United States of America v. Charles B. Thomas

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 25, 2023
Decided August 24, 2023
Before
KENNETH F. RIPPLE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1377
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES B. THOMAS,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 4:98-CR-40004-JPG-1
J. Phil Gilbert,
Judge.
O R D E R
Charles Thomas, who is serving a 60-year state prison sentence for murder, was
sentenced to serve a consecutive 12 years in federal prison for possession with intent to
distribute cocaine base, commonly referred to as crack cocaine. See 21 U.S.C. § 841(a)(1).
He appeals the federal sentence, arguing for the first time that the district court
misapplied the Sentencing Guidelines when it imposed a sentence that was consecutive.
See U.S.S.G. §§ 5G1.3(b)(2), 5G1.3(d) (policy statement). Regardless of whether he
waived or forfeited the argument, the court did not plainly err by imposing a
consecutive sentence, so we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1

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Background
Charles Thomas’s partner, Anissa Green, died from blunt force trauma to the
head on November 6, 1997. The following day, Thomas was charged in Illinois court
with two counts of murder. In the Amended Bill of Indictment, the State provided
alternative theories of how Thomas murdered Green—that he either beat her to death
“and/or” forced her to ingest cocaine. In Count One, it provides:
[Thomas], without lawful justification and with the intent to do great bodily
harm to Anissa Green, beat Anissa Green causing blunt trauma to her face
and head, and/or forced Anissa Green to ingest cocaine, a controlled
substance, thereby causing the death of Anissa Green.
Count Two charged Thomas with beating Green, stating:
[Thomas], without lawful justification, beat Anissa Green causing blunt
trauma to her face and head, knowing such act created a strong probability
of death to Anissa Green, thereby causing the death of Anissa Green.
A jury convicted Thomas of both counts, without specifying which theory it relied on,
and the state court sentenced him to 60 years’ imprisonment.
At the time of Green’s death, Thomas had been under investigation by local
police and the FBI for the distribution of crack cocaine. And, on November 7, 1997, the
day after Green’s murder, officers executed a search warrant at Thomas’ home, where
they discovered crack cocaine, drug paraphernalia, and a pistol with ammunition.
On January 7, 1998, Thomas was charged in the Southern District of Illinois with
two counts, including possession with intent to distribute cocaine base, 21 U.S.C.
§ 841(a)(1), and unlawful possession of a firearm by a convicted felon. 18 U.S.C.
§ 922(g)(1). While he was acquitted of the gun charge, a jury convicted Thomas of
possession with intent to distribute crack cocaine.
Based in part on his guidelines designation as a career offender under the
residual clause of U.S.S.G. § 4B1.2(a)(2) (1998), Thomas was sentenced to 25 years’
imprisonment, to run consecutively to the 60-year state sentence. Several years later,
after his conviction was affirmed, see United States v. Thomas, 210 F.3d 377 (7th Cir.
2000), and his petition under 28 U.S.C. § 2255 was denied, we permitted Thomas to file

