# Petition for Writ of Certiorari — Thomas v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1102

## Text

6421575 | Se Oa TE]

DER tL. STEVAS.
TEERK

ELSIE

IN THE

Supreme Court of the United States

OcToBerR TERM, 1984

UNITED STATES OF AMERICA,

Respondent,

¥.
JOSEPH VINCENT THOMAS,

Petitioner,

' PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

B. ALAN SEIDLER
Attorney for Petitioner
118 Main Street

Tappan, New York 10983
(914) 359-3770

QUESTIONS PRESENTED

Was petitioner's prison sentence
cruel and unusual punishment in violation
of the Eighth Amendment of the United
States Constitution, and alternately,
an abuse of discretion by the Trial

Court?

ii

TABLE OF CONTENTS

Page

Questions Presented ......ee¢. i
Table of Authorities ...... eee iii
Opinions Below ..... eecccccece 1
VUPLEGLCTAION ceccoccnccceccece 2
Relevant Constitutional
& Statutory Provisions ....... 2
Statement of the Case ........ 4
Reasons for Granting the
WEEE pee apecesecccccvevccrseces 8
Appendix A

Opinion of the United

States Court of Appeals

for the Third Circuit ... Al
Appendix B

Judgment of the United

States Court of Appeals.. AQ

Appendix C

Judgment of the United

States District Court ... Al2

iii

TABLE OF AUTHORITIES

Page
Cases
Carbo v. United States,
BOP Uses SA CASS1) ccs wcia ae 10
Downey v. Perini, 518 F.
2d 1288, vacated on other
grounds, 423 U.S. 933 (1975).. 9
Leach v. United States,
334 F. 2d 945 (CADC, 1964) ... 15
United States v. Brown,
382 F. 2d 52 (CA3rd, 1967) ,.. 13
United States v. Charles,
460 F. 2d 1093 (CA6th, 1972)... 14
United States v. Daniels,
ae'scigat 8 WR Fede LS | Se: 13
United States v. Fessler,
453 F. 2d 953 (CA3rd, 1972) .. 13

United States v. Holder,

ee

iv

412 F. 2d 212 (Ca2d, 1969) 11

United States v. Moore,

427 F. 2d 38 (CASth, 1970),
cert. denied, 400 U.S. 965 oe ll

United States v. Wiley,

278 F. 2d 500 (CA7th, 1960) | 15

Weems v. United States,

217 U.S. 349 (1910) ; 9

Woosley v. United States,

478 F. 2d 139

(CA8th, 1973) +

Constitution & Statutes

Title 18 U.S.C.A. $2, 5
Title 21 U.S.C.A §841(a)(1) 5
Title 21 U.S.C.A. S846 5
Title 21 U.S.C.A. S848 2,5,9
Title 28 U.S.C.A. §1254 y)

United States Constitution,
Eighth Amendment 4.9.10
re fete ee # &# @ @& @ @ 5 5

Virginia Criminal Code,

§18.2 = 256 6

Page

Other Authority

~
‘
*_eeeefeer°.# #*

Law Review,

SUPREME COURT OF THE
UNITED STATES OF AMERICA

scecececousescesessesesoesoesoes x
UNITED STATES OF AMERICA,
Respondent,
Vv.
JOSEPH VINCENT THOMAS,
Petitioner,
seveceeeoosseessseseneseeseseose x

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

OPINION BELOW

The instant Memorandum Opinion
of the United States Court of Appeals
for the Third Circuit is annexed hereto
as Appendix A; the Judgment and Commit-
ment Order of the United States District

Court is annexed hereto as Appendix

JURISDICTION

This matter is On Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit. The Judgment
of that Court was entered February
12, 1985.

The statutory provision conferring
upon this Court jurisdiction to review
the judgment of the Court of Appeals
by Writ of Certiorari is 28 U.S.C.A.

§ 1254.

