2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-16-2002

USA v. Thomas

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2139

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Thomas" (2002). 2002 Decisions. Paper 572.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/572
 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 NO. 01-2139 

 

 UNITED STATES OF AMERICA 

 v. 

 KEVIN THOMAS, a/k/a MICHAEL ALLEN THOMAS 

 Kevin Thomas, 

 Appellant 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 00-cr-00700) 

 District Judge: Hon. Jay C. Waldman 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 September 12, 2002 

 Before: SLOVITER and RENDELL, Circuit Judges, and 

 McCLURE,* District Judge 

 

 (Filed: September 13, 2002) 

 

 OPINION OF THE COURT 

__________________ 

* Hon. James F. McClure, Jr., United States District Court for the Middle District of 

 Pennsylvania, sitting by designation. SLOVITER, Circuit Judge. 

 Appellant Kevin Thomas, who pled guilty to possession of a firearm by a 

convicted felon, appeals from the sentence. He challenges the District Court’s refusal to 

appoint him new counsel, its levy of a fine at sentencing, and the failure to fully credit his 

time served in a state facility towards that of his federal sentence. We will affirm. 

 I. 

 The facts of this case are not in dispute. On May 1, 2000, after a high-speed 

pursuit, Philadelphia police apprehended Thomas and recovered a Glock 17 semiautomatic pistol that he had thrown from his vehicle during the chase. The firearm 

matched the shoulder holster Thomas was wearing when he was apprehended. He was 

indicted for violation of 18 U.S.C. 922(g)(1), knowing possession of a firearm, in and 

affecting commerce, by a convicted felon. The indictment listed four prior violent felony 

convictions, exposing Thomas to enhancement under the Armed Career Criminal Act, 18 

U.S.C. 924(e)(1). Appointed counsel, the Federal Defender Association, moved to 

withdraw as counsel. The District Court granted the motion and appointed Christopher 

Warren as Thomas’ defense counsel. Thomas pled guilty, pursuant to a written plea 

agreement, on January 29, 2001. 

 In April of 2001, Thomas wrote to the District Court, requesting new counsel on 

the ground that Warren was not preparing for the sentencing hearing in a manner 

satisfactory to him. The basis for his dissatisfaction was counsel’s failure to collaterally 
attack Thomas’ 1986 robbery conviction (one of the four prior convictions listed in the 

indictment) and to request a hearing under United States v. Garcia, 544 F.2d 681 (3d Cir. 

1976), challenging the evidentiary sufficiency of the proof of conviction as hearsay. 

Thomas also complained of Warren’s failure to subpoena certain documents relevant to 

that conviction pursuant to the collateral attack. Id. at 683-84. In response, the 

government attached a certified copy of Thomas’ robbery conviction to its Sentencing 

Memorandum to demonstrate that it was not hearsay and thus could not fall under Garcia. 

 At the sentencing hearing, the District Court denied Thomas’ request because it 

found no good cause for the appointment of new counsel. The District Court reasoned 

that counsel’s replacement was unwarranted since any competent attorney would have 

concluded, as did Warren, that Thomas had no right to either a Garcia hearing or a 

collateral attack on a state court conviction in the context of a federal sentencing hearing. 

 The District Court assigned Thomas a criminal history category of V as an armed 

career criminal under 18 U.S.C. 924(e)(1) with an offense level of 30 and sentenced 

him to 180 months incarceration (the guideline minimum), a fine of $1,500, a $100 

special assessment, and five years supervised release. The District Court also ordered that 

Thomas would be credited with federal time served and, if allowed by law, state time 

served as well. Thomas filed a timely notice of appeal on May 8, 2001. 

 II. 

 The District Court had subject matter jurisdiction under 18 U.S.C. 3231. This 

court has jurisdiction under 28 U.S.C. 1291. We review the District Court’s denial of 

new counsel under an abuse of discretion standard. United States v. Goldberg, 67 F.3d 

1092, 1097 (3d Cir. 1995). Thomas’ challenge to the District Court’s imposition of a fine 

is reviewed for plain error as it was not raised at the sentencing hearing. United States v. 

