*

 The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0308p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH ROY THOMAS,

Defendant-Appellant.

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No. 06-1290

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 02-00229—Robert H. Cleland, District Judge.

Argued: July 18, 2007

Decided and Filed: August 10, 2007 

Before: MOORE and GILMAN, Circuit Judges; FORESTER, District Judge.*

_________________

COUNSEL

ARGUED: Gary W. Crim, Dayton, Ohio, for Appellant. Julie Ann Woods, ASSISTANT UNITED

STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Gary W. Crim,

Dayton, Ohio, for Appellant. Julie Ann Woods, Andrew Byerly Birge, ASSISTANT UNITED

STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined. FORESTER,

D. J. (pp. 6-7), delivered a separate dissenting opinion.

_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Kenneth Roy Thomas

(“Thomas”) was convicted by a jury on one count of bank robbery. After a prior appeal and remand

for resentencing, Thomas now appeals his sentence of 240 months in prison, five years of supervised

release, a $4,500 fine, and ten dollars in restitution. Thomas argues that his sentence is unreasonable

because the district court did not consider adequately the factors set forth in 18 U.S.C. § 3553(a).

Because the record does not make clear the district court’s consideration of the relevant § 3553(a)

1
No. 06-1290 United States v. Thomas Page 2

1

 Because the statutory maximum of 240 months in prison was less than the upper limit of the applicable

Guidelines range, the district court had the discretion to sentence Thomas only within the range of 210 to 240 months

in prison. See UNITED STATES SENTENCING GUIDELINE § 5G1.1(c)(1).

2

 Although Judge Cleland is a United States District Judge for the Eastern District of Michigan, Thomas’s

resentencing was assigned to him as a visiting judge for the Western District of Michigan.

factors and its reasoning for imposing the sentence that it did, we VACATE Thomas’s sentence and

REMAND the case for resentencing.

I. BACKGROUND

We have previously summarized the underlying facts in this case:

On September 23, 2002, a man entered a Bank One branch in Grand Rapids,

Michigan, approached a teller window, and demanded “your hundreds, your fifties,”

and a pack of tens. Tolanda Staten, the teller, testified that the robber ordered her to

either “[g]o talk to them,” or “[d]on’t talk to them,” but she was uncertain exactly

what he said. Staten was so distraught she forgot bank procedures and her manager’s

name, but she did give the robber a pack of tens with a dye pack in it. After the

robber fled, she shouted to the bank manager that she had been robbed and called the

police to give them a description of the robber.

United States v. Thomas, 116 F. App’x 727, 728-29 (6th Cir. 2004) (unpublished opinion). The

robber was soon apprehended and identified as Kenneth Roy Thomas. A federal jury found Thomas

guilty of one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Then-District Judge David

W. McKeague sentenced Thomas to the statutory maximum of 240 months in prison, within the

then-mandatory Guidelines range of 210 to 262 months in prison.1

We affirmed Thomas’s conviction on appeal. Thomas, 116 F. App’x 727. Although Thomas

did not raise any sentencing issues on appeal, he filed a petition for writ of certiorari in the Supreme

Court, and on January 24, 2005, the Supreme Court granted Thomas’s petition, vacated the

judgment, and remanded the case back to us for further consideration in light of United States v.

Booker, 543 U.S. 220 (2005). Thomas v. United States, 543 U.S. 1116 (2005). On April 1, 2005,

we remanded the case to the district court for resentencing in light of Booker. United States v.

Thomas, No. 03-1691 (6th Cir. Apr. 1, 2005) (unpublished order).

Judge McKeague meanwhile had become a judge on our court. On remand, Thomas’s case

was reassigned to District Judge Robert H. Cleland for resentencing.2 On November 14, 2005,

Thomas filed a sentencing memorandum discussing the relevant § 3553(a) factors. Among other

things, Thomas’s memorandum discussed the relatively nonviolent nature of Thomas’s crime;

argued that a sentence below the applicable Guidelines range would adequately reflect the

seriousness of the offense, provide just punishment, and avoid unwarranted sentencing disparities,

as defendants convicted of similar crimes generally received far shorter sentences; argued that a

sentence below the applicable Guidelines range would protect the public from any further crimes

by Thomas, given his age; and noted Thomas’s rehabilitative efforts. On February 2, 2006, the

district court held Thomas’s resentencing hearing. The district court noted that it “ha[d] received

[Thomas’s sentencing memorandum], read it and understand its presentations.” Joint Appendix

