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United States Court of Appeals for the District of Columbia Circuit
November 19, 2020, Argued; June 11, 2021, Decided
[**357] [*726] Ginsburg, Senior Circuit Judge: Keniel Thomas, a resident of Jamaica, pleaded guilty to one count of interstate communication with intent to extort, in violation of 18 U.S.C. § 875(b), after botching a lottery scam.2 In the plea agreement, Thomas waived most of his rights to appeal. He retained only the rights to claim he received ineffective assistance of counsel and to appeal any upward departure from the sentencing guidelines range calculated by the district court. At sentencing, the district court did depart upward [***2] and sentenced Thomas to nearly six years' imprisonment.
Thomas mounts several challenges to his sentence. First, he argues the Government plainly breached the plea agreement at sentencing. We disagree. Second, he claims his waiver of rights to appeal is unenforceable and then raises four issues within the scope of the waiver. We assume without deciding the waiver was ineffective and reject these challenges on their merits. Third, Thomas argues the district court abused its discretion by departing upward from the guidelines range. We find no abuse of discretion. Finally, Thomas claims his attorney made mistakes at sentencing and during the plea bargaining process that deprived him of his right to the effective assistance of counsel under the Sixth Amendment to the Constitution of the United States. We remand some of Thomas's ineffective assistance claims to the district court for further fact-finding and deny the rest.
We first discuss the plea agreement and the stipulated facts. After that, we summarize additional evidence the Government presented with its sentencing memorandum and the proceedings at the sentencing hearing.
A. The plea agreement
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
999 F.3d 723 *; 452 U.S. App. D.C. 354 **; 2021 U.S. App. LEXIS 17440 ***
UNITED STATES OF AMERICA, APPELLEE v. KENIEL AEON THOMAS, ALSO KNOWN AS DAVID MORGAN, APPELLANT
Prior History: [***1] Appeal from the United States District Court for the District of Columbia. (No. 1:18-cr-00310-1).
sentencing, district court, plea agreement, enhancement, departure, guidelines, variance, upward, argues, right to appeal, ineffective, threats, waived, defense counsel, extortion, calculation, memorandum, ability to carry, depart, mischaracterization, recommended, vulnerable, downward, family member, guilty plea, plain error, pronouncement, demanded, sentencing guidelines, statutory maximum
Criminal Law & Procedure, Appeals, Standards of Review, Plain Error, Reviewability, Waiver, Exceptions & Validity of Waivers, Guilty Pleas, Allocution & Colloquy, Waiver of Defenses, Entry of Pleas, Allocution & Colloquy, Knowing & Intelligent Requirement, Voluntariness, Waiver, Harmless & Invited Error, Guilty Pleas, Plain Error, Jury Instructions, Sentencing, Ranges, Crimes Against Persons, Coercion & Harassment, Penalties, Kidnapping, Racketeering, Extortion, Sentencing Alternatives, Home Detention, Postconviction Proceedings, Imprisonment, Imposition of Sentence, Factors, Sentencing Guidelines, Departures From Guidelines, Upward Departures, Counsel, Effective Assistance of Counsel, Reviewability, Evidence, Burdens of Proof, Allocation, Tests for Ineffective Assistance of Counsel, Deportation & Removal, Downward Departures, Adjustments & Enhancements, Vulnerable Victims, Pleas