United States v. Thomas, 19-3015

• Decision Date: 11 June 2021
• Docket Number: No. 19-3015,19-3015
• Citation: 999 F.3d 723
• Parties: UNITED STATES of America, Appellee v. Keniel Aeon THOMAS, also known as David Morgan, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

999 F.3d 723

UNITED STATES of America, Appellee

v.Keniel Aeon THOMAS, also known as David Morgan, Appellant

No. 19-3015

United States Court of Appeals, District of Columbia Circuit.

Argued November 19, 2020

Decided June 11, 2021

Rosanna M. Taormina, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Kathryn L. Rakoczy, Assistant U.S. Attorneys.

Before: Henderson and Garland,^* Circuit Judges, and Ginsburg, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge Henderson

Ginsburg, Senior Circuit Judge:

Keniel Thomas, a resident of Jamaica, pleaded guilty to one count of interstate communication with intent to extort, in violation of 18 U.S.C. § 875(b), after botching a lottery scam.¹ In the plea agreement, Thomas waived most of his rights to appeal. He retained only the rights to claim he received ineffective assistance of counsel and to appeal any upward departure from the sentencing guidelines range calculated by the district court. At sentencing, the district court did depart upward and sentenced Thomas to nearly six years’ imprisonment.

Thomas mounts several challenges to his sentence. First, he argues the Government plainly breached the plea agreement at sentencing. We disagree. Second, he claims his waiver of rights to appeal is unenforceable and then raises four issues within the scope of the waiver. We assume without deciding the waiver was ineffective and reject these challenges on their merits. Third, Thomas argues the district court abused its discretion by departing upward from the guidelines range. We find no abuse of discretion. Finally, Thomas claims his attorney made mistakes at sentencing and during the plea bargaining process that deprived him of his right to the effective assistance of counsel under the Sixth Amendment to the Constitution of the United States. We remand some of Thomas's ineffective assistance claims to the district court for further fact-finding and deny the rest.

I. Background

We first discuss the plea agreement and the stipulated facts. After that, we summarize additional evidence the Government presented with its sentencing memorandum and the proceedings at the sentencing hearing.

A. The plea agreement

As part of his plea agreement, Thomas stipulated to a statement of offense that established the following facts.

***

In June 2014, Thomas made a call to William Webster, whom Thomas knew to be an elderly former judge. Thomas identified himself as the head of the Mega Millions lottery and told the Judge he was the winner of an eight-figure prize. To collect it, Webster needed only to make an advance payment of $50,000 to cover taxes. If Thomas thought Judge Webster would be easily fooled due to his advanced age, then he was seriously mistaken. Perhaps unbeknownst to Thomas, he was trying to scam a man who once headed the Federal Bureau of Investigation. After hanging up with Thomas, Judge Webster phoned the Bureau.

The next day, Judge Webster called Thomas back, this time recording their conversation for the FBI. Thomas restated many of his falsehoods from the day before, except this time the fake prize amount quadrupled and the fake tax payment dropped to $20,000. Judge Webster humored Thomas, but did not agree to anything. Undeterred, Thomas made several more calls to Judge Webster over the following month.

Eventually Thomas became frustrated and resorted to threats instead of false promises. On July 17, he called Judge Webster's home phone and reached his wife, Lynda Webster. Thomas demanded the Websters pay him $6,000. If they did not pay him, then he would have both of them killed by a sniper and set fire to their home. To make his threats more plausible, Thomas recounted personal identifying information about the Judge, including his previous employment. He further told Mrs. Webster he had been surveilling her home. He correctly described the house and correctly stated no one had been home the previous evening.

Thomas made more threats in additional conversations with Mrs. Webster over the following days. On July 21, in an especially shocking outburst, Thomas told her, "it is so easy killing you, you just a take a shot and put it in your sniper, aim, and the back of the head ... all you see is blood and marrow flying out." He urged the Websters to pay him $6,000 in order to avoid this fate.

Having no success in securing the $6,000, Thomas apparently gave up on the Websters. Three years later, federal agents arrested him entering the United States at a New York airport.

***

In a deal with the Department of Justice, Thomas admitted to the facts above and pleaded guilty to one count of interstate communication with intent to extort, 18 U.S.C. § 875(b). In exchange, the Department agreed not to bring any additional charges.