CONSTITUTIONALE STATUTORY PROVISIONS

Title 21 U.S.C.A. § 848 provides:
Penalties; forfeiture
"(a)(1) Any person who engages

in a continuing criminal enterprise

shall be sentenced to a term of

imprisonmnet which may not be less
than ten years and which may be up
to life imprisonment, to a fine of
not more than $100,000., and to the
forefeiture proscribed in paragraph
(2); except that if any person engages
in such activity after one or more
prior convictions of him under this
section have become final, he _ shall
be sentenced to a term of imprisonment
which may not be less than 20 years,
and which may be up to life
imprisonment, to a fine of not more
than $200,000. and to the forfeiture
prescribed in paragraph (2).
Continuing criminal enterprise defined
(b) For purpose of subsection
(a) of this section, a person is engaged
in a continuing criminal enterprise
aS Gas he violates any provision

of this subchapter or subchapter II

of this chapter the punishment for

which is a felony, and

(2) such violation is -part of
a continuing series of violation of
this subchapter or subchapter II of
this chapter-

(A) which are undertaken by such
person in concert with five or more
other persons with respect to whom
such person occupies a position of
organizer, a. supervisory position,
or any other position of management;
and

(B) from which such person obtains

substantial income or resources.

STATEMENT OF THE CASE

77e@ 06 anetant matter is On Writ
of Certiorari to the United State
Court of Appeals for the Third Circuit
which affirmed on February 12, 1985,

the judgment of conviction entered

tachi iaaalaam

July 16, 1984, in the United States
Dbaetract Court for the Disetfict of
New Jersey [Hon. John WwW. Bissell,
U.S.D.J.] (Appdx.).

Petitioner was charged in a six
(6) count indictment [Cr. 83-361-01]
filed with the Clerk of the United
States District Court for the District
of New Jersey on December 21, 1983,
aLiGgineg 4° 6 VERLatION:©}6~=~6af.. Title. Zi
UsoeCcAs. BONS3 Titie 21 UsaS.«C.A. SONG;
and four (4) counts of Title 21 U.S.C.A.
SON2 AG? ADs, One Titie 26. .U.8.0.A,
§2, respectively. On June 4, 1984,
petitioner entered a plea of guilty
to Count I aforesaid pursuant to a
plea bargain agreement with the
Government}; said agreement being
approved by the District Court prior
to its entry.

On July 16, 1984, petitioner was

sentenced by Judge Bissell to fifteen

(15) years incarceration to run consec-
utively with a forty (40) year sentence
imposed by the State of Virginia;
Counts II through VI herein being
dismissed by the Court on the
Government's application, and with
the consent of the petitioner.
Petitioner was arrested on or

about January 13, 1982 and indicted

in Pulaski County, Virginia, for
Conspiracies to Distribute and
Manufacture Methaqualone [Virginia
Code Section 18.2 = 256]. On May

19, 1983, after a Virginia State trial
by jury, appellant was sentenced by
the Hon. R. Williams Arthur of the
Circuit Court of Pulaski County,
Virginia, to a net of forty (40) years
incarceration, and fined $25,000.00.
In July of 1984, petitioner exhausted
his Virginia appellate remedies; the

Virginia Supreme Court denying his

—_

petition for appeal from that
conviction.
Petitioner's co-conspirators in

the state prosecution were Samuel
Boardwine, Ronald Boardwine, Gary
Camp, Robert Fitz, and John Ayers.
According to evidence adduced at trial,
the State employed wiretaps on _ said

Ronald Boardwine from November 23,

1981, until January 12, 1982. Fur-
ther evidence indicated that
co-defendant John Ayers travelled

to South Carolina where he met _ the
instant petitioner, and received 50,000
methaqualude tablets. Ayers later
distributed the tablets to co-con-
Spirators as well as to others in
the Pulaski County area. Another
State co-conspirator, Samuel Boardwine,
was in the process of transporting
eight (8) barrels of micro crystal

cellulose when he was’ arrested by

the Virginia State Police, and those |
ingredients and nine thousand dollars
($9,000.) were seized.

Paragraphs. "i". .and “2" of Count
I herein are repetetive of the aforesaid
Virginia indictment. Further, the
Government sought to intoduced_ the
same intercepted telephone conversat-
ions, and oral evidence in the District
of New Jersey as the State of Virginia

employed in its earlier prosecution.

REASONS FOR GRANTING

THE WRIT .

