USA v. Thomas

Filing

Per Curiam OPINION filed: Thomas has moved for rehearing, asking that we vacate his sentence and remand to the district court for re-sentencing. [3014472-2] ....Because there is no clear and specific evidence that the district court would have imposed the same sentence post-Booker, Thomas's case must be REMANDED for the district court to re-sentence him under the procedures set out in Booker. See also United States v. McFalls, 675 F.3d 599, 604-05 (6th Cir. 2012). Decision not for publication. Danny J. Boggs and Martha Craig Daughtrey, Circuit Judges.

Case: 02-2391

Document: 006111615912

Filed: 03/08/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0244n.06

FILED

No. 02-2391
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACK LEWIS THOMAS,
Defendant-Appellant.

Before:

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Mar 08, 2013
DEBORAH S. HUNT, Clerk

On Appeal from the United States
District Court for the Eastern
District of Michigan

BOGGS and DAUGHTREY, Circuit Judges.
PER CURIAM. Defendant-appellant Jack Thomas was convicted of two counts of bank

robbery, in violation of 18 U.S.C. § 2113(a), and one count of possessing a firearm in furtherance
of a crime of violence (the second bank robbery), in violation of 18 U.S.C. § 924(c). The district
court sentenced Thomas to concurrent terms of 135 months’ imprisonment for each count of bank
robbery, followed by a mandatory consecutive term of 84 months’ imprisonment for the § 924(c)
count. Thomas appealed, and we affirmed. United States v. Thomas, 105 F. App’x 773, 775 (6th
Cir. 2004). Thomas has moved for rehearing, asking that we vacate his sentence and remand to the
district court for re-sentencing.
We agree, and the government concedes, that Thomas is entitled to a remand and resentencing under United States v. Booker, 543 U.S. 220 (2005). Booker applies to all cases on direct
review, id. at 268, including cases such as Thomas’s for which a petition for rehearing or rehearing

Case: 02-2391

Document: 006111615912

Filed: 03/08/2013

Page: 2

No. 02-2391
United States v. Thomas
en banc is pending. At Thomas’s original sentencing hearing, the district court treated the
Sentencing Guidelines as mandatory, which, after Booker, constitutes plain error. See United States
v. Barnett, 398 F.3d 516, 525–26, 529–30 (6th Cir. 2005). Because there is no clear and specific
evidence that the district court would have imposed the same sentence post-Booker, Thomas’s case
must be remanded for the district court to re-sentence him under the procedures set out in Booker.
See also United States v. McFalls, 675 F.3d 599, 604–05 (6th Cir. 2012).

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