Torres, 209 F.3d 308, 313 (3d Cir. 2000). 

 III. 

 Thomas’ argument that he was entitled to appointment of new counsel at his 

sentencing hearing is premised, as it was at the hearing, on two contentions: (1) that his 

counsel failed in his duties by refusing to move for a Garcia hearing and (2) that his 

counsel was obliged, when requested, to collaterally challenge his 1986 robbery 

conviction at the sentencing hearing, but declined to do so. Both claims are predicated on 

Thomas’ contention that the 1986 robbery conviction, which was one of the convictions 

that led to his designation as an armed career criminal with the consequent sentencing 

enhancement, was not in fact for robbery but for receiving stolen property. 

 In Garcia, a pre-guidelines case, this court upheld the use of hearsay from presentence reports and noted that the trial court had given the defendant an opportunity to 

have an evidentiary hearing on challenged information. Thomas, however, was not 

sentenced on the basis of hearsay. The 1986 conviction (as well as his other three prior 

convictions) was proven to the District Court via certified copies of Thomas’ judgment 

and commitment orders. Certified copies of court documents are not hearsay, and 

therefore Garcia is inapplicable. 

 Similarly, Thomas’ claim based on his attorney’s failure to launch a collateral 

attack on the 1986 robbery conviction has no legal support. In Custis v. United States, 

511 U.S. 485, 496-97 (1994), the Supreme Court held that a defendant may not launch a 

collateral attack on a prior conviction used for enhancement under the Armed Career 

Criminal Act in the absence of a claim that the conviction was obtained in violation of the 

right to counsel. Thomas makes no such claim. Thomas’ reliance on United States v. 

Hernandez, 218 F.3d 272 (3d Cir. 2000), is equally misplaced as that case centered on the 

use of less-than-reliable documentation to establish the predicate felonies, whereas, as 

previously noted, in the instant appeal the predicate felony at issue was established via a 

certified copy of the order of commitment. 

 Moreover, as the District Court noted, the federal sentencing hearing is not an 

appropriate venue for the prosecution of such an attack. Thomas’ remedy is to seek to 

correct the record in the state court where the conviction was obtained. A district court 

need not grant a request for new counsel unless there is "good cause" to do so. Goldberg, 

67 F.3d at 1098, citing United States v. Welty, 674 F.2d 185 (3d Cir. 1982). We agree 

with the District Court that any competent attorney would conclude, as Warren did, that 

Thomas could not collaterally attack his 1986 robbery conviction in his federal sentencing 

proceeding, and therefore the District Court did not abuse its discretion by failing to 

replace Thomas’ attorney for refusing to argue the claims Thomas asserts. 
 Finally, we reject Thomas’ claim that the District Court clearly erred by assessing 

him a fine of $1,500. Under U.S.S.G. 5E1.2(a), a district court is required to impose a 

fine in all cases except those in which "the defendant establishes that he is unable to pay 

and is not likely to become able to pay any fine." In such cases, the defendant bears the 

burden of proving he is unable to pay the fine. Torres, 209 F.3d at 312. The District 

Court conducted such an inquiry into Thomas’ ability to pay and concluded that, given 

Thomas’ court-ordered participation in the Inmate Financial Responsibility Program for 

the duration of his 180 month sentence (minimum income $300 per annum) and the 

anticipated minimum wage employment he would be engaged in during his period of 

supervised release (estimated $2,000 per annum discretionary income), he would be more 

than capable of paying the $1,500 fine. We see no error in the District Court’s imposition 

of the $1,500 fine. 

 IV. 

 For the foregoing reasons, we will affirm the judgment of the District Court. 

__________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Dolores K. Sloviter 

 Circuit Judge