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 panel has determined 

unanimously that oral argument would not materially 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). The district court departed 

and/or varied upward substantially from the advisory range set out in the United 

States Sentencing Guidelines. Thomas’s counsel filed a timely notice of appeal. 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent 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: 1
2 

Thereafter, however, counsel filed in this court a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), asserting they could find no meritorious basis 

for appeal and moving to withdraw as counsel. For those reasons set out below, 

this court grants counsel’s motion to withdraw and dismisses this appeal. 

 On May 11, 2020, local Oklahoma police officers were dispatched to a 

convenience store based on a report of a vehicle hitting a gas pump and fleeing 

the scene. An officer initiated a traffic stop near the store and made contact with 

Thomas, the driver of the vehicle. When Thomas exited the vehicle, a firearm 

fell from his lap onto the ground. Officers detained Thomas and confiscated a 

loaded .380 Bersa Thunder. An officer cleared the weapon of one chambered 

round of ammunition and a six-round magazine. Officers located a second sevenround magazine in the vehicle’s driver’s seat. Thomas, who appeared lethargic, 

was “drooling” from the mouth, drifting in and out of consciousness, and unable 

to answer any of the officers’ 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. She stated she and Thomas had 

taken Percocet prior to arriving at the convenience store. 

 On August 9, 2020, officers were dispatched to a residence based on a 

reported disturbance involving a firearm and shots fired. It was noted that people 

were screaming for help. As officers approached 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: 2
3 

As officers exited their patrol cars, one of the subjects who had been fighting, 

P.Y., yelled that Thomas had a firearm. Officers retreated until additional units 

arrived, including air support and a K-9 unit, noting there were several other 

subjects outside of the property 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, his 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 arrived 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. Officers searched the area and 

located two spent .380 shell casings in the roadway. R.D. and Thomas consented 

to a search of the premises. Officers located a black .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 confirmed 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 him, Thomas admitted he possessed the 

firearm during the altercation and that it had “went off.” He stated he was 

defending himself with the firearm because P.Y. attacked him and he did not 

understand why he would be in trouble. 

Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 3
4 

 After a federal grand jury returned a superseding 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) count, and recommend that 

Thomas’s total offense level be adjusted downward based on acceptance of 

responsibility. And, most importantly, the state of Oklahoma agreed that any 

sentence it obtained in parallel state-court criminal 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 plead guilty. Accordingly, the 

district court accepted Thomas’s plea and found him guilty of the relevant 

§ 922(g)(1) charges. Thomas’s criminal history category VI, when combined 

with his total offense level of 23, resulted in an advisory sentencing range of 92 

to 115 months’ imprisonment. The PSR further noted, however, that an upward 

variance or departure would be appropriate to account for Thomas’s 

extraordinarily extensive and violent criminal history and his use of a firearm in 

the commission of one of the § 922(g)(1) convictions. Thomas filed objections to 

portions of the PSR noting the possibility of an upward departure and/or variance. 

Thomas also addressed the propriety of an upward variance or departure in his 

sentencing memorandum. 

Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 4
5 

 The district court held a sentencing hearing on March 2, 2022. After 

listening to extensive arguments from Thomas’s counsel, the district court 

concluded a sentence of 180 months’ imprisonment was appropriate, whether 

imposed as an upward variance or upward departure. The district court focused 

on the following in reaching that conclusion: (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 underlying crimes while on pretrial supervision for the 

second underlying crime. The district court concluded that none of Thomas’s 

personal characteristics, particularly his long-term drug use, mitigated his 

culpability or his future dangerousness to society. Finally, in its statement of 

reasons attached to the judgment, the district court justified the upward departure 

by reference to the inadequacy of the advisory sentence range in accounting for 

Thomas’s extensive criminal history, U.S.S.G. § 4A1.3, and his discharge of a 

firearm during an underlying offense, id. § 5K2.6. The district court’s statement 

of reasons likewise noted the 180-month sentence was justified as an upward 

variance to account for the extreme nature of the offense involving the discharge 

of a firearm, the extensive nature of Thomas’s criminal history, and the need to 

protect the public from further 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: 5
6 

 This appeal is before the court on Thomas’s counsel’s Anders brief. 

