                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0502n.06

                                             No. 07-2548                                 FILED
                                                                                      Jul 21, 2009
                             UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                   )
                                                            )
       Plaintiff-Appellee,                                  )
                                                            )      ON APPEAL FROM THE
       v.                                                   )      UNITED STATES DISTRICT
                                                            )      COURT FOR THE WESTERN
KENNETH ROY THOMAS,                                         )      DISTRICT OF MICHIGAN
                                                            )
       Defendant-Appellant.                                 )
                                                            )               OPINION
                                                            )


BEFORE: MOORE and WHITE, Circuit Judges; and OLIVER, District Judge.*



       SOLOMON OLIVER, JR., District Judge. Defendant/Appellant Kenneth Roy Thomas

(“Thomas” or “Defendant”) appeals from his second re-sentencing for bank robbery in violation of

18 U.S.C. § 2113(a), arguing that the sentence was procedurally and substantively unreasonable,

pursuant to United States v. Gall, 128 S.Ct. 586, 597 (2007). For the reasons which follow, the court

hereby AFFIRMS the sentence imposed by the district court, but REVERSES the district court’s

imposition of a five-year period of supervised release and REMANDS the case back to the district

court for re-sentencing with regard to this latter issue.




       *
          The Honorable Solomon Oliver, Jr., United States District Judge for the Northern
District of Ohio, sitting by designation.
                       I. FACTUAL AND PROCEDURAL HISTORY

       Defendant was indicted on September 25, 2002, by a grand jury in the Western District of

Michigan, on one count of bank robbery in violation of 18 U.S.C. § 2113(a). On January 29, 2003,

Defendant was convicted for robbery of a Bank One branch in Grand Rapids, Michigan. The district

court sentenced Defendant to 240 months’ imprisonment, a $4,500 fine and five years of supervised

release to follow his incarceration. Defendant’s conviction was affirmed on appeal. United States

v. Thomas, 116 F. App’x 727 (6th Cir. 2004). Thereafter, the United States Supreme Court, 543 U.S.

1116 (2005), vacated this sentence and remanded the case for re-sentencing, pursuant to United

States v. Booker, 543 U.S. 220 (2005). Because the sentencing judge, Judge David W. McKeague,

had been appointed to the U.S. Court of Appeals for the Sixth Circuit in the interim, the case was

reassigned to U.S. District Judge Robert H. Cleland for re-sentencing.

       On February 2, 2006, the district court adopted the original presentence investigation report

(“PSR”) and re-sentenced Defendant to 240 months’ imprisonment, a $4,500 fine and five years of

supervised release. On February 14, 2006, the Defendant appealed the sentence imposed by the

court, arguing that it was procedurally unreasonable. On August 10, 2007, the Sixth Circuit vacated

and remanded the case to the district court for a second re-sentencing, “[b]ecause the record did not

make clear the district court’s consideration of the relevant § 3553(a) factors and the reasons for

imposing the sentence it did. . .” United States v. Thomas, 498 F.3d 336, 341 (6th Cir. 2007).

       The court held the second re-sentencing of Thomas on December 6, 2007. At the second re-

sentencing hearing on December 6, 2007, the district court adopted the original PSR. The court also

noted that there were no objections to the United States Sentencing Guidelines (“Guidelines”) range


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calculation. In light of the fact that Defendant was a career offender under the Guidelines, the range

was 210 to 263 months. The statutory maximum was 240 months. Defendant, through counsel,

argued in mitigation that “the nature and circumstances of the offense” warranted a sentence

somewhere between the Guideline range he would have been facing if he had not been a career

offender, 92 to 115 months, and his range as a career offender, 210 to 263 months. Defense counsel

noted that: (1) no weapon was used in the robbery; (2) all but $10.00 was recovered; and (3) the

crimes that caused Defendant to qualify as a career offender “[r]eflected relatively old conduct.”

