U.S. v. Thomas

• Decision Date: 26 April 2006
• Docket Number: No. 05-14151. Non-Argument Calendar.,05-14151. Non-Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felix Esteban THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

446 F.3d 1348

UNITED STATES of America, Plaintiff-Appellee, v. Felix Esteban THOMAS, Defendant-Appellant.

No. 05-14151. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 26, 2006.

COPYRIGHT MATERIAL OMITTED

Richard Alan Moore (Court-Appointed), Richard A. Moore, P.A., Miami, FL, for Defendant-Appellant.

Harriett R. Galvin, Anne R. Schultz, Asst. U.S. Atty., Carol E. Herman, Asst. U.S. Atty., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, HULL and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Felix Esteban Thomas appeals his 121-month sentence, which was imposed after he pled guilty to conspiracy to obstruct, delay, and affect commerce by robbery, in violation of 18 U.S.C. § 1951(a). On appeal, Thomas raises the following claims: (1) the district court violated ex post facto and due process principles by sentencing him based on a retroactive application of the remedial opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); (2) the district court violated the Fifth Amendment's Indictment Clause, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Booker, by enhancing his offense level based on facts that were not alleged in the indictment, found by a jury, or admitted by him; and (3) his 121-month sentence was not reasonable. After careful review, we affirm.

I.

We review de novo a defendant's claim that his sentence violated ex post facto principles. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.2004), cert. denied, ___ U.S. ___, 126 S.Ct. 417, 163 L.Ed.2d 318 (2005). A challenge to the application of the Sentencing Guidelines is a mixed question of law and fact. United States v. Anderson, 326 F.3d 1319, 1326 (11th Cir.2003). We review the district court's findings of fact for clear error and its application of the Guidelines to those facts de novo. Id. In reviewing the ultimate sentence imposed by the district court for reasonableness, we consider the final sentence, in its entirety, in light of the § 3553(a) factors. See United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.2005) ("We do not apply the reasonableness standard to each individual decision made during the sentencing process; rather, we review the final sentence for reasonableness."); see also United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005) (holding that pre-Booker standards for reviewing application of the Sentencing Guidelines still apply post-Booker because the "reasonableness" standard applies to the ultimate sentence imposed, not application of individual guidelines). Our "[r]eview for reasonableness is deferential." United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). "[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both th[e] record and the factors in section 3553(a)." Id.

II.

The facts relevant to Thomas's sentencing claims are these. On October 25, 2001, Thomas and five others were indicted for (1) conspiracy to obstruct, delay, and affect commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); (2) conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (Count 2); and (3) two counts of conspiracy to carry a firearm during a drug trafficking crime and crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (o) and 18 U.S.C. § 2 (Counts 3 and 4). Three of Thomas's co-conspirators, Alexander Brazaban, Jorge Martin Pena, and Francisco Isaia Castillo, entered guilty pleas to some of the counts of the indictment. In December of 2002, Brazaban, who pled guilty to Counts 1 and 3, received a sentence of 41 months' imprisonment.¹ On May 21, 2002, Thomas and the two remaining co-conspirators, Miguel Berroa and Ariasmendy Pilier, proceeded to a joint jury trial.

During trial, Detective Juan Sanchez, of the Miami-Dade County Police Department, testified that while working in an undercover capacity, he learned of Thomas's willingness to commit a home invasion robbery. Detective Sanchez testified that he planned to pose as a disgruntled drug courier and ask Thomas for help in robbing the people he (Sanchez) claimed to work for. Another undercover officer gave Detective Sanchez's phone number to Thomas. Detective Sanchez and Thomas had numerous phone conversations and also met in person several times. During one of their meetings, Detective Sanchez relayed the situation to Thomas and asked him if he was able commit the robbery and Thomas answered affirmatively.

