U.S. v. Thomas

• Decision Date: 10 August 2007
• Docket Number: No. 06-1290.,06-1290.
• Citation: 498 F.3d 336
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Roy THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.3d 336

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Roy THOMAS, Defendant-Appellant.

No. 06-1290.

United States Court of Appeals, Sixth Circuit.

Argued: July 18, 2007.

Decided and Filed: August 10, 2007.

ARGUED:

Gary W. Crim, Dayton, Ohio, for Appellant. Julie Ann Woods, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

ON BRIEF:

Gary W. Crim, Dayton, Ohio, for Appellant. Julie Ann Woods, Andrew Byerly Birge, Assistant United States Attorney,

Grand Rapids, Michigan, for Appellee.

Before: MOORE and GILMAN, Circuit Judges; FORESTER, District Judge.^*

MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined. FORESTER, D.J. (pp. 341-44), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Kenneth Roy Thomas ("Thomas") was convicted by a jury on one count of bank robbery. After a prior appeal and remand for resentencing, Thomas now appeals his sentence of 240 months in prison, five years of supervised release, a $4,500 fine, and ten dollars in restitution. Thomas argues that his sentence is unreasonable because the district court did not consider adequately the factors set forth in 18 U.S.C. § 3553(a). Because the record does not make clear the district court's consideration of the relevant § 3553(a) factors and its reasoning for imposing the sentence that it did, we VACATE Thomas's sentence and REMAND the case for resentencing.

I. BACKGROUND

We have previously summarized the underlying facts in this case:

On September 23, 2002, a man entered a Bank One branch in Grand Rapids, Michigan, approached a teller window, and demanded "your hundreds, your fifties," and a pack of tens. Tolanda Staten, the teller, testified that the robber ordered her to either "[g]o talk to them," or "[d]on't talk to them," but she was uncertain exactly what he said. Staten was so distraught she forgot bank procedures and her manager's name, but she did give the robber a pack of tens with a dye pack in it. After the robber fled, she shouted to the bank manager that she had been robbed and called the police to give them a description of the robber.

United States v. Thomas, 116 Fed.Appx. 727, 728-29 (6th Cir.2004) (unpublished opinion). The robber was soon apprehended and identified as Kenneth Roy Thomas. A federal jury found Thomas guilty of one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Then-District Judge David W. McKeague sentenced Thomas to the statutory maximum of 240 months in prison, within the then-mandatory Guidelines range of 210 to 262 months in prison.¹

We affirmed Thomas's conviction on appeal. Thomas, 116 Fed.Appx. 727. Although Thomas did not raise any sentencing issues on appeal, he filed a petition for writ of certiorari in the Supreme Court, and on January 24, 2005, the Supreme Court granted Thomas's petition, vacated the judgment, and remanded the case back to us for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Thomas v. United States, 543 U.S. 1116, 125 S.Ct. 1104, 160 L.Ed.2d 1064 (2005). On April 1, 2005, we remanded the case to the district court for resentencing in light of Booker. United States v. Thomas, No. 03-1691 (6th Cir. Apr. 1, 2005) (unpublished order).

Judge McKeague meanwhile had become a judge on our court. On remand, Thomas's case was reassigned to District Judge Robert H. Cleland for resentencing.² On November 14, 2005, Thomas filed a sentencing memorandum discussing the relevant § 3553(a) factors. Among other things, Thomas's memorandum discussed the relatively nonviolent nature of Thomas's crime; argued that a sentence below the applicable Guidelines range would adequately reflect the seriousness of the offense, provide just punishment, and avoid unwarranted sentencing disparities, as defendants convicted of similar crimes generally received far shorter sentences; argued that a sentence below the applicable Guidelines range would protect the public from any further crimes by Thomas, given his age; and noted Thomas's rehabilitative efforts. On February 2, 2006, the district court held Thomas's resentencing hearing. The district court noted that it "ha[d] received [Thomas's sentencing memorandum], read it and understand its presentations." Joint Appendix ("J.A.") at 34 (2/2/06 Hr'g at 7). After addressing arguments relating to Thomas's representation and the geographic location of resentencing, the district court calculated the applicable Guidelines range to be 210 to 262 months in prison, noted the statutory maximum of 240 months in prison, and stated:

