NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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