NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-3549

_____________

UNITED STATES OF AMERICA

v.

TRAVIS THOMAS, 

also known as Mush,

 Appellant 

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-16-cr-00324-01)

District Judge: Hon. Susan D. Wigenton

_______________

Submitted Under Third Circuit LAR 34.1(a)

September 11, 2018

Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges

(Filed: October 9, 2018)

_______________

OPINION∗

_______________

 ∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

JORDAN, Circuit Judge.

Travis Thomas appeals his sentence after pleading guilty to drug-related charges. 

We will affirm.

I. BACKGROUND

A. Indictment And Guilty Plea

A grand jury in Newark, New Jersey, indicted Thomas on one count of conspiracy 

to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846, and seven 

counts of distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 

18 U.S.C. § 2. The indictment also named two co-conspirators, Jason Wheeler, who was 

charged in six of the counts, and Sterling McCoy, who was charged in three of the 

counts. 

Wheeler and McCoy each pled guilty to the conspiracy charge, pursuant to plea 

agreements with the government. The Court sentenced Wheeler to 24 months of 

imprisonment to be followed by three years of supervised release, and it sentenced 

McCoy to 60 months imprisonment to be followed by five years of supervised release. 

Thomas, on the other hand, chose to proceed to trial.

The Court commenced jury selection for Thomas’s trial. But before it completed

that task, Thomas had a change of heart; he pled guilty to all eight counts without a plea 

agreement. 
3

B. Sentencing Hearing

A presentence report (“PSR”) was prepared, and it recommended applying the 

career offender enhancement pursuant to United States Sentencing Guidelines 

(“U.S.S.G.” or “guidelines”) § 4B1.1(b)(1). It identified two of Thomas’s prior 

convictions as qualifying offenses: a conviction for aggravated assault with a deadly 

weapon and a conviction for distribution of a controlled dangerous substance, both under 

New Jersey law. But the PSR did not list the particular statutory subsections of Thomas’s 

prior convictions. 

With the career offender enhancement, the guidelines offense level was 37, but the 

PSR then applied a two-point reduction for acceptance of responsibility pursuant to 

guidelines § 3E1.1, leaving a total offense level of 35. The PSR recommended a criminal 

history category of VI, also because of the career offender enhancement. The resulting 

recommended guidelines imprisonment range for Thomas was 292 to 365 months. 

Thomas opposed the suggested application of the career offender enhancement. 

Although he conceded that his controlled substance conviction was a qualifying offense, 

he objected to the PSR’s classification of his conviction for aggravated assault with a 

deadly weapon as being categorically a crime of violence. He also objected to the PSR’s 

failure to include an additional one-point reduction under § 3E1.1(b) for his acceptance of 

responsibility. 

After considering the parties’ arguments and submissions, the District Court 

concluded that the career offender enhancement applied to Thomas because “the 

conviction for aggravated assault with a deadly weapon ... is unequivocally an act of 
4

violence[,]” especially given “the background and the factual information that is set forth 

in [the PSR.]” (App. at 358.) The Court provided no other analysis on that issue.

The District Court then heard arguments from Thomas and the government 

relating to the traditional sentencing factors under 18 U.S.C. § 3553(a). Over Thomas’s 

objection, the Court permitted the government to play a jailhouse recording in which 

Thomas said that, after his time in prison, he would be “shaking and baking” again. 

(App. at 382.) The government argued that the quoted phrase meant “going out and 

continuing to sell drugs or continuing to engage in the other criminal activities with 

which he was involved.” (App. at 382.)

After considering those arguments, the Court sentenced Thomas to 210 months of 

imprisonment, to be followed by eight years of supervised release, and imposed a special 

assessment of $800. It exercised its discretion to impose a sentence below the guidelines 

range and explained that the downward variance was warranted by Thomas’s history, 

background, and various mental and emotional issues. The Court also commented that 

Wheeler and McCoy had received different sentences because their roles in the drug 

conspiracy were different than Thomas’s and because their criminal histories were also 

different than his. It denied Thomas’s request that it recommend mental health and drug 

addiction counseling during his incarceration, but it encouraged Thomas himself to ask 

for and seek those services from the Bureau of Prisons. 

Thomas timely appealed. 
5

II. DISCUSSION1

Thomas raises four arguments concerning his sentence. As explained below, all of 

them are unpersuasive.2

A. The District Court Correctly Sentenced Thomas Under The

Guidelines’ Career Offender Enhancement.

“Whether a conviction constitutes a crime of violence for purposes of the career 

offender [g]uideline is a question of law over which we exercise plenary review.” United 

States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017) (alteration and citation omitted). 

