UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARIO LAIVEL THOMAS, Defendant - Appellant. No. 22-6041 (D.C. No. 5:20-CR -00212-PRW-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , MURPHY , and EID , Circuit Judges.

________________ _________________ After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Mario Laivel Thomas pleaded guilty to two counts of being a felon illegally in possession of a firearm. See 18 U.S.C. § 922(g)(1). Th e district court departed and/or varied upward substa ntially from the advisory ra nge set out in the United States Sentencing Guidelines . Thomas’s counsel filed a timely notice of appeal.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 1, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 12 Thereafter, however, counsel filed in this court a br ief pursuant to Anders v. California , 386 U.S. 738 (1967), asserting they could find no me ritorious basis for appeal and moving to wit hdraw as counsel. For t hose reasons set out below, this court grants counsel’s motion to withdraw and dismisses this appeal. On May 11, 2020, local Oklahoma polic e officers were dispatched to a convenience store based on a report of a vehicle hitti ng a gas pump and fleeing the scene. An officer init iated a traffic stop near the store and made contact with Thomas, the driver of the vehicle. When Thomas ex ited the vehicle, a firearm fell from his lap onto the ground. Office rs detained Thomas and confiscated a loaded .380 Bersa Thunder. An officer cleared the weapon of one chambered round of ammunition and a si x-round magazine. Officers located a second sevenround magazine in the vehicl e’s driver’s seat. Thomas , who appeared lethargic, was “drooling” from the mout h, drifting in and out of consciousness, and unable to answer any of the office rs’ questions. Thomas was transported to the hospital for further observation. A juvenile passenger, who also appeared to be under the influence of drugs, was also inside of the vehicle. Sh e stated she and Thomas had taken Percocet prior to arrivi ng at the convenience store. On August 9, 2020, officers were di spatched to a residence based on a reported disturbance i nvolving a firearm and s hots fired. It wa s noted that people were screaming for help. As officers a pproached the scene, they observed two male subjects and a female subject fighting in the roadway. When Thomas, one of the male subjects, noticed the officers, he fled the scene towards a residence. Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 23 As officers exited their patrol cars, one of the s ubjects who had been fighting, P.Y., yelled that Thomas ha d a firearm. Officers retr eated until additional units arrived, including air suppor t and a K-9 unit, noting th ere were several other subjects outside of the propert y as well as a pit bull. P.Y. told the officers the residence was occupied by his mother, R.D. P.Y. had come to visit R.D. and, as he approached the driveway, Thomas, hi s mother’s domestic partner, started a physical confrontation with him. P.Y. stated he fought back and the fight continued into the roadway. According to P.Y., Thomas fired at least two rounds toward him. Additional officers arrive d on the scene and searched the immediate area of R.D.’s residence. After numerous verbal commands , Thomas exited a travel trailer in R.D.’s backyard and surrendered. Office rs searched the area and located two spent .380 shell casings in the roadway. R.D. and Thomas consented to a search of the premis es. Officers located a bl ack .380 caliber Smith and Wesson M & P handgun that was loaded with four rounds of .380 ammunition. A check of the firearm’s serial number c onfirmed it had been reported stolen. Thomas was Mirandized and agreed to speak with one of the officers. After initially denying that the gun belonged to hi m, Thomas admitted he possessed the firearm during the altercati on and that it had “went o ff.” He stated he was defending himself with the firearm because P.Y. att acked him and he did not understand why he woul d be in trouble. Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 34 After a federal grand ju ry returned a supersed ing indictment charging Thomas with, inter alia, two § 922(g)(1 ) counts based on the events recounted above, Thomas entered a plea agreement that disposed of the case. In exchange for pleading guilty to the two § 922(g)(1) counts and waiving the overwhelming majority of his appellate rights, the government agreed to dismiss the original indictment, dismiss an additional § 922(g)(1) c ount, and recommend that Thomas’s total offense level be adju sted downward based on acceptance of responsibility. And, most importantly, the state of Oklahoma agreed that any sentence it obtained in parallel state-court crim inal proceedings involving Thomas would run concurrently with any sentence imposed in this case. The district court conducted a change of plea hearing and concluded Thomas had knowingly, voluntarily, and intelligently agreed to pl ead guilty. Ac cordingly, the district court accepted T homas’s plea and found him guilty of the relevant § 922(g)(1) charges. Thom as’s criminal history ca tegory VI, when combined with his total offense level of 23, resulted in an advi sory sentencing range of 92 to 115 months’ imprisonment. The PSR further noted, however , that an upward variance or departure would be a ppropriate to acco unt for Thomas’s extraordinarily extensive and violent criminal history a nd his use of a firearm in the commission of one of the § 922(g)(1) c onvictions. Thomas filed objections to portions of the PSR noting the possibility of an upward de parture and/or variance. Thomas also addressed the propriety of an upward vari ance or departure in his sentencing memorandum. Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 45 The district court held a senten cing hearing on March 2, 2022. After listening to extensive arguments from Thomas’s counsel, th e district court concluded a sentence of 180 months’ imprisonment was appropriate, whether imposed as an upward variance or upward departure. The dist rict court focused on the following in reaching that conclusi on: (1) Thomas’s extensive and violent criminal history, a history the district court found was the most extensive it had seen; (2) the fact much of the violence was directed at women and Thomas’s domestic partners; and (3) Thomas’s discharge of a stolen gun during the commission of one of the unde rlying crimes while on pret rial supervision for the second underlying crime. The district co urt concluded that none of Thomas’s personal characteristics, particularly his long-term drug use, mitigated his culpability or his future da ngerousness to society. Fi nally, in its statement of reasons attached to the judgm ent, the district court ju stified the upward departure by reference to the inadequ acy of the advisory senten ce range in accounting for Thomas’s extensive criminal history, U. S.S.G. § 4A1.3, and his discharge of a firearm during an un derlying offense, id. § 5K2.6. The distri ct court’s statement of reasons likewise noted the 180-month sentence was justified as an upward variance to account for th e extreme nature of the of fense involving the discharge of a firearm, the extensive nature of Thomas’s criminal history, and the need to protect the public from furt her crimes by Thomas. See 18 U.S.C. § 3553(a)(1), (a)(2)(C). Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 56 This appeal is before th e court on Thomas ’s counsel’s Anders brief. Pursuant to Anders , counsel may “request permission to with draw where counsel conscientiously examines a case and determ ines that any appeal would be wholly frivolous.” United States v. Calderon , 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to s ubmit an appellate brief “indicating any potential appealable issues.” Id. Once notified of counsel’s brief, the defendant may then submit additional arguments to this court. Id. We “must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous.” Id. Despite being notified of his entitlement to do so on multiple occasions, Thomas did not file a brief in respons e to counsel’s Anders brief. The government declined to file a brief. Thus, our resoluti on of the case is based on counsel’s Anders brief and this court’ s independent review of the record. That independent review demonstrates any pot ential issue that would be raised on appeal is wholly frivolous. Counsel asserts they have conscientiously reviewed the record in this case and cannot assert a non-frivol ous basis to challenge either the validity of Thomas’s convictions or sent ence. As counsel correctly recognizes at the outset, the arguments Thomas may raise are si gnificantly narrowed by the appellate waiver in his plea agreement. Thomas sp ecifically waived the right to appeal his guilty plea “and any other as pect of [his] conviction, including but not limited to any rulings on pretrial suppr ession motions or a ny other pretrial dispositions of motions and issues.” Regard ing his sentence, the waiver bars arguments based on Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 67 “the manner in which the sentence is determined” allowing only an appeal challenging the substantive reasonableness of a ny sentence imposed in excess of the top of the advisory Gu idelines range. For that reason, many of the issues identified by counsel on appeal would be barred by the wa iver even if they were not frivolous. According to counsel, T homas contends he did not know it was possible for the district court to impose consecutive sentences. Even if viewed as a challenge to the substantive reasonabl eness of his sentence, and thus outside the limitations of the appellate waiver, this argument is frivolous. Thomas’s petition to enter a guilty plea and the plea agr eement itself specifi cally note that the district court had discretion to sentence him to the statutory maximu m sentence on each count of conviction and to run th e sentences consecutively. Counsel notes that it might be possi ble to argue Thomas was not provided adequate notice of the possibility of an upward departure. See Fed. R. Crim. P. 32(h). Counsel correctly c oncedes such an argument w ould be frivolous for two independent and e qually dispositive reasons . First, the distri ct court imposed its sentence after concluding it was justified as either an upward departure or upward variance. The notice requi rement set out in Rule 32(h) does not apply to variances. Irizarry v. United States , 553 U.S. 708, 716 (2008); United States v. Lymon , 905 F.3d 1149, 1155 n. 4 (10th Cir. 2018). Thus, any error in failing to provide notice with regard to the departure would be clearly harmless. United States v. Perez , 806 F. App’x 725, 728– 29 (11th Cir. 2020); United States v. Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 78 Nelson , 793 F.3d 202, 206–07 (1st Cir. 2015); United States v. Peninger , 456 F. App’x 214, 219 (4th Cir. 2011 ). In any event, the PSR specifically provided Thomas notice that he faced the possibility of upward de partures at sentencing. Such notice satisfie s the requirements of Rule 32(h). See Fed. R. Crim. P. 32(h) (“Before the court may depart from the applic able sentencing range on a ground not identified for departure ei ther in the presentence report or in a party’s prehearing submission, the c ourt must give the parties re asonable notice that it is contemplating such a depart ure.” (emphasis added)). Finally, counsel indicates a consci entious review of the record also demonstrates any challenge to the substantive reas onableness of Thomas’s 180- month sentence would be fr ivolous. This court stro ngly agrees. A defendant arguing substantive unreasonablen ess faces the difficult ta sk of demonstrating the district court’s sentencing decision “was an abuse of discretion because it was arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Dunbar , 718 F.3d 1268, 1282 (10th Cir. 2013). That is, Thomas must convince this court that the district court’s sent encing decision was not “within the range of possible outcomes th at the circumstances fairly support.” United States v. Lente , 759 F.3d 1149, 1174 (10th Cir. 2014) ( quotation omitted). Under this standard, we “uphold even s ubstantial variances when th e district court properly weighs the § 3553(a) factors and offers va lid reasons for the c hosen sentence.” United States v. Gross , 44 F.4th 1298, 1304 (10th Cir. 2022). Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 89 A review of the record leaves no doubt the district court’s sentence, although reflecting a substantial upward va riance, is reasonabl e. Importantly, both felon-in-possession convi ctions involved aggravati ng factors. As to the first, those factors incl uded the conduct surrounding T homas’s possession of the weapon when he drove into a gas pump while substantially impaired on drugs with a similarly impaired juvenile in the car. As to th e second felon-inpossession conviction, Thom as discharged the firear m during a violent physical altercation involving his domestic partne r and the domestic partner’s son. Regarding Thomas’s history and characteristics, the district court emphasized several times the extensive and violent nature of Thom as’s criminal history. Indeed, the district court stated it had never seen such an exte nsive criminal history. Although Thomas’s counsel argued Thomas’s cr iminal behavior could be explained by his drug addiction, the district court reasonably chose not to give those arguments much weight: But not every drug user chooses to engage in the type of criminal violent behavior that you have. So I do think that we have a much deeper and broader problem than the drug addiction. Your history reflects from virtually your entire non-adolescent life and including part of your adolescen t life that you’ve chosen crime and violence. And I’m pa rticularly concerned a bout the behavior. It does seem to have escalated very recently. These incidents for which you were arrested here coul d have been so much worse. And even when I look throughout the history, I see so many domestic incidents that involve violence towards women and partners that you have that I find extremely troub ling and represent a pattern of criminality that just hasn’t been interrupted for your entire life. Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 910 Considering all the circum stances, there can be no doubt the district court reasonably concl uded a 180-month’s sentence was n ecessary to protect the public and reflect the seriousness of Thomas’s crimes of convic tion and criminal history. Pursuant to the Anders mandate, this c ourt has undertaken an independent review of the entire record in this case. Our review demonstrates that the potential issues ra ised in counsel’s Anders brief are undeniably frivolous. Likewise, this court’s revi ew of the entire record reveals no other potentially meritorious issues. Accordingly, we GRANT counsel’s motion to withdraw and DISMISS this appeal.

Entered for the Court
Michael R. Murphy Circuit Judge Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 10