United States v. Daquante Thomas

USCA4 Appeal: 23-4022 Doc: 27 Filed: 05/23/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4022

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAQUANTE THOMAS, a/k/a Glock,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Julie R. Rubin, District Judge. (1:21-cr-00494-JRR-1)

Submitted: April 30, 2024 Decided: May 23, 2024

Before WILKINSON and NIEMEYER, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part, dismissed in part by unpublished per curiam opinion.

ON BRIEF: Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore, Maryland, for Appellant. Kim Y. Hagan, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. *2 USCA4 Appeal: 23-4022 Doc: 27 Filed: 05/23/2024 Pg: 2 of 5

PER CURIAM:

Daquante Thomas appeals his conviction and 420-month sentence imposed

following his guilty plea to murder through the use of a firearm during a crime of violence,

in violation of 18 U.S.C. §§ 2, 924(c)(1)(A), (j). Thomas’ counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues

for appeal but questioning the sufficiency of the factual basis supporting Thomas’ plea, the

reasonableness of the sentence, the adequacy of the district court’s announcement of the

discretionary conditions of supervised release, and whether trial counsel rendered

ineffective assistance. Thomas has filed a pro se supplemental brief, in which he argues

that he only pled guilty due to trial counsel’s ineffective assistance. The Government

moves to dismiss the appeal pursuant to the appeal waiver in Thomas’ plea agreement. We

grant the motion to dismiss in part and affirm in part.

Thomas’ appeal waiver does not bar consideration of his challenges to the factual

basis or trial counsel’s assistance, as both these challenges implicate the validity of the

underlying guilty plea. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018)

(holding that appeal waivers do not preclude review of sufficiency of factual basis); United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (“Even if the court engages in a

complete plea colloquy, a waiver of the right to appeal may not be knowing and voluntary

if tainted by the advice of constitutionally ineffective trial counsel.”). Because Thomas did

not move in the district court to withdraw his guilty plea, we review the court’s acceptance

of his plea for plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016); *3 USCA4 Appeal: 23-4022 Doc: 27 Filed: 05/23/2024 Pg: 3 of 5

see United States v. Harris, 890 F.3d 480, 491 (4th Cir. 2018) (discussing plain error

standard).

Initially, while Thomas suggests that his trial counsel’s ineffective assistance

rendered his plea involuntary, there is no demonstrated evidence of ineffective assistance

of counsel. Accordingly, we decline to address this claim on direct appeal. See United

States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016) (noting that we do not consider

ineffective assistance of counsel claims on direct appeal “[u]nless an attorney’s

ineffectiveness conclusively appears on the face of the record”). This claim should be

raised, if at all, in a 28 U.S.C. § 2255 motion. See United States v. Jordan, 952 F.3d 160,

163 n.1 (4th Cir. 2020).

Furthermore, the present record reflects that Thomas entered his guilty plea

knowingly and voluntarily. And, based on Thomas’ sworn assertions at the Fed. R. Crim.

P. 11 colloquy and the stipulation of facts attached to the plea agreement, we are satisfied

that a factual basis supported his plea. See United States v. Stitz, 877 F.3d 533, 536

(4th Cir. 2017) (discussing proof required to establish factual basis). We therefore

conclude that Thomas’ guilty plea is valid. See United States v. Fisher, 711 F.3d 460, 464

(4th Cir. 2013) (discussing when guilty plea is valid).

Turning to Thomas’ appeal waiver, “[w]e review an appellate waiver de novo to

determine whether the waiver is enforceable” and “will enforce the waiver if it is valid and

if the issue being appealed falls within the scope of the waiver.” United States v. Boutcher,

998 F.3d 603, 608 (4th Cir. 2021) (internal quotation marks omitted). An appeal waiver is

valid if the defendant enters it “knowingly and intelligently, a determination that we make *4 USCA4 Appeal: 23-4022 Doc: 27 Filed: 05/23/2024 Pg: 4 of 5

by considering the totality of the circumstances.” Id. Typically, “if a district court

questions a defendant regarding the waiver of appellate rights during the Rule 11 colloquy

and the record indicates that the defendant understood the full significance of the waiver,

the waiver is valid.” McCoy, 895 F.3d at 362 (internal quotation marks omitted); see

Boutcher, 998 F.3d at 608.

Our review of the record confirms that Thomas knowingly, voluntarily, and

intelligently waived his right to appeal his sentence and that the appeal waiver in the plea

agreement is valid and enforceable. And Thomas’ question regarding the reasonableness

of the sentence falls squarely within the scope of the valid waiver, which precludes all

appeals except those claiming the imposition of a sentence in excess of the statutory

maximum. Accordingly, the waiver bars review of that issue.

Thomas’ remaining question regarding the district court’s imposition of the

discretionary supervised release conditions falls outside the scope of the waiver. United

States v. Singletary, 984 F.3d 341, 344-45 (4th Cir. 2021). A district court must orally

pronounce all nonmandatory conditions of supervised release at the sentencing hearing,

either expressly or “through incorporation—by incorporating, for instance, all [Sentencing]

Guidelines ‘standard’ conditions.” United States v. Rogers, 961 F.3d 291, 299

(4th Cir. 2020). Discretionary conditions that first appear in the court’s subsequent written

judgment are “nullities”; in other words, “the defendant has not been sentenced to those

conditions.” Singletary, 984 F.3d at 344. We review “the consistency of the defendant’s

oral sentence and written judgment de novo.” United States v. Cisson, 33 F.4th 185, 193

(4th Cir. 2022) (cleaned up). *5 USCA4 Appeal: 23-4022 Doc: 27 Filed: 05/23/2024 Pg: 5 of 5

Here, the district court adequately incorporated the standard conditions of

supervised release by referencing the court’s standing order. The court also orally

announced several additional conditions of supervised release, and the additional

conditions that appear in the written judgment are consistent with the court’s oral

pronouncement. Accordingly, we conclude that the court properly imposed the

discretionary conditions of supervised release.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal outside the scope of Thomas’ valid appeal waiver.

We therefore grant in part the Government’s motion to dismiss and dismiss the appeal as

to all issues within the waiver’s scope. We affirm the remainder of the criminal judgment.

This court requires that counsel inform Thomas, in writing, of the right to petition the

Supreme Court of the United States for further review. If Thomas requests that a petition

be filed, but counsel believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel’s motion must state

that a copy thereof was served on Thomas. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED IN PART, DISMISSED IN PART