The only conviction of Thomas’s at issue in this appeal is the one under New Jersey law 

for aggravated assault with a deadly weapon.3

 

 1

 The District Court had jurisdiction under 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 

2

 Thomas also raises an issue that we decline to consider. He argues that the 

Court violated his Fifth Amendment right to due process by not holding an evidentiary 

hearing regarding property that was seized from him or by not requiring the government 

to return that property. Citing United States v. Chambers, 192 F.3d 374 (3d Cir. 1999), 

he argues that seized property must be returned once criminal proceedings have 

concluded. Federal Rule of Criminal Procedure 41(g) permits a criminal defendant to 

move for the return of property by filing a motion in the district where the property was 

seized. Although Thomas mentioned to the District Court at his sentencing hearing that 

there was jewelry of his still in the government’s possession, we have not seen in the 

record any evidence that he filed the motion allowed by Rule 41(g). We decline to 

consider now an issue that should be decided by the District Court in the first instance, if 

a decision is required at all. We trust that the government understands its obligations and 

will return the property in question promptly or seek its forfeiture, if that step is 

warranted.

3 Again, Thomas conceded that his other predicate conviction, the one for 

distribution of a controlled dangerous substance, was a qualifying offense under the 

guidelines. 
6

Thomas argues that the District Court erred by sentencing him as a career offender 

without analyzing whether that conviction was categorically a crime of violence, pursuant 

to Johnson v. United States, 135 S. Ct. 2551 (2015). In response, the government 

acknowledges that copies of the judgment orders related to his predicate convictions were 

not included in the parties’ sentencing submissions. It has, however, provided them to us 

on appeal and argues that they show Thomas was convicted of third degree aggravated 

assault with a deadly weapon under N.J.S.A. § 2C:12-1(b)(2).

4

 The government then

contends that N.J.S.A. § 2C:12-1(b)(2) is categorically a crime of violence under the 

modified categorical approach. Thomas does not contest the validity of those documents 

but, in his reply brief, he argues that the District Court’s decision to apply the 

enhancement should be reversed. 

We may consider evidence outside of the record before the District Court when “it 

would be pointless to remand the case simply to have the District Judge take notice of 

that which we may notice ourselves.” United States v. Remoi, 404 F.3d 789, 793 n.1 (3d 

Cir. 2005). We therefore take judicial notice of the court records of Thomas’s prior 

conviction because it does not leave any “reasonable dispute” as to the statute under

which Thomas was convicted.

5

 Fed. R. Evid. 201(b). 

 4

 That provision makes one “guilty of aggravated assault if he ... [a]ttempts to 

cause or purposely or knowingly causes bodily injury to another with a deadly 

weapon[.]” N.J.S.A. § 2C:12-1(b)(2).

5

 Our decision to take judicial notice of those records should not, however, be 

taken as license for the government to ignore the need to make an appropriate record at 

sentencing. 
7

Although we agree with Thomas that it was error for the District Court to have

strayed from the categorical approach when analyzing his conviction,

6 that error was 

harmless because, as stated in our recent precedential opinion in United States v. 

Abdullah, --- F.3d ---, No. 18-1082, 2018 WL 4702225 (3d Cir. Oct. 2, 2018), a 

conviction under N.J.S.A. § 2C:12-1(b)(2) is categorically a crime of violence.7

 Id. at *6. 

We reasoned that § 2C:12-1(b) is divisible, id. at *3-*4, that the defendant in that case 

was convicted of subsection (2) of that provision, id. at *4, and that that subsection 

necessarily requires the government to prove “the use, attempted use, or threatened use of 

physical force against the person of another[,]” as required by the elements clause of the 

guideline’s definition of crime of violence, id. (citation omitted). Thus, a prior 

conviction under N.J.S.A. § 2C:12-1(b)(2) categorically qualifies as a crime of violence. 

Id. at *5.

Thomas therefore has at least two prior offenses that qualify him as a career 

offender. The District Court was correct to sentence him as such under § 4B1.1 of the 

guidelines.

 

6 The District Court should not have considered the factual underpinnings of the 

conviction. See United States v. Abdullah, --- F.3d ---, No. 18-1082, 2018 WL 4702225 

(3d Cir. Oct. 2, 2018) at *3 (“Under the categorical approach, we must ignore the actual 

manner in which the defendant committed the prior offense and presume that the 

defendant did so by engaging in no more than the minimum conduct criminalized by the 

state statute.” (internal quotation marks and citation omitted)). 

7

 Although we analyzed the 2015 version of the statute in Abdullah, the statute in 

effect at the time of Thomas’s conviction was the 2011 version of N.J.S.A. § 2C:12-

1(b)(2). The 2011 version is identical in all material respects for purposes of this case to 

the 2015 version. Compare N.J.S.A. § 2C:12-1(b) (2011), with id. § 2C:12-1(b) (2015).
8

B. The Court Was Correct Not To Apply An Additional One-Point 

Reduction Pursuant To Guidelines § 3E1.1(b).

