle. She stated she and Thomas had
taken Percocet prior to arriving at the convenience store.
On August 9, 2020, officers were dispatched to a residence based on a
reported disturbance involving a firearm and shots fired. It was noted that people
were screaming for help. As officers approached the scene, they observed two
male subjects and a female subject fighting in the roadway. When Thomas, one
of the male subjects, noticed the officers, he fled the scene towards a residence.
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As officers exited their patrol cars, one of the subjects who had been fighting,
P.Y., yelled that Thomas had a firearm. Officers retreated until additional units
arrived, including air support and a K-9 unit, noting there were several other
subjects outside of the property as well as a pit bull. P.Y. told the officers the
residence was occupied by his mother, R.D. P.Y. had come to visit R.D. and, as
he approached the driveway, Thomas, his mother’s domestic partner, started a
physical confrontation with him. P.Y. stated he fought back and the fight
continued into the roadway. According to P.Y., Thomas fired at least two rounds
toward him.
Additional officers arrived on the scene and searched the immediate area of
R.D.’s residence. After numerous verbal commands, Thomas exited a travel
trailer in R.D.’s backyard and surrendered. Officers searched the area and
located two spent .380 shell casings in the roadway. R.D. and Thomas consented
to a search of the premises. Officers located a black .380 caliber Smith and
Wesson M & P handgun that was loaded with four rounds of .380 ammunition. A
check of the firearm’s serial number confirmed it had been reported stolen.
Thomas was Mirandized and agreed to speak with one of the officers. After
initially denying that the gun belonged to him, Thomas admitted he possessed the
firearm during the altercation and that it had “went off.” He stated he was
defending himself with the firearm because P.Y. attacked him and he did not
understand why he would be in trouble.
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After a federal grand jury returned a superseding indictment charging
Thomas with, inter alia, two § 922(g)(1) counts based on the events recounted
above, Thomas entered a plea agreement that disposed of the case. In exchange
for pleading guilty to the two § 922(g)(1) counts and waiving the overwhelming
majority of his appellate rights, the government agreed to dismiss the original
indictment, dismiss an additional § 922(g)(1) count, and recommend that
Thomas’s total offense level be adjusted downward based on acceptance of
responsibility. And, most importantly, the state of Oklahoma agreed that any
sentence it obtained in parallel state-court criminal proceedings involving
Thomas would run concurrently with any sentence imposed in this case. The
district court conducted a change of plea hearing and concluded Thomas had
knowingly, voluntarily, and intelligently agreed to plead guilty. Accordingly, the
district court accepted Thomas’s plea and found him guilty of the relevant
§ 922(g)(1) charges. Thomas’s criminal history category VI, when combined
with his total offense level of 23, resulted in an advisory sentencing range of 92
to 115 months’ imprisonment. The PSR further noted, however, that an upward
variance or departure would be appropriate to account for Thomas’s
extraordinarily extensive and violent criminal history and his use of a firearm in
the commission of one of the § 922(g)(1) convictions. Thomas filed objections to
portions of the PSR noting the possibility of an upward departure and/or variance.
Thomas also addressed the propriety of an upward variance or departure in his
sentencing memorandum.
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The district court held a sentencing hearing on March 2, 2022. After
listening to extensive arguments from Thomas’s counsel, the district court
concluded a sentence of 180 months’ imprisonment was appropriate, whether
imposed as an upward variance or upward departure. The district court focused
on the following in reaching that conclusion: (1) Thomas’s extensive and violent
criminal history, a history the district court found was the most extensive it had
seen; (2) the fact much of the violence was directed at women and Thomas’s
domestic partners; and (3) Thomas’s discharge of a stolen gun during the
commission of one of the underlying crimes while on pretrial supervision for the
second underlying crime. The district court concluded that none of Thomas’s
personal characteristics, particularly his long-term drug use, mitigated his
culpability or his future dangerousness to society. Finally, in its statement of
reasons attached to the judgment, the district court justified the upward departure
by reference to the inadequacy of the advisory sentence range in accounting for
Thomas’s extensive criminal history, U.S.S.G. § 4A1.3, and his discharge of a
firearm during an underlying offense, id. § 5K2.6. The district court’s statement
of reasons likewise noted the 180-month sentence was justified as an upward
variance to account for the extreme nature of the offense involving the discharge
of a firearm, the extensive nature of Thomas’s criminal history, and the need to
protect the public from further crimes by Thomas. See 18 U.S.C. § 3553(a)(1),
(a)(2)(C).
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This appeal is before the court on Thomas’s counsel’s Anders brief.
Pursuant to Anders, counsel may “request permission to withdraw where counsel
conscientiously examines a case and determines that any appeal would be wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
Counsel is required to submit an appellate brief “indicating any potential
appealable issues.” Id. Once notified of counsel’s brief, the defendant may then
submit additional arguments to this court. Id. We “must then conduct a full
examination of the record to determine whether defendant’s claims are wholly
frivolous.” Id. Despite being notified of his entitlement to do so on multiple
occasions, Thomas did not file a brief in response to counsel’s Anders brief. The
government declined to file a brief. Thus, our resolution of the case is based on
counsel’s Anders brief and this court’s independent review of the record. That
independent review demonstrates any potential issue that would be raised on
appeal is wholly frivolous.