In the plea agreement, the parties estimated his offense level under the Sentencing Guidelines at 20, comprising a base offense level of 18, U.S.S.G. § 2B3.2 ; a two-level increase because his extortionate conduct included death threats, U.S.S.G. § 2B3.2(b)(1) ; a one-level increase because he tried to extort more than $20,000, U.S.S.G. § 2B3.2(b)(2) ; a two-level increase for conduct aimed a vulnerable victim, U.S.S.G. § 3A1.1 ; and a three-level decrease for acceptance of responsibility, U.S.S.G. § 3E1.1. Thomas had no prior criminal convictions, so this offense level resulted in an estimated guidelines range of 33 to 41 months in prison. See U.S.S.G. § 5A. In the agreement, Thomas waived his right to appeal "except to the extent" the court sentenced him "above the statutory maximum or the guidelines range determined by the Court" but he reserved the right to claim he received ineffective assistance of counsel.

B. Sentencing

After Thomas pleaded guilty, the Government submitted a sentencing memorandum accompanied by 38 exhibits, which gave a fuller picture of the FBI's investigation than had the statement of offense. The evidence suggested a long-running and intricate conspiracy. According to the sentencing memorandum, it was not Thomas but his associate "Stone" who first contacted Judge Webster. In March 2014, Stone called Judge Webster, informed him he had won the lottery, and instructed him to send $1,000 to a California man identified in the record as "P.W." Judge Webster immediately contacted the FBI.

At the Bureau's request, Judge Webster stayed in phone and email contact with Stone, and his associates "Dudley," "Reinhardt," "Davis," and "Winslow" over the next few months. The FBI's investigation revealed P.W. was a victim who had been tricked into serving as a "money mule" for Thomas and his associates. The FBI identified dozens of other victims in the United States, many of them elderly. Agents were able to trace over $300,000 of payments flowing to Thomas and his associates, but estimated the total loss was much higher. For instance, one eighty-two year old victim claimed to have lost over $600,000, although the FBI was able to trace less than one-third of his loss.

Thomas did not dispute any of these facts in his sentencing memorandum. At the sentencing hearing, however, Thomas's attorney objected to a paragraph in the presentence investigation report (PSR) prepared by the Probation Office that mentioned there were victims besides the Websters. The district judge overruled the objection after an FBI agent testified to the findings of the investigation. The agent's testimony corroborated the evidence in the Government's sentencing memorandum (and thus the disputed paragraph of the PSR). The court accepted the unrebutted evidence presented in the sentencing exhibits and the agent's testimony as its findings of fact.

The district court went on to impose a sentence longer than the Government had requested. The court applied an offense-level enhancement not mentioned in the plea agreement because it found Thomas "demonstrated the ability to carry out" his threats. See U.S.S.G. § 2B3.2(b)(3)(B)(ii). This brought the sentencing guidelines range up to 46-57 months. The court then applied two upward departures suggested in the Extortion Guideline: one for extortion that "involved organized criminal activity" and one for "a threat to a family member of the victim." U.S.S.G. § 2B3.2 cmt. n.8. As a result, the court sentenced Thomas to 71 months in prison, 30 months more than the maximum estimated in the agreement.

II. Analysis

We begin our analysis with the alleged breach of the plea agreement. Second, we analyze the waiver of appellate rights in the plea agreement and the issues that it arguably bars. Third, we review the district court's decision to depart from the guidelines range. In the final section, we address Thomas's ineffective assistance of counsel claims.

A. Breach of plea agreement

In the plea agreement, the Government promised it would not "seek any offense-level calculation different" from the calculation in the agreement. ECF No. 20, at 4. On appeal, Thomas argues the Government breached the plea agreement by seeking a sentencing enhancement for a demonstrated ability to carry out an extortionate threat.

Because Thomas did not object at sentencing, our review is for plain error. Puckett v. United States , 556 U.S. 129, 133-34, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). We may reverse only if any breach (1) was "clear or obvious, rather than subject to reasonable dispute," (2) prejudiced the defendant, and (3) resulted in a miscarriage of justice. Id. at 135, 129 S.Ct. 1423. We find no breach here regardless of the standard of review.

The Government did not mention the demonstrated-ability enhancement in its sentencing memorandum. At the sentencing hearing, the judge on her own initiative asked the prosecutor about it. The prosecutor, noting he was in an "unfortunate and somewhat...