United States v. Tammy Thomas

In United States v. Thomas, No. 23-10735 (5th Cir. Sept. 5, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s guilty-plea conviction for wire fraud. Thomas is a former financial analyst, who pled guilty to misappropriating rebate funds from her employer. At sentencing, Thomas received a 36-month prison sentence, to be followed by two years of supervised release. On appeal, she challenged two of the rules she was ordered to follow while on supervised release.

Holding 1: The Fifth Circuit declined to resolve Thomas’s argument against a risk-modification condition, finding that the issue was not ripe. That condition of supervised release said this: “[i]f the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.”

The court held that it was a “matter of conjecture” whether a probation officer would ever require Thomas to notify someone under that rule. And if that were to occur, Thomas could still seek relief by asking the district court to modify the condition. “Until then, however, her claim [was] not ripe.”

Holding 2: The district court did not err by prohibiting Thomas from employment “in any fiduciary capacity or any position allowing access to credit or personal financial information of others, unless the defendant’s employer is fully aware of the offense of conviction and with the approval of the probation officer.” Thomas had not sufficiently preserved her arguments in the district court, so the Fifth Circuit reviewed them under the plain-error standard.

First, the district court did not abuse its discretion by finding that this rule was consistent with USSG § 5F1.5(a)(2), which permits employment restrictions only if they are “reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.” Here, “over a three-and-half-year period,” Thomas “used her position in a fiduciary capacity to steal $1,472,672.72 from her employer.” From that, the court could reasonably conclude that this rule was reasonably necessary.

Second, Thomas failed to show that this rule violated USSG § 5F1.5, 18 U.S.C. § 3583(d), or United States v. Caravayo, 809 F.3d 269, 276 (5th Cir. 2015). Broadly speaking, those authorities limits employment restrictions to “the minimum time and … the minimum extent necessary to protect the public,” such that they are not “boilerplate” or a “greater deprivation of liberty than reasonably necessary.” Here, Thomas was only placed on two years of supervised release, and the rule still permitted her to seek a probation officer’s permission; so this was not an absolute ban and was sufficiently tailored to her criminal conduct.