United States v. Thomas, 080619 FED6, 18-1592

Docket Nº:18-1592
Opinion Judge:MURPHY, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. Tirrell Perry Thomas, Defendant-Appellant.
Attorney:Ray Edward Richards, II, RICHARDS & ASSOCIATES, PLLC, Troy, Michigan, for Appellant. Vito S. Solitro, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Judge Panel:Before: McKEAGUE, KETHLEDGE, and MURPHY, Circuit Judges.
Case Date:August 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Tirrell Perry Thomas, Defendant-Appellant.

No. 18-1592

United States Court of Appeals, Sixth Circuit

August 6, 2019

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:17-cr-00176-2-Paul Lewis Maloney, District Judge.

ON BRIEF:

Ray Edward Richards, II, RICHARDS & ASSOCIATES, PLLC, Troy, Michigan, for Appellant.

Vito S. Solitro, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: McKEAGUE, KETHLEDGE, and MURPHY, Circuit Judges.

OPINION

MURPHY, CIRCUIT JUDGE.

This case spotlights the hazards for defendants when they do not tell the truth to the probation officers who prepare their presentence reports for sentencing. After pleading guilty to bank fraud, Tirrell Thomas needed only to accept responsibility for his actions (and not obfuscate) to obtain a guidelines range between 46 and 57 months' imprisonment. Yet Thomas lied about his involvement in the fraud to the probation officer working on his presentence report. So, when calculating his guidelines range, the court rejected an acceptance-of-responsibility reduction and applied an obstruction-of-justice enhancement. Thomas's lies bumped up his guidelines range to between 70 and 87 months. Finding that range still too low, the district court sentenced Thomas to 102 months. Seeing no procedural or substantive error with this sentence, we affirm.

I.

As a courtesy to its customers, Bank of America advances them funds whenever they deposit checks. The bank credits a check's value to an account immediately without any delay for the time it takes the check to clear. During this "float" period, the bank permits an accountholder to withdraw the funds while the bank confirms the check's validity.

Thomas turned this valuable service into a vehicle to defraud. He led the Michigan side of a conspiracy to steal from Bank of America; his cousin, Earl Lee Cobb, led the Illinois side. (We recently affirmed Cobb's sentence. United States v. Cobb, 766 Fed.Appx. 226, 227 (6th Cir. 2019).) The scheme operated as follows: In Michigan, Thomas or other "recruiters" would enlist Bank of America customers as coconspirators. The recruiters would give the customers' information (account numbers, debit card numbers, and PINs) to the Illinois conspirators. The Illinois conspirators would steal corporate checks, alter the checks to list the customers as payees, and deposit the checks into the customers' accounts. Back in Michigan, Thomas and others would promptly withdraw the funds before the bank uncovered that the checks were bad. Thomas would then divvy up the funds among the conspirators. All told, he participated in fraud causing bank losses of $214, 286.03.

In 2017, the United States charged Thomas, Cobb, and 17 others in a 28-count indictment. The first count charged all defendants with a conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344(2) and 1349. The rest charged subgroups of defendants with bank fraud for individual transactions, in violation of 18 U.S.C. §§ 2 and 1344(2). The indictment listed Thomas on 25 counts, second only to Cobb. He ultimately pleaded guilty to the conspiracy count and to one count of bank fraud.

If Thomas's deception had ended with this fraud, his offense level and criminal history would have generated a guidelines range between 46 and 57 months. But it did not end there. His probation officer found that he lied during his presentence interview. Thomas denied leading the Michigan cohort, denied recruiting others, and denied knowing of Cobb's role. (Cobb followed the same approach, falsely claiming that he had not spoken to Thomas about the scheme. Cobb, 766 Fed.Appx. at 228.) The probation officer thus recommended that the court deny an offense-level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1 (2016).

After learning of the lies, the United States asked for an obstruction enhancement as well. U.S.S.G. § 3C1.1. In support, it compiled evidence-including witness statements and cellphone records-showing that Thomas oversaw the Michigan recruiters and facilitated the withdrawals. Thomas also regularly spoke with Cobb on days with fraudulent activity and traveled to deliver money to Cobb at preplanned locations.

At sentencing, Thomas argued that he should receive the acceptance-of-responsibility reduction (and avoid the obstruction enhancement) because any lies did not affect the guidelines calculations and so were immaterial. The district court disagreed. It found that Thomas lied to the probation officer about his knowledge of Cobb's role and the extent of his recruiting. The court thus applied the obstruction enhancement and declined the acceptance-of-responsibility reduction, which produced a guidelines range between 70 and 87 months. It concluded that this range was insufficient under the sentencing factors in 18 U.S.C. § 3553(a). The court thus imposed an above-guidelines 102-month sentence.

