                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2005

USA v. Thomas
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4447




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"USA v. Thomas" (2005). 2005 Decisions. Paper 814.
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                                                  NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                           No. 03-4447


                UNITED STATES OF AMERICA

                                v.

                     MARSHAUN THOMAS
                                 Appellant


          On Appeal from the United States District Court
                    for the District of New Jersey
                      (D.C. No. 01-cr-00058-1)
          District Judge: Honorable Katharine S. Hayden




            Submitted Under Third Circuit LAR 34.1(a)
                        October 7, 2004

                   Decided November 26, 2004

               On Remand from the Supreme Court
                of the United States June 20, 2005

Before: SLOVITER, VAN ANTWERPEN, and COWEN, Circuit Judges.

                      (Filed: July 20, 2005)




                            OPINION
SLOVITER, Circuit Judge.

       This matter is before us on remand by the United States Supreme Court. This

court, by way of an opinion filed November 26, 2004, affirmed Marshaun Thomas’

judgment of conviction for violation of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1962(c), and his sentence of 360 months

incarceration (less time served in state custody). United States v. Thomas, 389 F.3d 424

(3d Cir. 2004). In so doing, we rejected Thomas’ argument that he was entitled to

withdraw his guilty plea because of several alleged defects with his Fed. R. Crim. P. 11

colloquy. Id. at 428-29. We further rejected his contention that the Supreme Court’s

decision in Blakely v. Washington, 542 U.S. 296 (2004), rendered his sentence

unconstitutional. 389 F.3d at 428. Finally, relying on, inter alia, United States v.

Theodoropoulos, 866 F.2d 587 (3d Cir. 1989), we denied Thomas’ claim of ineffective

assistance of trial counsel without prejudice to his “right to raise the issue in an

appropriate collateral proceeding.” Thomas, 389 F.3d at 429.

       On June 20, 2005, the Supreme Court granted Thomas’ subsequent petition for a

writ of certiorari, vacated the judgment of this court, and remanded the case for further

consideration in light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).

United States v. Thomas,      U.S.    , 125 S. Ct. 2953 (2005) (mem.). Thus, upon further

consideration as directed by the Supreme Court, we reaffirm all portions of our prior

decision with respect to Thomas’ conviction, guilty plea, and claim of ineffective



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assistance of counsel, including our discussion of the facts admitted by the defendant, and

incorporate by reference herein those portions of our prior opinion. On the other hand,

having determined that the sentencing issues Thomas has raised are, in light of Booker,

best addressed by the District Court in the first instance, see generally United States v.

Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we will vacate that portion of our judgment

that affirmed the judgment of sentence and remand to the District Court for resentencing.

Compare with United States v. Agnew, 407 F.3d 193, 195 (3d Cir. 2005) (“In vacating

the judgment, the Supreme Court did not indicate any disagreement with our analysis

wherein we affirmed Agnew’s conviction. [Thus], we will again affirm the conviction . .

. [h]owever, having concluded that the sentencing issues based on Booker are best

determined by the District Court in the first instance, we will vacate the sentence and

remand. . . .”).

       For the foregoing reasons, we will reaffirm Thomas’ conviction, reaffirm our

denial of his ineffective assistance of counsel claim without prejudice, vacate his

sentence, and remand to the District Court for resentencing in accordance with Booker.




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