(“J.A.”) at 34 (2/2/06 Hr’g at 7). After addressing arguments relating to Thomas’s representation

and the geographic location of resentencing, the district court calculated the applicable Guidelines

range to be 210 to 262 months in prison, noted the statutory maximum of 240 months in prison, and

stated:
No. 06-1290 United States v. Thomas Page 3

It is quite clear to me that Judge McKeague had every ability to impose a

sentence less than 240 months. He recognized a range certainly of 210 to 240

months, and it is not entirely clear why, except for in the exercise of the utmost

restraint and caution, a case such as this would be remanded for reconsideration and

resentencing. Upon full reconsideration, it is my view that a sentence of 240 months

is appropriate. It is a sentencing fact that replicates the middle of the guideline range

correctly calculated here. It happens to coincide with the statutory maximum, but

that is, as far as I am concerned, essentially happenstance. I believe that a sentence

of 240 months, given the defendant’s background and behavior in this particular case

is a fair, adequate and reasonable sentence considering the advisory guideline range

that applies, and as well considering the additional factors contained within 18

[U.S.C.] Section 3553(a).

J.A. at 40-41 (2/2/06 Hr’g at 13-14). The district court also sentenced Thomas to five years of

supervised release, a $4,500 fine, and ten dollars in restitution. Thomas timely appealed.

II. ANALYSIS

Thomas argues that his sentence should be vacated because the district court’s sentencing

determination was procedurally unreasonable.

A. Standard of Review

We review a district court’s sentencing determination for reasonableness, Rita v. United

States, --- U.S. ---, 127 S. Ct. 2456, 2459 (2007); United States v. Webb, 403 F.3d 373, 383 (6th Cir.

2005), cert. denied, --- U.S. ---, 126 S. Ct. 1110 (2006), which, we have determined, “has both

substantive and procedural components,” United States v. Jones, --- F.3d ---, 2007 WL 1595540, at

*5 (6th Cir. June 5, 2007). The Supreme Court’s recent decision in Rita v. United States “reinforces

our conclusion that reasonableness review requires us to inquire into both ‘the length of the

sentence’ and ‘the factors evaluated and the procedures employed by the district court in reaching

its sentencing determination.’” United States v. Liou, --- F.3d ---, 2007 WL 2066854, at *4 (6th Cir.

July 20, 2007) (quoting Webb, 403 F.3d at 383). “Rita exhorts the sentencing judge to satisfy the

procedural requirement of ‘set[ting] forth enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.’” Id. (alteration in original) (quoting Rita,127 S. Ct. at 2468). Accordingly, “we review

the sentencing transcript to ensure (1) that the sentencing judge adequately considered the relevant

§ 3553(a) factors and clearly stated his reasons for imposing the chosen sentence, and (2) that the

sentence is substantively reasonable.” Id. at *5 (footnote omitted). Although “[t]he amount of

reasoning required varies according to context,” id. at *4, “we will vacate a sentence if the ‘context

and the record’ do not ‘make clear’ the court’s reasoning,” id. at *5 n.4 (quoting Rita, 127 S. Ct. at

2469).

The government agrees that we normally review a sentence for reasonableness, but argues

that we should review the district court’s sentencing determination in this case only for plain error

because Thomas did not object below to the district court’s statement of reasons. In United States

v. Bostic, 371 F.3d 865 (6th Cir. 2004), we set forth the following rule governing this issue:

[D]istrict courts, after pronouncing the defendant’s sentence but before adjourning

the sentencing hearing, [must] ask the parties whether they have any objections to

the sentence just pronounced that have not previously been raised. If the district

court fails to provide the parties with this opportunity, they will not have forfeited

their objections and thus will not be required to demonstrate plain error on appeal.

If a party does not clearly articulate any objection and the grounds upon which the
No. 06-1290 United States v. Thomas Page 4

3

 The dissent lists many of Thomas’s arguments and identifies a number of reasons why the district court might

have rejected them. This is exactly what the district court did not do, however, and it is not our role to supply reasons

for the district court’s sentencing determination where the district court itself supplied none. See Liou, 2007 WL

2066854, at *5 (“[I]t is for the district court to determine, in the first instance, what sentence is ‘sufficient, but not greater

than necessary’ to meet these interests [set forth in 18 U.S.C. § 3553(a)].” (quoting 18 U.S.C. § 3553(a))).

objection is based, when given this final opportunity [to] speak, then that party will

have forfeited its opportunity to make any objections not previously raised and thus

will face plain error review on appeal.

Id. at 872-73 (footnote omitted). We have since made clear that “[a] district court can satisfy the

requirements of the Bostic rule only by clearly asking for objections to the sentence that have not

been previously raised.” United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006). In this case, the

district court asked Thomas’s counsel, “Do you have anything further for the record, Mr. Canady?”

J.A. at 44-45 (2/2/06 Hr’g at 17-18). We have previously determined that a similar question by the

district court is not clear enough to satisfy the requirements of the Bostic rule. See Clark, 469 F.3d

at 570 (concluding that a district court did not satisfy the requirements of the Bostic rule by asking,

“Anything else, Ms. Goode?”). Accordingly, Thomas’s failure to raise his argument below does not

limit us to plain-error review.