It is quite clear to me that Judge McKeague had every ability to impose a sentence less than 240 months. He recognized a range certainly of 210 to 240 months, and it is not entirely clear why, except for in the exercise of the utmost restraint and caution, a case such as this would be remanded for reconsideration and resentencing. Upon full reconsideration, it is my view that a sentence of 240 months is appropriate. It is a sentencing fact that replicates the middle of the guideline range correctly calculated here. It happens to coincide with the statutory maximum, but that is, as far as I am concerned, essentially happenstance. I believe that a sentence of 240 months, given the defendant's background and behavior in this particular case is a fair, adequate and reasonable sentence considering the advisory guideline range that applies, and as well considering the additional factors contained within 18 [U.S.C.] Section 3553(a).

J.A. at 40-41 (2/2/06 Hr'g at 13-14). The district court also sentenced Thomas to five years of supervised release, a $4,500 fine, and ten dollars in restitution. Thomas timely appealed.

II. ANALYSIS

Thomas argues that his sentence should be vacated because the district court's sentencing determination was procedurally unreasonable.

A. Standard of Review

We review a district court's sentencing determination for reasonableness, Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007); United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005), cert. denied, 546 U.S. 1126, 126 S.Ct. 1110, 163 L.Ed.2d 919 (2006), which, we have determined, "has both substantive and procedural components," United States v. Jones, 489 F.3d 243, 250 (6th Cir.2007). The Supreme Court's recent decision in Rita v. United States "reinforces our conclusion that reasonableness review requires us to inquire into both `the length of the sentence' and `the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.'" United States v. Liou, 491 F.3d 334, 338 (6th Cir.2007) (quoting Webb, 403 F.3d at 383). "Rita exhorts the sentencing judge to satisfy the procedural requirement of `set[ting] forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.'" Id. (alteration in original) (quoting Rita, 127 S.Ct. at 2468). Accordingly, "we review the sentencing transcript to ensure (1) that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly stated his reasons for imposing the chosen sentence, and (2) that the sentence is substantively reasonable." Id. at 339 (footnote omitted). Although "[t]he amount of reasoning required varies according to context," id. at 338, "we will vacate a sentence if the `context and the record' do not `make clear' the court's reasoning," id. at 339 n. 4 (quoting Rita, 127 S.Ct. at 2469).

The government agrees that we normally review a sentence for reasonableness, but argues that we should review the district court's sentencing determination in this case only for plain error because Thomas did not object below to the district court's statement of reasons. In United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we set forth the following rule governing this issue:

[D]istrict courts, after pronouncing the defendant's sentence but before adjourning the sentencing hearing, [must] ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised. If the district court fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will not be required to demonstrate plain error on appeal. If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity [to] speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal.

Id. at 872-73 (footnote omitted). We have since made clear that "[a] district court can satisfy the requirements of the Bostic rule only by clearly asking for objections to the sentence that have not been previously raised." United States v. Clark, 469 F.3d 568, 570 (6th Cir.2006). In this case, the district court asked Thomas's counsel, "Do you have anything further for the record, Mr. Canady?" J.A. at 44-45 (2/2/06 Hr'g at 17-18). We have previously determined that a similar question by the district court is not clear enough to satisfy the requirements of the Bostic rule. See Clark, 469 F.3d at 570 (concluding that a district court did not satisfy the requirements of the Bostic rule by asking, "Anything else, Ms. Goode?"). Accordingly, Thomas's failure to raise his argument below does not limit us to plain-error review.

B. Procedural Reasonableness

Thomas argues that the district court's sentencing determination was procedurally unreasonable because the district court did not adequately set forth reasons for imposing Thomas's sentence. We agree. The record makes clear that the district court considered the applicable Guidelines range, but not much else. The district court generally noted "the defendant's background and behavior in this particular...