Petitioner submits that the decision

CAAA o OAS, MORE eA wah eae

of the United States Court of Appeals
for the Third Circuit sanctioned the
departure by the United States District
Court for the District of New Jersey,

from accepted and usual judicial

ee

proceedings with regard to sentencing
pursuant to Title 21 U.5.CsA. Fess.
Petitioner maintains his sentence
was cruel and unusual punishment ‘in
violation of the Eighth Amendment
of the United States Constitution,
and alternately, an abuse of discretion
by the Trial Court.

A sentence so severe as to be
cruel and unusual within the meaning
of the Eighth Amendment of the United
States Constitution cannot stand.

Weems v. United States, 217 u.S. 349

(1910); Downey vv. Perini. 518 F. 24

1288, vacated on other grounds, 423

U.S. 832 44975). Petitioner, a man
in his mid thirties, with a wife and
child, a record of employment, and
no prior criminal history other than
the aforesaid Virginia conviction,

received a fifteen (15) year Federal

10

sentence consecutive to a forty (40)
year Virginia sentence for essen-
tially the same criminal acts within
the same time frame. The consecutive
sentence is cruel and unusual punishment
per se, and must be set aside.

However should this Court ‘reach
the conclusion that the aggregate
of fifty five (55) years is not cruel
and unusual within the meaning of
the Eighth Amendment, then petitioner
urges this Court to review the excessive
nature of his sentence, in the exercise
of its supervisory power over. the
administration of justice in the lower
federal courts, and to review’ the
duration of that sentence imposed
by the District Court, even though
the duration of the sentence does
not exceed the statutory maximum.

Carbo v. United States, 364 U.S. 611

ee ee ee re Cee ee

11

(1961); United States v. Holder, #12

F. 2d 212 (CA2d, 1969); United States

ve. Moore, 427 F. 2d 38 (CA5th, 1970),

cert. denied, 400 U.S. 965.

In deliberating upon its’ sentence
the District Court erroneously concluded
that petitioner fled Virginia while
being prosecuted, travelled to New
Jersey, and then extended his illegal
business to California. That conclusion
is not supported by any view of the
facts, the record in the case, or
the Pre Sentence Report. The District
Court further stated with regard to
petitioner's barbituate activity:

",... for this Court to merely,

because of the fact that we
are dealing with a ten year
minimum here, to impose’ the
minimum because of its private
deterrent effect seems to
me would be to ignore the
message of Congress with regard
to the significance of criminal
conduct of this kind."

Petitioner submits that the Court

\ 12
erred in believing that Congress
mandated any sentence greater’ than

the minimum for activity of this kind,

and despite the instant Court
recognizing the private deterrent
effect a ten (10) year sentence would
have in cases involving the _ dist-
ribution of quaaludes. The record
in this case, and before Congress,

is barren of
the District
Furthermore, there i

before Congress or in

supporting

Court's

evidence for
statement.
s no evidence

the record to

support the additional statement of
the District Court that the instant
crime:
eeee 18 a serious one, not
that within the very maximum
of the range involved here,
but far from the minimum as
well.

Congress has set no

and if this statement

ae ee ET

such guidelines,

is merely the

ei elle lA Fs Ok te weit ier ae

oe

13

philosophy of the sentencing Court,
than the Court wrongly sentenced the
crime primarily, and the petitioner
secondarily. The District Court clearly
abused its discretionary sentencing
power, and acted upon a mistaken view
of the facts and the law.

Abuse of discretion is a sufficient
predicate on which to base _ direct
appellate review of sentences imposed
by the District Court within statutory

guidlelines. United States v. Brown,

382 F. 2d 52 (CA 3rd, 1967); United

states v. Fessler, %53 F. 2d 953 (CA

3rd, 1972).