Thomas next argues that he was entitled to an additional one-point reduction for 

his acceptance of responsibility pursuant to guidelines § 3E1.1(b) when he pled guilty. 

With respect to § 3E1.1, we review legal conclusions de novo and factual findings for 

clear error. United States v. Williams, 344 F.3d 365, 379 (3d Cir. 2003).

Section 3E1.1(b) permits the government to move for an additional one-point 

reduction to the offense level when the defendant has assisted the government by timely 

notifying the authorities of his intention to plead guilty. U.S.S.G. § 3E1.1(b). District 

courts are without authority to grant that adjustment in the absence of a motion from the 

government, and there is no bad faith exception to that rule when “the government has 

not committed itself in a plea agreement to file such a motion.” United States v. 

Drennon, 516 F.3d 160, 162 (3d Cir. 2008).

Here, the government did not move for an additional one-point reduction, so that 

point was unavailable to Thomas. Indeed, the government was justified in not making 

such a motion because Thomas pled guilty after jury selection had commenced and on the 

eve of trial. He has not and cannot allege bad faith on the part of the government because 

he had no agreement with it. Thus, the Court was correct not to apply that additional 

one-point reduction.

C. The Court Did Not Err In Permitting The Government To Play A 

Jailhouse Recording At The Sentencing Hearing.

Thomas next argues that the Court erred at the sentencing hearing when it allowed 

the government to play a jailhouse recording of one of his conversations. Sentencing 
9

judges have wide discretion in the kinds and sources of information they may consider at 

sentencing, United States v. Leekins, 493 F.3d 143, 151 (3d Cir. 2007), provided that the 

information has “sufficient indicia of reliability to support its probable accuracy[,]” 

United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009) (citation omitted). Thomas does 

not contest the authenticity of the recording, and he cites no legal authority for the 

proposition that it was improper for the District Court to have considered what he said 

after his conviction and while he was imprisoned. We therefore conclude that the Court 

was well within its discretion to allow the government to play the recording.

D. Thomas’s Sentence Is Procedurally And Substantively Reasonable.

Finally, Thomas argues that his sentence of 210 months imprisonment is 

procedurally and substantively unreasonable. He says that the District Court failed to 

adequately consider the § 3553(a) sentencing factors and that, consequently, his sentence 

is “far greater than necessary.” (Opening Br. at 1.) In particular, he emphasizes that his 

sentence is greater than those that Sterling and McCoy received for engaging in the same 

conspiracy. We review procedural and substantive reasonableness of a sentence for an 

abuse of discretion. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008).

As to procedural reasonableness, Thomas points to no specific procedural error, 

and our review of the record reveals none. Based on the sentencing hearing transcript, it 

is apparent that the Court adequately considered the § 3553(a) sentencing factors. It 

discussed Thomas’s role in the offenses that he pled guilty to, his individual background 

and history, his family’s support for him, the seriousness of the offenses, the need to 

promote respect for the law, to protect the community, and to provide deterrence to 
10

Thomas and others. In short, the Court did what needed to be done, and Thomas has not 

shown otherwise.

That procedurally sound approach produced a substantively reasonable sentence. 

A sentence is substantively reasonable “[a]s long as [it] falls within the broad range of 

possible sentences that can be considered reasonable in light of the § 3553(a) factors[.]” 

Wise, 515 F.3d at 218. We will reverse a sentence only if “no reasonable sentencing 

court would have imposed the same sentence on that particular defendant for the reasons 

the district court provided.” United States v. Jackson, 862 F.3d 365, 394 (3d Cir. 2017)

(internal quotation marks and citation omitted). And we defer to a “district court’s 

decision that the § 3553(a) factors, on a whole, justify the extent of [a] variance.” United 

States v. Ciavarella, 716 F.3d 705, 736 (3d Cir. 2013). 

The Court exercised its discretion here by varying downward and imposing a 

sentence that was 82 months less than the bottom of Thomas’s guideline range. That 

choice was not an abuse of discretion, given the Court’s consideration of Thomas’s 

history, background, and various mental and emotional issues. Although Thomas 

received a sentence that was greater than those of his co-conspirators, that was because, 

as the Court explained, his role in the conspiracy and his criminal history were different

than theirs. That the District Court did not recommend mental health and drug addiction 

counseling for Thomas during his incarceration but instead left it to him to seek those 

services from the Bureau of Prisons does not change the reasonableness of the sentence. 

Although Thomas may disagree with the sentence he received, it was not substantively 

unreasonable.
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III. CONCLUSION

For the foregoing reasons, we will affirm.