(Second Re-Sentencing Hearing Transcript “Tr.” at 4.) Defense counsel also emphasized that this

was “the first bank robbery I’ve had when the testimony says that my client escaped on a bicycle.”

(Tr. at 7.) Defendant said very little at sentencing, except to state that he was innocent. Counsel for

the United States indicated that the government was relying on its sentencing memorandum, but

further stated that the Defendant’s past crimes were violent and that he had committed three

qualifying crimes for career offender status, although only two violent crimes were needed to satisfy

this status. The government’s counsel also stated:

        although there wasn’t a weapon used, the bank teller did not know that. The bank
        teller felt threatened and frightened and was under a threat. A bank robbery is a very
        serious crime which is deserving of a very severe punishment.

(Id. at 5.)

        Before making his sentencing decision, the district court indicated its awareness of the

arguments made on behalf of Defendant at his two prior sentencing hearings. (Id. at 8.) The court

first addressed Defendant’s arguments that no weapon was used during the robbery and that no one

was injured stating that “[h]ad a weapon been brandished these [G]uidelines would very likely have

been higher. Had someone been injured these [G]uidelines would very likely been higher.” (Id.)


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The court also found the fact that a substantial portion of the robbery money had been recovered was

relevant only regarding the issue of restitution: “[t]here’s no indication that I know of that the money

was recovered by any, for example, change of heart that Mr. Thomas had experienced. . . . He didn’t

return the money. . .the money was recovered.” (Id.)

       The court then made it clear that, though the Guideline range had to be considered, it was not

mandatory. The district court also found that it was obligated to consider other factors to determine

“whether a sentence other than that calculated by the [G]uidelines may be sufficient but not greater

than necessary to serve the purposes of sentencing expressed by Congress.” (Id. at 10.) The court

then indicated that it was not persuaded by Defendant’s argument that the robbery was simple or

ineffectual because Defendant escaped on a bicycle. In the court’s view, the fact that Defendant

escaped on a bicycle did not diminish the fact that the face-to-face robbery of a bank was an

“inherently upsetting matter” for the person who was robbed. (Id.)

       The court did not find that Defendant’s age (fifty), his current incarceration at Terra Haute,

or his good health to be factors that persuaded it that Defendant should receive a sentence

substantially below the pertinent Guideline range. (Id. at 12.) Further, the court found that

Defendant’s career offender classification was not just properly calculated, but “fully appropriate,

given the persistence and consistency and dangerous characteristics of his record of robbing

assaultively places and more or less successfully making off with money, less successfully, of course,

in this case.” (Id. at 3.) The court noted that, of the three prior robberies that qualified Defendant

as a career offender, two of them involved weapons and at least one of them “involved

extraordinarily serious injury to the individual robbed.” (Id. at 11.)




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           The sentencing judge then explicitly tied his analysis to the 18 U.S.C. § 3553(a) factors,

stating:

           And I add that under the guidance of 3553(a) moving beyond the nature and
           circumstances of this offense, which are, essentially, middle of the road, the history
           and characteristics of the defendant, which are happily, from a health standpoint,
           good, but unhappily from a behavioral standpoint, horrible. I believe the need for a
           sentence to be imposed in this place should be substantial to reflect the seriousness
           of the kind of offense conduct engaged in here and to provide just punishment, but
           most especially to deter Mr. Thomas from this kind of behavior in the future, and
           relatedly, to protect the public from further crimes of Mr. Thomas.

(Id. at 14.)

           The court further stated that the imposition of a substantial sentence was required to deter

future criminal conduct, noting that Defendant demonstrated by his prior violent criminal behavior

over many years that he was dangerous and likely to commit crimes again whenever he is released.

He then sentenced Defendant to 240 months in the custody of the Bureau of Prisons, followed by a

five-year period of supervised release, after saying the court would likely have sentenced him to a

longer period, but for the statutory maximum of 240 months and the sentencing history established

by the prior judge. (Id. at 14-15.)

