IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10840

UNITED STATES OF AMERICA,

Plaintiff– Appellee

v.

TOMMIE RAYMOND THOMAS,

Defendant– Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:12-CR-61-1

Before JONES, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Tommie Raymond Thomas, federal prisoner # 33447-018, appeals the

district court’s revocation of his eight terms of supervised release and the

resulting sentence of 120 months in prison and a three-year term of supervised

release. For the following reasons, we AFFIRM.1 

United States Court of Appeals

Fifth Circuit

F I L E D

January 10, 2014

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 Thomas’s record excerpts include several items that were not filed in the district

court. “We will not ordinarily enlarge the record on appeal to include material not before the

district court.” Gregory v. Thaler, 601 F.3d 347, 353 (5th Cir. 2010). Consequently, insofar

as Thomas’s filings may be read as including an implied motion to supplement the record with

these items, it is DENIED.

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No. 12-10840

Claims of ineffective assistance of counsel generally “cannot be resolved

on direct appeal when the claim[s have] not been raised before the district court

since no opportunity existed to develop the record on the merits of the

allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006)

(internal quotation marks and citation omitted). Thomas’s ineffective assistance

of counsel claims are not ripe for review because the record is insufficiently

developed to allow consideration at this time, thus, we decline to consider these

claims. To the extent that Thomas raises a substantive claim concerning the

district court’s personal jurisdiction over him, Thomas waived this argument by

raising it for the first time in his reply brief. See Carmona v. S.W. Airlines Co.,

536 F.3d 344, 347 n.5 (5th Cir. 2008) (holding that the appellant waived his right

to appeal an issue because he raised it for the first time in his reply brief);

United States v. Muhammad, 165 F.3d 327, 330 (5th Cir. 1999) (personal, but

not subject matter, jurisdiction can be waived). Additionally, to the extent that

Thomas’s jurisdictional challenge concerns the district court’s subject matter

jurisdiction, his argument is unavailing in light of this circuit’s precedent. See

United States v. Fernandez, 379 F.3d 270, 272-73 (5th Cir. 2004) (affirming

revocation of the appellant’s supervised release by the Northern District of

Texas, which accepted jurisdiction over the appellant from the Western District

of Texas, even though one of the bases for the revocation was a new offense that

the appellant had committed in the Northern District of Texas before the

transfer). See also 18 U.S.C. § 3605.

Thomas raises several sentencing challenges, none of which was presented

to the district court. Although this typically results in the application of the

plain error standard, we nonetheless review de novo those claims that raise the

issue whether his sentence was illegal. See United States v. Thomas, 600 F.3d

387, 388 (5th Cir. 2010). 

First, Thomas argues that his consecutive sentences are improper because

the version of 18 U.S.C. § 3583(e) in effect at the time of his offense limited the

2

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prison term that could be imposed upon revocation to 36 months. Thomas is

mistaken under our prior jurisprudence. Calculation of a prison term is based

on each individual offense; there is no cap on the total sentence that is derived

from aggregating prison term sentences on multiple counts. See United States

v. Gonzalez, 250 F.3d 923, 927–28 (5th Cir. 2001). Thomas’s argument

concerning § 3583(h) is similarly unavailing because the cases he cites in support

of this argument addressed multiple revocations of a single term of supervised

release, rather than the revocation of multiple terms of supervised release, as is

the case here. See U.S. v. Zoran, 682 F.3d 1060, 1064 (8th Cir. 2012).

The remainder of Thomas’s challenges to his sentence are considered for

plain error only. Relief is unavailable under this standard unless he shows a

clear or obvious error that affected his substantial rights. See Puckett v. United

States, 556 U.S. 129, 135 (2009). This court has discretion to correct a plain

error but will do so only if it seriously affects the fairness, integrity, or public

reputation of the proceedings. See id.

To the extent that Thomas contends that his sentence was improperly

grounded in the need for just punishment and the seriousness of the offense, the

record rebuts this assertion and shows that the sentence imposed was grounded

in the district court’s consideration of the nature and circumstances of Thomas’s

offenses, his history, and the court’s belief that the public needed to be protected

from him. These are proper bases for a revocation sentence. See 18 U.S.C.

§§ 3553(a)(1) & (a)(2)(C); 18 U.S.C. § 3583(e); United States v. Miller, 634 F.3d

841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011). 

Thomas has not shown that the district court plainly erred by choosing to

impose several of his terms of imprisonment to run consecutively. See Gonzalez,

250 F.3d at 927–29. Insofar as Thomas argues that his sentence creates

unwarranted disparities, he cites no instances of similarly situated defendants

who received different sentences, and there is no reason to believe that the

district court ignored this factor. See id. at 930. Finally, Thomas has not shown

3

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plain error in connection with the district court’s classification of certain conduct

as a Grade B violation of his release. See 47 U.S.C. § 223; U.S.S.G. § 7B1.1(a)(2). 

The judgment of the district court is AFFIRMED. 

4

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