Counsel asserts they have conscientiously reviewed the record in this case
and cannot assert a non-frivolous basis to challenge either the validity of
Thomas’s convictions or sentence. As counsel correctly recognizes at the outset,
the arguments Thomas may raise are significantly narrowed by the appellate
waiver in his plea agreement. Thomas specifically waived the right to appeal his
guilty plea “and any other aspect of [his] conviction, including but not limited to
any rulings on pretrial suppression motions or any other pretrial dispositions of
motions and issues.” Regarding his sentence, the waiver bars arguments based on
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“the manner in which the sentence is determined” allowing only an appeal
challenging the substantive reasonableness of any sentence imposed in excess of
the top of the advisory Guidelines range. For that reason, many of the issues
identified by counsel on appeal would be barred by the waiver even if they were
not frivolous.
According to counsel, Thomas contends he did not know it was possible for
the district court to impose consecutive sentences. Even if viewed as a challenge
to the substantive reasonableness of his sentence, and thus outside the limitations
of the appellate waiver, this argument is frivolous. Thomas’s petition to enter a
guilty plea and the plea agreement itself specifically note that the district court
had discretion to sentence him to the statutory maximum sentence on each count
of conviction and to run the sentences consecutively.
Counsel notes that it might be possible to argue Thomas was not provided
adequate notice of the possibility of an upward departure. See Fed. R. Crim. P.
32(h). Counsel correctly concedes such an argument would be frivolous for two
independent and equally dispositive reasons. First, the district court imposed its
sentence after concluding it was justified as either an upward departure or upward
variance. The notice requirement set out in Rule 32(h) does not apply to
variances. Irizarry v. United States, 553 U.S. 708, 716 (2008); United States v.
Lymon, 905 F.3d 1149, 1155 n. 4 (10th Cir. 2018). Thus, any error in failing to
provide notice with regard to the departure would be clearly harmless. United
States v. Perez, 806 F. App’x 725, 728–29 (11th Cir. 2020); United States v.
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Nelson, 793 F.3d 202, 206–07 (1st Cir. 2015); United States v. Peninger, 456 F.
App’x 214, 219 (4th Cir. 2011). In any event, the PSR specifically provided
Thomas notice that he faced the possibility of upward departures at sentencing.
Such notice satisfies the requirements of Rule 32(h). See Fed. R. Crim. P. 32(h)
(“Before the court may depart from the applicable sentencing range on a ground
not identified for departure either in the presentence report or in a party’s
prehearing submission, the court must give the parties reasonable notice that it is
contemplating such a departure.” (emphasis added)).
Finally, counsel indicates a conscientious review of the record also
demonstrates any challenge to the substantive reasonableness of Thomas’s 180-
month sentence would be frivolous. This court strongly agrees. A defendant
arguing substantive unreasonableness faces the difficult task of demonstrating the
district court’s sentencing decision “was an abuse of discretion because it was
arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v.
Dunbar, 718 F.3d 1268, 1282 (10th Cir. 2013). That is, Thomas must convince
this court that the district court’s sentencing decision was not “within the range
of possible outcomes that the circumstances fairly support.” United States v.
Lente, 759 F.3d 1149, 1174 (10th Cir. 2014) (quotation omitted). Under this
standard, we “uphold even substantial variances when the district court properly
weighs the § 3553(a) factors and offers valid reasons for the chosen sentence.”
United States v. Gross, 44 F.4th 1298, 1304 (10th Cir. 2022).
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A review of the record leaves no doubt the district court’s sentence,
although reflecting a substantial upward variance, is reasonable. Importantly,
both felon-in-possession convictions involved aggravating factors. As to the
first, those factors included the conduct surrounding Thomas’s possession of the
weapon when he drove into a gas pump while substantially impaired on drugs
with a similarly impaired juvenile in the car. As to the second felon-in-
possession conviction, Thomas discharged the firearm during a violent physical
altercation involving his domestic partner and the domestic partner’s son.
Regarding Thomas’s history and characteristics, the district court emphasized
several times the extensive and violent nature of Thomas’s criminal history.
Indeed, the district court stated it had never seen such an extensive criminal
history. Although Thomas’s counsel argued Thomas’s criminal behavior could be
explained by his drug addiction, the district court reasonably chose not to give
those arguments much weight:
But not every drug user chooses to engage in the type of criminal
violent behavior that you have. So I do think that we have a much
deeper and broader problem than the drug addiction.
Your history reflects from virtually your entire non-adolescent life
and including part of your adolescent life that you’ve chosen crime
and violence. And I’m particularly concerned about the behavior. It
does seem to have escalated very recently. These incidents for
which you were arrested here could have been so much worse.
And even when I look throughout the history, I see so many domestic
incidents that involve violence towards women and partners that you
have that I find extremely troubling and represent a pattern of
criminality that just hasn’t been interrupted for your entire life.
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Considering all the circumstances, there can be no doubt the district court
reasonably concluded a 180-month’s sentence was necessary to protect the public
and reflect the seriousness of Thomas’s crimes of conviction and criminal history.
Pursuant to the Anders mandate, this court has undertaken an independent
review of the entire record in this case. Our review demonstrates that the
potential issues raised in counsel’s Anders brief are undeniably frivolous.
Likewise, this court’s review of the entire record reveals no other potentially
meritorious issues. Accordingly, we GRANT counsel’s motion to withdraw and
DISMISS this appeal.
Entered for the Court
Michael R. Murphy
Circuit Judge
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