                                    II. STANDARD OF REVIEW

           As a result of the Supreme Court ruling in Booker, the Guidelines are now advisory, and

appellate review of sentencing decisions is limited to determining whether the sentence is

“reasonable.” United States v. Gall, 128 S. Ct. 586, 597 (2007). As the Court in Gall instructed,

appellate courts should first:

           ensure that the district court committed no significant procedural error, such as
           failing to calculate (or improperly calculating) the Guideline range, treating the
           Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a



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       sentence based on clearly erroneous facts, or failing to adequately explain the chosen
       sentence-including any deviation from the Guideline range.

Id. at 597. Assuming that a judge’s sentencing decision is procedurally sound, this court then

reviews whether the sentence is substantively reasonable under an abuse of discretion standard. Id.

at 589-590.

                                  III. LAW AND ANALYSIS

       Defendant argues that the district court’s sentence was both procedurally and substantively

unreasonable. Each of these arguments shall be addressed in turn.

                   A. Procedural Reasonableness of Defendant’s Sentence

       Section 3553(a) provides, in relevant part:

       The court shall impose a sentence sufficient, but not greater than necessary, to
       comply with the purposes set forth in paragraph (2) . . .

       [And] shall consider-
       (1) the nature and circumstances of the offense and the history and characteristics of
       the defendant;
       (2) the need for the sentence imposed –
                (A) to reflect the seriousness of the offense, to promote respect for the law,
                and to provide just punishment for the offense;
                (B) to afford adequate deterrence to criminal conduct;
                (C) to protect the public from further crimes of the defendant; and
                (D) to provide the defendant with needed educational or vocational training,
                medical care, or other correctional treatment in the most effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range established for -
                        (A) the applicable category of offense committed by the applicable
                        category of defendant as set forth in the guidelines;
                ...
       (6) the need to avoid unwarranted sentence disparities among defendants with similar
       records who have been found guilty of similar conduct. . . .

       It is clear that the judge properly calculated the Guideline range, acknowledging the

Guidelines were not mandatory and that he adequately explained his sentence, as discussed above


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in Section I. Defendant argues, however, that the court abused its discretion when it concluded that

“Defendant has exhibited an unremitting pattern of unusually violent and utterly reprehensible

behavior in violation of the laws of this state and this country.” He seems to argue, though he does

not do so explicitly, that the judge based his sentencing decision on clearly erroneous facts.

        This argument, however, is not well-taken as the court’s finding was not clearly erroneous.

Partially in response to counsel for Defendant’s argument that Defendant did not use a weapon in

the robbery and that he escaped on a bicycle, the district court stated that the face-to-face robbery

by the Defendant of the teller must have been highly upsetting to the teller. It also stated, “Defendant

has exhibited an unremitting pattern of unusually violent and reprehensible behavior. . .” Counsel

for Defendant argues on appeal that, “[w]hile Thomas has a number of state court convictions for

robbery, the only two that exhibited any significant violence beyond the usual were two committed

when Thomas was 18. They were committed over three decades ago. . .” However, the teller

involved in this case testified before the district court that the incident “scared the daylights out of”

her, causing her to change her career. Furthermore, the robbery was committed while Defendant was

on parole for a prior bank robbery involving violence. In light of these facts, we find no error in the

district court’s determinations that, notwithstanding the fact that Defendant did not use a weapon in

committing the instant offense, his conduct in this case was violent and that he had demonstrated a

pattern of unusually violent and reprehensible behavior. Accordingly, the court finds that the district

court’s sentence was not procedurally unreasonable.