In United States v. Daniels, 446

F. 2d 967 (1971), the Court of Appeals
for the Sixth Circuit recognized that
the process of sentencing was not
wholly immunized from judicial review

solely because the sentence fell within

14

permissible statutory limits. The
Court stated that the exercise of
the sentencing court's discretion
would be subject to appellate review
under limited circumstances, such
as improper consideration of certain
factors, improper reliance upon certain
false information, or gross abuse
of discretion by failing to evaluate
relevant information before sentencing.
See also, 33 University of Pittsburgh

Law Review, 917, 927; United States

v. Charles, 460 F. 2d 4«=6—.1093, (CA

6th,1972), Cholding that there was
nothing in the record to support the
District Court's attempt to justify
his "severe" sentence by finding
defendant's beliefs to be insincere];

Woosley v. United States, 478 F. 2d

139 (CA 8th, 1973), [mechanical and

automatic sentencing formulas are

15

inappropriate]; also similarly, United

States v. Wiley, 278 F. 2d 500 (CA

7th, 1960); Leach v. United States,

334 F. 2d 945 (CADC, 1964).

Petitioner's sentence was an abuse
of discretion by the District Court,
and unsupported in its conclusions,
and should be reviewed as an error
of constitutional proportion. The
failure of the United States Court
of Appeals for the Third Circuit to
reverse that sentence must be addressed
by the United Supreme Court by granting

the Writ.

CONCLUSION

For the foregoing reasons, a writ
of certiorari should issue to review
the judgment of the United States

Court of Appeals for the Third Circuit.

16

Respectfully submitted,

B. Alan Seidler
Attorney for Petitioner
118 Main Street

Tappan, New York 10983

(914) 359-3770

APPENDIX

Al

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 84-5546

UNITED STATES OF AMERICA
Vv.
JOSEPH VINCENT THOMAS, a/k/a "Vinny
Thomas,"
a/k/a “Vincent Marlin," a/k/a "Joseph

Quest"

On Appeal from the United States
District Court for the District of
New Jersey Trenton (D.C. No.
83-00361-01)

District Judge: Honorable John WwW.

Bissell

Submitted Under Third Circuit Rule
12(6)

February 7, 1985

Opinion Tiled February 12, 1985

Before: GARTH, BECKER, AND ROSENN,

Circuit Judges

MEMORANDUM OPINION OF THE COURT

ROSENN, Circuit Judge.

The Government charged the
defendant, Joseph Vincent Thomas,
in a six count indictment with violating
21 U.S.C. §848 (knowingly and
intentionally engaging in a continuing
criminal enterprise) in concert with
at least six other persons, conspiracy
to distribute and possess with intent
to distribute controlled substances,
the substantive counts charging
violations of 21 UsS.0. S§68itarti?.

Following an unsuccessful effort between

Wesel

us athe sa anid. Mh le

A3

the defendant and the Government to
enter into a cooperative plea agreement,
the defendant retracted his original
plea of not guilty and entered a plea
of guilty pursuant to a non cooperat-—
ive plea agreement with the Government
to count I charging’ the violation
of 21.U.$S.C. $848.

At sentencing, defense counsel
addressed all factual matters in the
presentence report, correcting or
giving the defendant's version of
all controverted facts in the report.
The district court explained that
he firmly er that the defendant
should be sentenced for tne crime
to which. he pled guilty "and not [for]
some other unproven incidents." After
an eloquent plea from defense counsel
to have sentence imposed concurrent

with a 40 year sentence presently

g

A4¥

being served by the defendant under
a state sentence in Virginia, a plea
for leniency from the defendant
personally and from his mother, the
court felt constrained to impose a
15 year sentence of imprisonment to
run consecutive to the sentence imposed
under the law oof £Virginia. In
accordance with the plea agreement,
the Government dismissed the remaining

counts of the indictment.

1 Under the terms of the plea
agreement, the Government took no
position with the court as to whether
the sentence should be concurrent

or consecutive.

AS

The ‘defendant appeals contending
that the sentence imposed was cruel
and unusual and violated the Eighth
Amendment of the United States
Constitution and, alternately,
constituted an abuse of discretion
by the district court. In addition,
defendant contends that the district
court imposed its sentence on the
basis of false and incomplete
information. After carefully reviewing

the briefs and record, we affirm.