B. Procedural Reasonableness

Thomas argues that the district court’s sentencing determination was procedurally

unreasonable because the district court did not adequately set forth reasons for imposing Thomas’s

sentence. We agree. The record makes clear that the district court considered the applicable

Guidelines range, but not much else. The district court generally noted “the defendant’s background

and behavior in this particular case,” J.A. at 41 (2/2/06 Hr’g at 14), but otherwise never mentioned

anything resembling the § 3553(a) factors, save a conclusory reference to “considering the additional

factors contained within 18 [U.S.C.] Section 3553(a),” id. As described above, Thomas in his

sentencing memorandum raised a number of arguments regarding application of the § 3553(a)

factors, but those arguments went unmentioned and unaddressed, save the general statement by the

district court that it had received, read, and understood the sentencing memorandum. In such

circumstances, we must conclude that “the ‘context and the record’ do not ‘make clear’ the court’s

reasoning,” Liou, 2007 WL 2066854, at *5 n.4 (quoting Rita, 127 S. Ct. at 2469), and, accordingly,

we must vacate Thomas’s sentence. See also id. at *5 (“[W]e review the sentencing transcript to

ensure . . . that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly

stated his reasons for imposing the chosen sentence . . . .”).

We recognize that the district court’s statement of reasons in this case bears some

resemblance to the statement of reasons sanctioned by the Supreme Court in Rita. In that case, the

district court, after listening to and repeating the defendant’s arguments, stated that it was “unable

to find” that the defendant should be sentenced below the applicable Guidelines range, mentioned

§ 3553 and the need to protect the public, and concluded that a sentence at the bottom of the

Guidelines range was “appropriate.” Rita, 127 S. Ct. at 2462, 2469. Importantly, though, the record

in Rita made clear that the district court considered and rejected the defendant’s arguments for a

lower sentence, as the district court summarized the defendant’s three arguments before rejecting

them and sentencing the defendant within the Guidelines range. Id. at 2461. In this case, the district

court’s only mention of Thomas’s numerous arguments for a lower sentence was the statement, “I

certainly have received [the sentencing memorandum], read it and understand its presentations.”

J.A. at 34 (2/2/06 Hr’g at 7). This conclusory statement leaves us unsure as to whether the district

court adequately considered and rejected Thomas’s arguments regarding proper application of the

§ 3553(a) factors or whether it misconstrued, ignored, or forgot Thomas’s arguments.3

 Because the

district court did not “set forth enough to satisfy the appellate court that he has considered the
No. 06-1290 United States v. Thomas Page 5

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority,”

Rita, 127 S. Ct. at 2468, Rita requires that we vacate Thomas’s sentence.

III. CONCLUSION

Because the record does not make clear the district court’s consideration of the relevant

§ 3553(a) factors and its reasoning for imposing the sentence that it did, we VACATE Thomas’s

sentence and REMAND the case for resentencing.
No. 06-1290 United States v. Thomas Page 6

_________________

DISSENT _________________

FORESTER, District Judge. Respectfully, I dissent from the majority opinion and would

affirm the sentence of Kenneth Roy Thomas.

Thomas was convicted by a jury of robbing a bank by intimidation on September 23, 2002.

His escape plan was thwarted, and he was apprehended several blocks from the bank with red dyepack ink on his hands. 116 Fed. Appx. 727, 729. At the time of this offense, Thomas was on parole

from two separate convictions for bank robbery. J.A. at 57. As a career criminal, his criminal

history category was VI. Id. The guideline range for his imprisonment was 210 to 262 months;

however, the statutory maximum was 240 months. The court acknowledged reading and

understanding the memorandum from counsel. It discussed counsel’s argument that the presentence

report should not include an enhancement for possession of a knife and agreed with that. J.A. at 29,

41. The court articulated its consideration of the presentence report and Thomas’ career offender

status, Thomas’ background and behavior in this particular case, the advisory nature of the Guideline

range, Thomas’ need for substance abuse treatment and mental health treatment, and Thomas’

inability to pay the fine imposed. Under the circumstances, the court found the 240-month sentence

to be “fair, adequate and reasonable.” J.A. at 41.

Thomas did not claim on appeal that his sentence was substantively unreasonable. He did

not argue below or on appeal any factual basis that would warrant a departure from the Guidelines.

He did not claim that the Guidelines failed to treat properly some characteristic of his, or that they

reflected unsound judgment in any manner. His sole criticism on appeal was that the district court

failed to articulate sufficiently its consideration of the § 3553(a) factors.