Pursuant to Anders, counsel may “request permission to withdraw where counsel 

conscientiously examines a case and determines that any appeal would be wholly 

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). 

Counsel is required to submit 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 response to counsel’s Anders brief. The 

government declined to file a brief. Thus, our resolution of the case is based on 

counsel’s Anders brief and this court’s independent review of the record. That 

independent review demonstrates any potential 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-frivolous basis to challenge either the validity of 

Thomas’s convictions or sentence. As counsel correctly recognizes at the outset, 

the arguments Thomas may raise are significantly narrowed by the appellate 

waiver in his plea agreement. Thomas specifically waived the right to appeal his 

guilty plea “and any other aspect of [his] conviction, including but not limited to 

any rulings on pretrial suppression motions or any other pretrial dispositions of 

motions and issues.” Regarding his sentence, the waiver bars arguments based on 

Appellate Case: 22-6041 Document: 010110776198 Date Filed: 12/01/2022 Page: 6
7 

“the manner in which the sentence is determined” allowing only an appeal 

challenging the substantive reasonableness of any sentence imposed in excess of 

the top of the advisory Guidelines range. For that reason, many of the issues 

identified by counsel on appeal would be barred by the waiver even if they were 

not frivolous. 

 According to counsel, Thomas 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 reasonableness 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 agreement itself specifically note that the district court 

had discretion to sentence him to the statutory maximum sentence on each count 

of conviction and to run the sentences consecutively. 

 Counsel notes that it might be possible to argue Thomas was not provided 

adequate notice of the possibility of an upward departure. See Fed. R. Crim. P. 

32(h). Counsel correctly concedes such an argument would be frivolous for two 

independent and equally dispositive reasons. First, the district court imposed its 

sentence after concluding it was justified as either an upward departure or upward 

variance. The notice requirement 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: 7
8 

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 departures at sentencing. 

Such notice satisfies the requirements of Rule 32(h). See Fed. R. Crim. P. 32(h) 

(“Before the court may depart from the applicable sentencing range on a ground 

not identified for departure either in the presentence report or in a party’s 

prehearing submission, the court must give the parties reasonable notice that it is 

contemplating such a departure.” (emphasis added)). 

 Finally, counsel indicates a conscientious review of the record also 

demonstrates any challenge to the substantive reasonableness of Thomas’s 180-

month sentence would be frivolous. This court strongly agrees. A defendant 

arguing substantive unreasonableness faces the difficult task 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 sentencing decision was not “within the range 

of possible outcomes that the circumstances fairly support.” United States v. 

Lente, 759 F.3d 1149, 1174 (10th Cir. 2014) (quotation omitted). Under this 

standard, we “uphold even substantial variances when the district court properly 

weighs the § 3553(a) factors and offers valid reasons for the chosen 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: 8
9 

 A review of the record leaves no doubt the district court’s sentence, 

although reflecting a substantial upward variance, is reasonable. Importantly, 

both felon-in-possession convictions involved aggravating factors. As to the 

first, those factors included the conduct surrounding Thomas’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 the second felon-inpossession conviction, Thomas discharged the firearm during a violent physical 

altercation involving his domestic partner and the domestic partner’s son. 

Regarding Thomas’s history and characteristics, the district court emphasized 

several times the extensive and violent nature of Thomas’s criminal history. 

Indeed, the district court stated it had never seen such an extensive criminal 

history. Although Thomas’s counsel argued Thomas’s criminal 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 adolescent life that you’ve chosen crime 

and violence. And I’m particularly concerned about the behavior. It 

does seem to have escalated very recently. These incidents for 

which you were arrested here could 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 troubling 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: 9
10 

Considering all the circumstances, there can be no doubt the district court 

reasonably concluded a 180-month’s sentence was necessary to protect the public 

and reflect the seriousness of Thomas’s crimes of conviction and criminal history. 

Pursuant to the Anders mandate, this court has undertaken an independent 

review of the entire record in this case. Our review demonstrates that the 

potential issues raised in counsel’s Anders brief are undeniably frivolous. 

Likewise, this court’s review 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