The sent¢ncing decision is a
function traditionally vested in the
trial court and, "if within statutory
limits, is generally not subject to

review." United States v. Tucker,

4O4 U.S. 443, 447 (1972). In sentencing
this defendant, the district court

carefully considered the personal

A6

circumstances of the defendant = and
his family, the seriousness of the
crime, and imposed a term of 15 years
under a statute prescribing a minimum
sentence of 10 years and a maximum
sentence of life imprisonment. The
defendant's argument that the sentence
is cruel and unusual punishment per
se" because it is consecutive to a
40 year sentence imposed by the State
of Virginia is unsupported by authority.
Fuerthermore, it misconstrues the
terms of the eighth amendment. As

the Supreme Court noted in Rummel

v. Estelle, %&5 U.S. 263, 275 (1980),

the amendment is directed to punishment
that is cruel and unusual in kind,
not in degree. The limitations on
sentencing are imposed by Congress
and the district court very nearly

confined itself to the bottom of the

ns a i i ae Se HO

A7

range explicitly provided for this
offense.

As for defendant's alternative
argument that the district court abused
its discretion, we see no merit in
it. The district court painstakingly
explained to the defendant and counsel
that it was imposing sentence on the
basis of the defendant's own criminal
acts and in accordance with the
statutory terms mandated by Congress.
The record demonstrates a carefully
reasoned exercise of judicial discretion
by a very concerned and _ = sensitive
judge.

The defendant's contention that
the court imposed sentence on the
basis of false and incomplete
information is frivolous and without
foundation. The Government completely

complied with its plea agreement with

A8

the defendant at sentencing.
The judgment of the district court

will be affirmed.

TO THE CLERK:

Please file the foregoing opinion.

Circuit Judge

Ag

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 84-5546

UNITED STATES OF AMERICA
Vv.
JOSEPH VINCENT THOMAS, a/k/a "Vinny
Thomas,"
a/k/a “Vincent Marlin,” a/k/a “Joseph

Quest"

On Appeal from the United States
District Court for the District of
New Jersey Trenton (D.C. No.
83-00361-01)

District Judge: Honorable John WwW.

Bissell

Submitted Under Third Circuit Rule

Al0

12(6)

February 7, 1985

Opinion Filed February 12, 1985

Before: GARTH, BECKER, AND ROSENN,

Circuit Judges

JUDGMENT

This cause came on to be heard
on the record from the United States
District Court for the Disrtict of
New Jersey and was submitted under
the Third Circuit Rule 12(6) on February
7, 1985.

On consideration whereof, it is
now here ordered and adjudged by this
court that the judgment of the district
court entered on July 16, 1984, be

and the same is hereby affirmed.

Attest:

Sally Mrvos /s/

All

Clerk
Certified as a true copy and issued
in lieu of formal mandate on March
6, 1985.
Test: M. Elizabeth Ferguson /s/
Chief Deputy Clerk, U.S. Court of

Appeals for the Third Circuit

Dated: February 12, 1985

UNITED STATES DISTRICT COURT

for the DISTRICT OF NEW JERSEY
United States of America
vs.
JOSEPH VINCENT THOMAS
Cr. 83-361-01
JUDGMENT AND -PROBATION/COMMITMENT
ORDER
COUNSEL
In the presence of the attorney
for the government the defendant apeared
in person on this date, July 16, 1984,
with counsel, B. Alan Seidler, Esq.
PLEA
GUILTY, and the Court being
satisfied that there is a factual
basis for the plea TO COUNT I.
FINDING & JUDGMENT
Defendant has been convicted as
charged of the offense of 21:848

Continuing Criminal Enterprise.

Al3

SENTENCE OR PROBATION ORDER

The court asked whether defendant
had anything to say why judgment should
not be pronounced. Because no
sufficient cause to the contrary was
shown, or appeared to the court, the
court adjudged the defendant guilty
as charged and convicted and ordered
that: The defendant is hereby committed
to the custody of the Attorney General
or his authorized representative for
imprisonment for a period of fifteen
(15) years to run consecutively with
sentence imposed by the State of
Virginia.

ORDERED COUNTS 25354%,5, and 6
be dismissed on government's
application.

COMMITMENT RECOM-
MENDATION

The court orders commitment to

the custody of the Attorney General

and recommends,
JOHN W. BISSELL, U.S.D.J. /s/
Date 7/18/84

It is ordered that the Clerk deliver
a certified copy of this judgment
and commitment to the U.S. Marshal
or other qualified officer.
CERTIFIED AS A TRUE COPY ON

This date 7-18-84.

---

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