United States v. Thomas
factors and its reasoning for imposing the sentence that it did, we VACATE Thomas’s sentence and
REMAND the case for resentencing.
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United States v. Thomas, 116 F. App’x 727, 728-29 (6th Cir. 2004) (unpublished opinion).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.
We affirmed Thomas’s conviction on appeal. Thomas, 116 F. App’x 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 (2005). Thomas v. United States, 543 U.S. 1116 (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Thomas, No. 03-1691 (6th Cir. Apr. 1, 2005) (unpublished order).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.
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
Because the statutory maximum of 240 months in prison was less than the upper limit of the applicable
Guidelines range, the district court had the discretion to sentence Thomas only within the range of 210 to 240 months
in prison. See U
Although Judge Cleland is a United States District Judge for the Eastern District of Michigan, Thomas’s
resentencing was assigned to him as a visiting judge for the Western District of Michigan.