                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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

                                           No. 02-2391                                 FILED
                                                                                   Mar 08, 2013
                            UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
          Plaintiff-Appellee,                            )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Eastern
JACK LEWIS THOMAS,                                       )   District of Michigan
                                                         )
          Defendant-Appellant.                           )




Before:          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 re-

sentencing 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
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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