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a successive habeas petition. Thomas v. United States, No. 16-1788, Dkt. 5 at 1–2 (7th Cir.
May 5, 2016). Thomas argued, and the government agreed, that he was entitled to
resentencing using the non-career-offender guideline range under Cross v. United States,
892 F.3d 288 (7th Cir. 2018), which invalidated the mandatory residual clause of
§ 4B1.2(a)(2) on grounds of unconstitutional vagueness. See Thomas v. United States, No.
16-cv-744, Doc. 11 at 6 (N.D. Ill. Oct. 30, 2018), Doc. 15 at 7 (N.D. Ill. Dec. 13, 2018). The
district court vacated Thomas’s sentence. Id. Doc. 18 at 1 (N.D. Ill. May 27, 2020).
Upon resentencing, a probation officer updated Thomas’ presentence report
(“PSR”) and calculated a guidelines range of 121 to 151 months, down from 262 to 327
months. In the PSR’s summary of Thomas’ federal offense conduct, the officer described
the defendant’s drug distribution history and the evidence recovered during the
execution of the search warrant on November 7, 1997. In the criminal history portion of
the PSR, the officer also explained that Thomas had been found guilty of two counts of
murder for the death of Anissa Green in state court. According to the PSR, “Thomas
[had] beat Green” and “she died from blunt trauma to the head.”
Of significance here, the probation officer concluded that Thomas’s possession
with intent to distribute crack cocaine federal conviction was “not related” to the state
court murder conviction. By not considering the state murder conviction as relevant
conduct meant that the district court could run Thomas’s federal sentence concurrent
with, partially concurrent with, or consecutive to the undischarged state sentence.
See U.S.S.G. § 5G1.3(d) (policy statement) (providing that if a prior offense is not
relevant conduct to the instant offense, the judge may impose a sentence concurrent,
partially concurrent, or consecutive “to the prior undischarged term of imprisonment”).
In a written response to the PSR, Thomas failed to object the probation officer’s
finding that the two convictions were unrelated, but instead, objected to the officer’s
estimate of drug quantity that Thomas was alleging responsible for possessing and
distributing. After briefing from the parties, the district court limited the scope of
resentencing. The court ruled that it would use prior factual findings but apply current
law and consider Thomas’s post-sentencing rehabilitation.
At the resentencing hearing, the district court overruled Thomas’s objection to
the estimated drug quantity and asked whether he had further objections to the PSR.
Thomas responded that he did not. The court then adopted the PSR.

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After adopting the PSR’s sentencing guidelines calculation, the court heard
argument from both sides regarding the appropriate sentence under the sentencing
factors for Thomas. See 18 U.S.C. § 3553(a). The government argued for a 151-month
sentence and asked the court to consider Thomas’s serious criminal history, including
his murder of Green. In response, Thomas objected to any consideration of his murder
conviction because it exceeded the bounds of what the court was considering for
purposes of resentencing. According to Thomas’ reading of the court’s order, the court
limited the resentencing hearing to the new sentencing parameters around crack
cocaine and Thomas’ post-sentencing rehabilitation. The court did not specifically
address the objection, apart from saying that it would allow the government some
“latitude.” Continuing his argument, Thomas petitioned the court to impose a 121-
month sentence and to run this sentence concurrently with the state sentence, because a
consecutive sentence would be overly punitive.
The district court sentenced Thomas to 12 years’ imprisonment, consecutive to
his 60-year state sentence. The court deemed a consecutive sentence necessary because
Thomas’s cocaine conviction had nothing to do with the murder, and he needed to be
punished for his cocaine conviction:
I know you want this to run concurrent with the state sentence, but if I did
that, there would be absolutely no punishment for your federal crime, none
whatsoever, and I can’t do that. I have to—you have to serve some
punishment for the federal crime you committed. It’s unrelated—totally
unrelated—to the state sentence you’re currently serving.
So the sentence I’m going to give you will be running consecutive to your
current state sentence because there needs to be some accountability for the
[federal] crime you committed … .
The court later reiterated the importance of a consecutive sentence: “I cannot and will
not run this thing concurrent because that would mean no punishment for your federal
crime.”
Analysis
Thomas appeals his sentence. For the first time, he now challenges the district
court’s decision to adopt the PSR in its entirety, including its determination that the
convictions were unrelated. This determination is at the heart of this appeal because the

