United States v. Jonathon Thoman

NOT RECOMMENDED FOR PUBLICATION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
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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).
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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.
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