                    B. Substantive Reasonableness of Defendant’s Sentence

        The Defendant also argues that his sentence was substantively unreasonable. In reviewing

the Guideline sentence imposed by the district court, we must determine whether the district court


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abused its discretion. Gall v. United States, 128 S.Ct. at 589-90. In doing so, we have chosen to

accord the sentence a “rebuttable presumption of reasonableness.” Rita v. United States, 551 U.S.

at 346; United States v. Vonner, 516 F.3d at 389-90. Defendant argues, however, that the sentence

was substantively unreasonable because the district court allowed a single factor under § 3553(a),

Defendant’s criminal history, to dominate its determination of an appropriate sentence in this case.

       While it is true that a sentence is substantively unreasonable where the district court “fails

to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent

fact” (United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006) (internal quotation marks omitted)),

the Sixth Circuit has never held that a district court must give equal weight to the factors under §

3553(a). Indeed, it has expressly rejected this position in United States v. Benson, 195 F. App’x 414,

417 (6th Cir. 2006), where the defendant advanced a similar argument to that in the instant case,

asserting that the district court “failed to accord equal, or for some factors, any weight to other

factors required for consideration pursuant to 18 U.S.C. § 3553(a).” Benson held that the Sixth

Circuit “is not tasked with demanding that the district judge consider each of the issues enumerated

in 3553(a) or engage in a ritualistic incantation of these statutory factors in order to surmount this

procedural hurdle.” Id. (citation omitted).

       Furthermore, the cases from other circuits cited by Defendant for the proposition that equal

weight must be given to the § 3553(a) factors are inapposite. In United States v. Carter, 530 F.3d

565, 578 (7th Cir. 2008), the case was remanded for re-sentencing in light of Booker, based on

concerns that the Guidelines may have been applied by the trial court in a mandatory fashion. The

other case cited by Defendant, United States v. Abu Ali, 528 F.3d 210, 265 (4th Cir. 2008), was

decided in a very different context from this case. There, the sentence imposed by the judge was a


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“major deviation” from the Guidelines, which was based in part on the § 3553(a) factor of the need

to avoid sentencing disparities. Unlike the sentence in this case, the sentence was not accorded a

“presumption of reasonableness.”

       Moreover, there are further indications from the record that the court based its sentence on

multiple grounds and did not give an unreasonable amount of weight to Defendant’s criminal history.

The court heard a number of arguments from Defendant as to why the court should grant a variance

from the Guidelines. He did so with the clear recognition that the Guideline range was not

mandatory. The court addressed each of them in turn, finding none of them to be persuasive. For

example, the court rejected Defendant’s argument that he should have received a lesser sentence

because the case involved circumstances where “there was no injury to the persons in the bank,

where all but ten dollars were recovered, and where Defendant escaped the scene, not in car but a

bicycle.” As discussed earlier herein, the court noted that had a weapon been used and/or someone

been injured, the Guidelines would have likely been higher. The court also found the fact that most

of the money was recovered to be relevant only to the issue of restitution, since there was no

evidence that Defendant was responsible for the money being recovered. Further, the court was not

persuaded that the robbery by Defendant was ineffectual because he escaped on a bicycle, inasmuch

as this did not diminish the impact on the victim of this face-to face robbery.

       The court’s answers to all of these arguments and the others raised by Defendant in the

context of addressing the factors under 18 U.S.C. § 3553(a) were clear and well-reasoned. Giving

the sentence herein the presumption to which it is entitled, we find that the district court did not

abuse its discretion. Thus, we affirm the sentence of 240 months imposed by the district court. The

United States concedes that a three-year term of supervised release should have been imposed


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instead of the five years that was imposed in this case. In light of this concession, we hereby

REVERSE the district court’s sentencing decision imposing a five-year period of supervised release

and remand the case back to the district court for re-sentencing in regard to the term of supervised

release.

                                        IV. CONCLUSION

        We hereby AFFIRM the district court’s sentence of 240 months’ incarceration. However,

we REVERSE the district court’s imposition of a five-year period of supervised release to be served

following Defendant’s incarceration and REMAND the case back to the district court for re-

sentencing in regard to this latter issue.




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