United States v. Jonathon Thoman

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 7, 2022
• Docket: 21-1479
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0066n.06

No. 21-1479

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Feb 07, 2022 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN JONATHON ANTHONY THOMAN, ) DISTRICT OF MICHIGAN ) Defendant-Appellant. ) )

BEFORE: McKEAGUE, BUSH, and READLER, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Jonathon Anthony Thoman pleaded guilty to being a

felon in possession of firearms and received a significant downward departure in his sentence after

his extensive cooperation with the government. He now argues that his sentence was procedurally

unreasonable. It was not, so we affirm.

Thoman, a felon, possessed three firearms, which law enforcement officers found when

executing a search warrant at his house. He pleaded guilty to being a felon in possession of

firearms in violation of 18 U.S.C. § 922(g)(1). In his plea agreement, he acknowledged that he

faced a statutory minimum of 180 months’ incarceration under the Armed Career Criminal Act.

Under 18 U.S.C. § 3553(e), a district court may impose a sentence below the statutory

minimum for “substantial assistance” provided to the government by a defendant; Section 5K1.1

of the U.S. Sentencing Guidelines sets out the factors to be considered for such a departure.

Thoman provided substantial assistance to law enforcement, so the government filed a motion

1 No. 21-1479, United States v. Thoman

recommending that the district court deviate from the statutory mandatory minimum and grant a

35-month downward departure in Thoman’s sentence. Thoman requested an even greater

departure, arguing that he “cooperated at his own peril and continues to do so.”

The district court granted the motion and went beyond the government’s recommendation

to grant Thoman a 48-month downward departure. That resulted in a total sentence of 132 months’

imprisonment. Neither Thoman nor the government objected to this sentence. Thoman was

ordered to surrender to the Bureau of Prisons in August 2021, which he did not do. He was a

fugitive for almost five months before his arrest in January 2022. In the meantime, he filed this

timely appeal.

A sentence may be procedurally unreasonable if “the district judge fails to ‘consider’ the

applicable Guidelines range . . . and instead simply selects what the judge deems an appropriate

sentence without such required consideration.” United States v. Webb, 403 F.3d 373, 383 (6th Cir.

2005) (citation omitted). We lack jurisdiction to consider a criminal defendant’s appeal as to the

extent of a district court’s downward departure. United States v. Jones, 417 F.3d 547, 550 (6th

Cir. 2005). But the method that the district court employs to calculate a downward departure is

reviewable. United States v. Stewart, 306 F.3d 295, 331 (6th Cir. 2002).

Thoman argues that his sentence was procedurally unreasonable because the district court

did not correctly apply the § 5K1.1 factors to determine its downward departure. Thoman did not

object to the proposed sentence below, so we review his claims for plain error. United States v.

Novales, 589 F.3d 310, 313 (6th Cir. 2009). Plain-error review requires that Thoman show

“(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected

the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner,

516 F.3d 382, 386 (6th Cir. 2008) (en banc) (cleaned up).

2 No. 21-1479, United States v. Thoman

In its motion, the government outlined the significance of Thoman’s assistance, the

truthfulness of the information he provided, and the nature and extent of his assistance, see USSG

§ 5K1.1(a)(1)–(3), which the district court noted was “quite helpful . . . in evaluating [Thoman’s]

cooperation here.” The district court scrutinized arguments from both sides and concluded that a

downward departure of 48 months was appropriate. It next considered the required § 3553(a)

factors and sentenced Thoman to 132 months’ imprisonment. In doing so, the district court

considered the relevant factors and departed even further downward than the government had

requested. And Thoman has shown no error in the district court’s application of the § 5K1.1

factors, let alone error that, if resolved, would result in a different sentence. See United States v.

Gabbard, 586 F.3d 1046, 1051 (6th Cir. 2009) (per curiam) (citing Vonner, 516 F.3d at 388).

Thoman appears to be trying to fit a square peg into a round hole by couching his ultimate

complaint that his sentence was still too long in the form of a claim that the district court did not

properly consider the necessary factors. But nothing in our caselaw requires the district court to

recite a “ritualistic incantation” of these factors. United States v. Washington, 147 F.3d 490, 491

(6th Cir. 1998) (quotation omitted). The district court reviewed the evidence submitted by both

parties and concluded that, against the background of the relevant factors, a downward departure

greater than that requested by the government was warranted. We affirm.