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sentence for an unrelated offense “may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(d) (policy
statement). But if the murder were deemed relevant conduct (as Thomas urges), then
§ 5G1.3(b) directs that the sentence “be imposed to run concurrently.”
The government argues that Thomas waived this argument, but Thomas—who
concedes that he did not preserve his challenge in the district court—asks the court to
treat his failure to object as a forfeiture, reviewed for plain error. “The lines between
waiver and forfeiture are not always clear.” United States v. Robinson, 964 F.3d 632, 640
(7th Cir. 2020). Waiver occurs when a party intentionally abandons an argument, while
forfeiture results from negligence. See United States v. Olano, 507 U.S. 725, 731, 733
(1993); Robinson, 964 F.3d at 639–40. The key concern is “whether a defendant chose, as a
matter of strategy, not to present an argument.” United States v. Garcia, 580 F.3d 528, 541
(7th Cir. 2009).
For sentencing arguments, we typically find waiver when the defendant (1)
objected to other parts of the PSR that do not concern the asserted error, (2) stated on
the record that he had no further objections, and (3) had sound strategic reasons for
failing to press the argument in the district court. See United States v. Hathaway, 882 F.3d
638, 641–42 (7th Cir. 2018); United States v. Brodie, 507 F.3d 527, 531–32 (7th Cir. 2007).
Only the third element—strategic reasons—is at issue here.
We agree with the government that Thomas had obvious strategic reasons not to
argue that the murder conviction was relevant conduct to his drug conviction. As the
government notes, an objection from Thomas would have highlighted his culpability
for a much more serious crime (murder) while he was being sentenced for a non-violent
drug offense. Even if the district court sustained Thomas’s objection to the PSR, the
district court still could have sentenced him to a consecutive sentence, given that the
Guidelines are only advisory. See United States v. Brown, 973 F.3d 667, 713 (7th Cir.
2020). And the resultant sentence likely would have exceeded his current one: If the murder
were considered “relevant conduct,” then Thomas’s guidelines range would increase to life
imprisonment. Because his prison term was capped by the 20-year statutory maximum, his
sentence could have been lengthened by eight years. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
Moreover, Thomas hinted at this strategy himself when, at the sentencing hearing, he
objected to the government’s references to the murder conviction. Unlike the
circumstances in United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005), there are
strategic reasons, as the government pointed out, for why Thomas would choose not to

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object to the alleged relevant-conduct error and for why this unpreserved argument
could be deemed waived.
Even if we reviewed Thomas’s challenge to the court’s relevant-conduct
determination for plain error, he would face an insurmountable hurdle on appeal. To
establish plain error, he would need to show that the error is “clear” or “obvious” and
that it affected his substantial rights and the fairness or integrity of the proceedings.
Olano, 507 U.S. at 732, 734; United States v. Boyle, 28 F.4th 798, 802 (7th Cir. 2022). To
demonstrate by a preponderance of the evidence that his murder conviction was
relevant conduct to his drug possession with intent to distribute conviction, Thomas
bore the burden, see United States v. Nania, 724 F.3d 824, 832–33 (7th Cir. 2013), of
establishing that the murder occurred “during the commission of the offense of
conviction” or constituted “harm that resulted from” the offense of conviction. U.S.S.G.
§§ 1B1.3(a)(1)(A), (a)(3).
Relevant conduct must “involve the same victims, stem from the same
underlying conduct, or [be] similar offenses.” United States v. Sanchez, 814 F.3d 844, 850–
51 (7th Cir. 2016). Here, Thomas maintains that because Green’s death occurred “during
the commission” of his drug trafficking offense and “constituted harm that resulted
from his trafficking of cocaine,” the court plainly erred in finding the two offenses
unrelated. This argument is misplaced.
While the state amended indictment and the federal indictment charged conduct
that occurred on the same day, relevant conduct requires a more direct link than “mere
temporal overlap.” United States v. Agyekum, 846 F.3d 744, 751 (4th Cir. 2017). As to his
second argument, Thomas reads too much into the language of the state amended
indictment. The State proceeded on two alternative murder theories, and he was convicted
on both. In Count One, Thomas was charged with intending to do great bodily harm to
Green by beating her causing blunt trauma to the face and head and/or forcing Green to
ingest cocaine. As the government points out, the record does not indicate, as Thomas
suggests, that he was convicted under the alternative forced-ingestion theory. Without
sufficient evidentiary support that cocaine played a part in Green’s death, Thomas is
unable to meet his burden by a preponderance of the evidence, and we are unable to
find error.
Plain error is not “subtle, arcane, debatable, or factually complicated.”
United States v. Ramirez, 783 F.3d 687, 694 (7th Cir. 2015) (citation omitted). Here, the
record shows no clear connection between the murder and cocaine offenses. Moreover,

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Thomas points to no favorably analogous case, nor could we find one. See id. at 695;
see also United States v. Clark, 935 F.3d 558, 571 (7th Cir. 2019) (error not plain where
“[defendant could] not establish with precedent or otherwise that the district court
should have acted sua sponte to treat his Illinois offense as conduct relevant to his
Wisconsin charge”). For these reasons, the district court’s judgment and sentence
calculation is AFFIRMED.

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