In United States v. Williams, 436 F.3d 706 (6th Cir. 2006), this court considered an

argument that a sentencing court failed to integrate properly the statutory factors during sentencing.

In rejecting Williams’ claim, this court said:

Williams identifies no factor from § 3553(a) that would render his sentence

unreasonable; instead he asks the court to conclude that the district court’s failure to

explicitly discuss each factor rendered his sentence unreasonable. “Although the

district court may not have mentioned all of the [§ 3553(a)] factors ... explicitly, and

although explicit mention of those factors may facilitate review, this court has never

required the ‘ritual incantation’ of the factors to affirm a sentence.”

Id. at 708-09, quoting United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005). See also United

States v. McGee, ___ F.3d ___, 2007 WL 1989017 at *6 (“Indeed, in most cases, if there is no

factual basis for a defendant’s argument, the district court need not specifically address the

argument”). 

Rita v. United States, 127 S.Ct. 2456 (2007), addressed the same argument made by Thomas

that there was an insufficient articulation of the court’s consideration of the § 3553(a) factors.

Rejecting that argument, the court said: “In our view, given the straightforward, conceptually simple

arguments before the judge, the judge’s statement of reasons here, though brief, was legally

sufficient.” Id. at 2468. Rita made it clear that when no legitimate argument is made for a

departure and the case appears typical of its type, little need be said.

Nonetheless, when a judge decides simply to apply the Guidelines to a particular

case, doing so will not necessarily require lengthy explanation. Circumstances may
No. 06-1290 United States v. Thomas Page 7

well make clear that the judge rests his decision upon the Commission’s own

reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a)

and other congressional mandates) in the typical case, and that the judge has found

that the case before him is typical. Unless a party contests the Guidelines sentence

generally under § 3553(a) – that is argues that the Guidelines reflect an unsound

judgment, or, for example, that they do not generally treat certain defendant

characteristics in the proper way – or argues for departure, the judge normally need

not say more.

Where the defendant or prosecutor presents nonfrivolous reasons for imposing a

different sentence, however, the judge will normally go further and explain why he

has rejected those arguments.

Id., citation omitted.

The majority seeks to distinguish Rita because the record “made clear that the district court

considered and rejected the defendant’s arguments for a lower sentence, as the district court

summarized the defendant’s three arguments before rejecting them and sentencing the defendant

within the Guidelines range.” Slip Opinion at 7. The critical distinction in Rita is that the defense

in that case presented the district court with three “nonfrivolous reasons for imposing a different

sentence,” including that Rita was a vulnerable defendant because of his prior government criminal

justice work, that he had military experience and that his physical condition was poor. Id. at 2461.

By contrast, the defense memorandum in the present case provided conclusory statements

regarding circumstances that are already encompassed by the Guidelines. For example, defense

counsel mentioned that no weapons were used or displayed and no one was injured. The base

offense level of 20 in this case presupposes a relatively nonviolent crime. Had there been violence

in the form of brandishing a dangerous weapon, threats, or injury, the offense level would have been

“enhanced.” U.S.S.G. § 2B3.1. Thus, relative nonviolence does not support imposing a different

sentence. United States v. Funk, 477 F.3d 421, 427 (6th Cir. 2007) (“It therefore defies logic to

reduce the defendant’s sentence because of the absence of this factor; the properly calculated

guidelines range has already taken into account its absence”). Similarly, the argument that

“defendants convicted of similar crimes generally received far shorter sentences” merely reflected

a disagreement with Congress’ substantial mandatory sentence for a career offender. Counsel

argued: “ If Mr. Thomas were not classified as a career offender, his range could be considerably

lower.” Presentence Brief, p. 5. The court could not consider that argument, however. Funk, 477

F.3d at 429 (“But the district court’s disagreement with congress as to what constitutes an

appropriate sentence for a repeat offender of the kind described by U.S.S.G. § 4B1.1 is a policy

matter, and not a permissible factor upon which to base a sentencing determination”). The

seriousness of the offense, just punishment, unwarranted sentencing disparities, and protection of

the public are all encompassed by the Guidelines. This sentence reflecting a proper application of

the Guidelines was entitled to a presumption of reasonableness on appeal. Rita, 127 S.Ct. at 2462.

“[W]here judge and Commission both determine that the Guidelines sentence is an appropriate

sentence for the case at hand, that sentence likely reflects the § 3553(a) factors (including its ‘not

greater than necessary’ requirement).” Id. at 2467.

In the present case, there is sufficient evidence that the district court heard and considered

the arguments made. The court even showed considerable patience with Thomas’ insistence that

some verbal order had unfairly constrained his counsel. J.A. at 34-40. As in Williams, “the district

court articulated its reasoning sufficiently to permit reasonable appellate review.” Williams, 436

F.3d at 709. Rita does not require more. Accordingly, I would affirm.