United States v. Keniel Thomas
999 F.3d 723
| D.C. Cir. | 2021Background
- Defendant Keniel Thomas (aka David Morgan), a Jamaican national, pleaded guilty to one count of interstate communication with intent to extort (18 U.S.C. § 875(b)) after a lottery/sweepstakes scam targeting an elderly former judge and others that culminated in death threats to the judge’s wife.
- Plea agreement: parties stipulated offense-level 20 (resulting estimate 33–41 months), Government agreed not to bring additional charges, and Thomas waived most appellate rights except claims of ineffective assistance and appeals "to the extent" of an upward sentencing departure.
- Government sentencing submission and FBI testimony expanded the record: multiple victims and associates, money-mule scheme, and over $300,000 traceable losses; Thomas did not dispute those exhibits at sentencing.
- The district court applied an additional 3-level enhancement for demonstrated ability to carry out threats (U.S.S.G. § 2B3.2(b)(3)(B)(ii)) and imposed two upward departures under Application Note 8 (organized criminal activity and threat to a family member), producing a 71‑month sentence.
- On appeal Thomas argued (1) the Government breached the plea agreement at sentencing, (2) his appellate‑waiver was unenforceable based on the Rule 11 colloquy, (3) several guideline enhancements and departures were improper, and (4) counsel was ineffective at plea and sentencing; the court affirmed most rulings but remanded some ineffective‑assistance claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Government breach of plea agreement by seeking demonstrated‑ability enhancement | Thomas: prosecutor’s colloquy concessions show breach of promise not to seek a different offense‑level calculation | Gov: it did not seek the enhancement and never promised to convince the court the stipulated range was correct | No breach; Government did not seek enhancement and did not misperform plea agreement. |
| Validity/scope of appellate‑waiver given Rule 11 colloquy | Thomas: judge’s paraphrase ("unless") broadened waiver so any appellate claim is preserved after an upward departure | Gov: written agreement controls; colloquy did not fundamentally alter waiver | Close call on mischaracterization, but court avoided deciding waiver’s enforceability and rejected Thomas’s claims on their merits. |
| Application of demonstrated‑ability enhancement (U.S.S.G. § 2B3.2(b)(3)(B)(ii)) | Thomas: being in Jamaica meant he lacked ability to carry out threats; enhancement thus improper | Gov: demonstrated ability can be shown by details revealing surveillance/knowledge regardless of physical presence | Enhancement upheld; facts (names, address, surveillance detail) match Application Note 6 and controlling precedent. |
| Upward departures under Application Note 8 (organized criminal activity; threat to family member) | Thomas: departures were improper or treated as mandatory; organized‑crime departure overbroad | Gov: departure permissible; scheme involved multiple associates and explicit threats to family member | Departures upheld: court correctly treated them as discretionary and supported both bases. |
| Smith departure/variance (deportable alien ineligible for some BOP programs) | Thomas: counsel failed to press for a Smith variance or object to district court’s reasoning denying it | Gov: counsel bound by plea not to seek departures but could seek variances; record unclear | Court held counsel’s failure was professionally deficient and remanded ineffective‑assistance claim for fact‑finding and prejudice inquiry. |
| Ineffective assistance for stipulating guideline enhancements and failing to press other arguments | Thomas: counsel failed to challenge stipulated enhancements and other sentencing issues | Gov: many stipulations were intentional tactical waivers; evidence made reversal unlikely | Most claims denied on the merits or for lack of prejudice; some claims (failure to present mitigating facts, review exhibits with defendant, submit character letters) remanded. |
Key Cases Cited
- Puckett v. United States, 556 U.S. 129 (2009) (plain‑error review and standards for relief)
- United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009) (appeal‑waiver enforceability when knowing and voluntary)
- United States v. Brown, 892 F.3d 385 (D.C. Cir. 2018) (district court mischaracterization of waiver can render waiver unenforceable)
- United States v. Godoy, 706 F.3d 493 (D.C. Cir. 2013) (oral pronouncement controlling if it fundamentally mischaracterizes written waiver)
- Freeman v. United States, 564 U.S. 522 (2011) (district court has independent obligation to calculate Guidelines)
- United States v. Hacha, 727 F.3d 815 (7th Cir. 2013) (upholding demonstrated‑ability enhancement where defendant showed specific knowledge of victims)
- United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994) (downward departure may be appropriate for deportable aliens who suffer increased sentence severity)
- United States v. Olano, 507 U.S. 725 (1993) (distinguishing waiver from forfeiture in appellate review)