II.

Thomas now challenges: (1) the obstruction enhancement; (2) the denial of the acceptance-of-responsibility reduction; and (3) the upward variance from the guidelines range.

1. Obstruction.

Thomas argues that the district court erred by applying the obstruction enhancement in U.S.S.G. § 3C1.1. Before reaching the merits, we note that our court has sent mixed messages on the standard of review for this guideline. All agree that an appellate court reviews "legal conclusion[s]," including the interpretation of § 3C1.1, "without the slightest deference." U.S. Bank Nat'l Ass'n v. Village at Lakeridge, LLC, 138 S.Ct. 960, 965 (2018); United States v. Cole, 359 F.3d 420, 425 (6th Cir. 2004). And all agree that it reviews "historical" fact findings-"who did what, when or where, how or why"-for clear error. U.S. Bank, 138 S.Ct. at 966; Cole, 359 F.3d at 425. But how should it review the application of the guideline to the facts-that is, the decision whether the historical facts rise to the level of obstruction under § 3C1.1?

Our cases have not been a model of clarity. Some have reviewed de novo the application of § 3C1.1 to the facts. United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018). These cases reason that the issue qualifies as "a mixed question of fact and law," which we have traditionally answered without deference to the district court. United States v. Bazazpour, 690 F.3d 796, 805 (6th Cir. 2012); cf. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Others have applied clear-error review. United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th Cir. 2002). These cases rely on 18 U.S.C. § 3742(e) (which directs appellate courts to "give due deference to the district court's application of the guidelines to the facts") and Buford v. United States, 532 U.S. 59 (2001) (which holds that § 3742(e)'s deference rule applies to guidelines that turn mostly on each case's facts, id. at 64-66). Still other cases have incorporated both standards, noting that courts should review de novo "whether facts constitute obstruction of justice," but also should "give due deference to the district court's application of the guideline to the facts." United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (citations omitted).

This conflict in our cases has good company. A sampling of out-of-circuit cases shows broad disagreement "as to whether a § 3C1.1 determination is to be reviewed as a question of fact or as a question of law." United States v. Claiborne, 676 F.3d 434, 440 n.1 (5th Cir. 2012) (Prado, J., concurring). Some cases evaluate this issue for clear error. See, e.g., United States v. McDonald, 804 F.3d 497, 504-05 (1st Cir. 2015); United States v. Arceo, 535 F.3d 679, 687 (7th Cir. 2008); United States v. Water, 413 F.3d 812, 819 (8th Cir. 2005); United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008); United States v. McKeighan, 685 F.3d 956, 975 (10th Cir. 2012). Others (many from the same circuits) apply de novo review. See, e.g., United States v. Trinidad-Acosta, 773 F.3d 298, 318 (1st Cir. 2014); United States v. Armenta, 883 F.3d 1005, 1009 (7th Cir. 2018); United States v. Chavez, 833 F.3d 887, 889 (8th Cir. 2016); United States v. Castro-Ponce, 770 F.3d 819, 821-22 (9th Cir. 2014); United States v. Craig, 808 F.3d 1249, 1260 (10th Cir. 2015); United States v. Guevara, 894 F.3d 1301, 1311 (11th Cir. 2018). And some cases have said that § 3742(e)'s "due deference" standard falls somewhere in between de novo review and clear-error review. United States v. Henry, 557 F.3d 642, 645 (D.C. Cir. 2009).

For our part, we question whether these two standards can be reconciled. It is "confusing[]" to say that our review should be "de novo but deferential[]." United States v. Robinson, 813 F.3d 251, 263 (6th Cir. 2016). Some might call deferential de novo review an oxymoron, "sort of like 'green pastel redness.'" John Hart Ely, Democracy and Distrust 18 (1980). In another context, for example, the Supreme Court has held that "[w]hen de novo review is compelled, no form of appellate deference is acceptable." Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991). And, in this guidelines context, the Court has contrasted the two standards by asking whether an appellate court should "review the trial court's decision deferentially or de novo." Buford, 532 U.S. at 60. It did not answer "both." It instead chose deferential review because of a district court's comparative advantage in resolving the issue posed by the specific guideline in that case (concerning whether prior convictions were related). Id. at 64-66.

Buford's guideline-specific logic would suggest that courts should decide this standard-of-review question (de novo or deferential?) guidel...

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