After they had discussed the logistics of the robbery, Thomas told Detective Sanchez to provide the address of his next cocaine delivery and indicated that the robbery would take place then. Thomas said that he would recruit at least three or four people to help him commit the robbery. Detective Sanchez told Thomas that he would be transporting a minimum of 25 kilograms of cocaine and at some point during their discussions, Thomas indicated he was aware that one kilogram of cocaine was worth $100,000. Thomas also said that he previously had committed a home invasion robbery and that he had tied up the victims. Detective Sanchez responded that he wanted to be tied up if everyone else was going to be tied up. During a later meeting, Thomas told Detective Sanchez that he had recruited four more people to assist in the robbery. Thomas explained that they were going to leave Sanchez tied up inside the house during the robbery. On the day of the planned robbery, Thomas and five co-conspirators met at a prearranged meeting place and proceeded to a warehouse where Detective Sanchez called Thomas and gave him the address for the robbery. The conspirators subsequently were arrested and four firearms were found in one of their vehicles.

Co-conspirator Castillo testified that Thomas discussed the robbery with him on three occasions, and that he accompanied Thomas to meet with Detective Sanchez on one occasion. On the day of the planned robbery, when the conspirators met, Thomas brought with him four guns that he said would be needed to commit the robbery. Castillo testified that he understood the plan was to steal approximately 25 kilograms of cocaine.

The jury acquitted Thomas of one of the firearms charges (Count 4) but could not reach a verdict on the remaining counts, and the district court declared a mistrial as to those counts. Co-defendants Berroa and Pilier were acquitted of Counts 2, 3, and 4 and the district court declared a mistrial on Count 1. Berroa, Pilier, and Thomas subsequently pled guilty to Count 1 of the indictment. The district court waived the requirement of a presentence investigation report ("PSI") as to Berroa and sentenced him to time served and a 2-year term of supervised release. In exchange for Thomas's plea as to Count 1, the government agreed to dismiss Counts 2 and 3.

During Thomas's plea colloquy, he stated that he understood that the maximum statutory sentence on Count 1 was 20 years' imprisonment, and that the district court would determine the appropriate punishment pursuant to the advisory Sentencing Guidelines. Thomas also stated that the facts in the proffer he signed were correct. The factual proffer stated, among other things, that in September and October 2001, Thomas conspired with his co-defendants to commit a robbery of cocaine. Thomas had been contacted by an undercover law enforcement officer named "Juan," who was posing as a person working for Colombian cocaine traffickers. Thomas agreed to follow Juan during one of his cocaine deliveries to the Colombians. Thomas and his co-defendants planned to enter the residence and take the cocaine by threat or force. Thomas and his co-defendants went to a location where they were supposed to wait for Juan to call them and tell them the location of the delivery. Each of them was ready and willing to commit the robbery. At the meeting place, where the conspirators were arrested, law enforcement found four firearms in a bag located in the car with two of the conspirators. After the district court accepted Thomas's guilty plea, he proceeded to sentencing.

The PSI calculated a base offense level of 20, pursuant to the guideline for robbery, U.S.S.G. § 2B3.1(a), and recommended the following adjustments: (1) a 5-level increase pursuant to § 2B3.1(b)(2)(C) because a firearm was brandished or possessed; (2) a 2-level increase pursuant to § 2B3.1(b)(4)(B) because a person was physically restrained; (3) a 1-level increase pursuant to § 2B3.1(b)(6) because a controlled substance was the object of the offense; (4) a 3-level increase pursuant to § 2B3.1(b)(7)(D) because the loss amount was more than $250,000, but not more than $800,000; and (4) a 4-level increase pursuant to § 3B1.1(a) because Thomas was an organizer or leader in the criminal activity. After a 2-level decrease for Thomas's acceptance of responsibility, his adjusted offense level was 33. With a criminal history category I, Thomas faced a Guidelines range of 135 to 168 months' imprisonment.

Thomas filed two sentencing objections, both of which related to Blakely or Booker or both. He asserted that the application of Booker's remedial holding to render the Guidelines range advisory in his case violated ex post facto principles. He argued that because the Guidelines were not advisory when he committed the crime, they could not be applied as advisory to his disadvantage. Instead, Thomas urged that the pre-Booker mandatory regime, as constrained by Blakely, controlled and required the facts supporting the enhancements in the PSI to be charged in the indictment and proven to a jury or agreed to by him. He also objected to every enhancement applied to his base offense level under Blakely and Booker because the facts supporting the enhancements were not found by a jury or...