United States of America v. Tirrell Perry Thomas

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0186p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIRRELL PERRY THOMAS,
Defendant-Appellant.
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No. 18-1592
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:17-cr-00176-2—Paul Lewis Maloney, District Judge.
Decided and Filed: August 6, 2019
Before: McKEAGUE, KETHLEDGE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Ray Edward Richards, II, RICHARDS & ASSOCIATES, PLLC, Troy, Michigan,
for Appellant. Vito S. Solitro, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellee.
_________________
OPINION
_________________
MURPHY, Circuit Judge. This case spotlights the hazards for defendants when they do
not tell the truth to the probation officers who prepare their presentence reports for sentencing.
After pleading guilty to bank fraud, Tirrell Thomas needed only to accept responsibility for his
actions (and not obfuscate) to obtain a guidelines range between 46 and 57 months’
imprisonment. Yet Thomas lied about his involvement in the fraud to the probation officer
working on his presentence report. So, when calculating his guidelines range, the court rejected
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an acceptance-of-responsibility reduction and applied an obstruction-of-justice enhancement.
Thomas’s lies bumped up his guidelines range to between 70 and 87 months. Finding that range
still too low, the district court sentenced Thomas to 102 months. Seeing no procedural or
substantive error with this sentence, we affirm.
I.
As a courtesy to its customers, Bank of America advances them funds whenever they
deposit checks. The bank credits a check’s value to an account immediately without any delay
for the time it takes the check to clear. During this “float” period, the bank permits an
accountholder to withdraw the funds while the bank confirms the check’s validity.
Thomas turned this valuable service into a vehicle to defraud. He led the Michigan side
of a conspiracy to steal from Bank of America; his cousin, Earl Lee Cobb, led the Illinois side.
(We recently affirmed Cobb’s sentence. United States v. Cobb, 766 F. App’x 226, 227 (6th Cir.
2019).) The scheme operated as follows: In Michigan, Thomas or other “recruiters” would enlist
Bank of America customers as coconspirators. The recruiters would give the customers’
information (account numbers, debit card numbers, and PINs) to the Illinois conspirators. The
Illinois conspirators would steal corporate checks, alter the checks to list the customers as
payees, and deposit the checks into the customers’ accounts. Back in Michigan, Thomas and
others would promptly withdraw the funds before the bank uncovered that the checks were bad.
Thomas would then divvy up the funds among the conspirators. All told, he participated in fraud
causing bank losses of $214,286.03.
In 2017, the United States charged Thomas, Cobb, and 17 others in a 28-count
indictment. The first count charged all defendants with a conspiracy to commit bank fraud, in
violation of 18 U.S.C. §§ 1344(2) and 1349. The rest charged subgroups of defendants with
bank fraud for individual transactions, in violation of 18 U.S.C. §§ 2 and 1344(2). The
indictment listed Thomas on 25 counts, second only to Cobb. He ultimately pleaded guilty to the
conspiracy count and to one count of bank fraud.
If Thomas’s deception had ended with this fraud, his offense level and criminal history
would have generated a guidelines range between 46 and 57 months. But it did not end there.

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No. 18-1592 United States v. Thomas Page 3
His probation officer found that he lied during his presentence interview. Thomas denied
leading the Michigan cohort, denied recruiting others, and denied knowing of Cobb’s role.
(Cobb followed the same approach, falsely claiming that he had not spoken to Thomas about the
scheme. Cobb, 766 F. App’x at 228.) The probation officer thus recommended that the court
deny an offense-level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1 (2016).
After learning of the lies, the United States asked for an obstruction enhancement as well.
U.S.S.G. § 3C1.1. In support, it compiled evidence—including witness statements and cell-
phone records—showing that Thomas oversaw the Michigan recruiters and facilitated the
withdrawals. Thomas also regularly spoke with Cobb on days with fraudulent activity and
traveled to deliver money to Cobb at preplanned locations.
At sentencing, Thomas argued that he should receive the acceptance-of-responsibility
reduction (and avoid the obstruction enhancement) because any lies did not affect the guidelines
calculations and so were immaterial. The district court disagreed. It found that Thomas lied to
the probation officer about his knowledge of Cobb’s role and the extent of his recruiting. The
court thus applied the obstruction enhancement and declined the acceptance-of-responsibility
reduction, which produced a guidelines range between 70 and 87 months. It concluded that this
range was insufficient under the sentencing factors in 18 U.S.C. § 3553(a). The court thus
imposed an above-guidelines 102-month sentence.
II.
Thomas now challenges: (1) the obstruction enhancement; (2) the denial of the
acceptance-of-responsibility reduction; and (3) the upward variance from the guidelines range.
1. Obstruction. Thomas argues that the district court erred by applying the obstruction
enhancement in U.S.S.G. § 3C1.1. Before reaching the merits, we note that our court has sent
mixed messages on the standard of review for this guideline. All agree that an appellate court
reviews “legal conclusion[s],” including the interpretation of § 3C1.1, “without the slightest
deference.” U.S. Bank Nat’l Ass’n v. Village at Lakeridge, LLC, 138 S. Ct. 960, 965 (2018);
United States v. Cole, 359 F.3d 420, 425 (6th Cir. 2004). And all agree that it reviews
“historical” fact findings—“who did what, when or where, how or why”—for clear error.

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U.S. Bank, 138 S. Ct. at 966; Cole, 359 F.3d at 425. But how should it review the application of
the guideline to the facts—that is, the decision whether the historical facts rise to the level of
obstruction under § 3C1.1?
Our cases have not been a model of clarity. Some have reviewed de novo the application
of § 3C1.1 to the facts. United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018). These
cases reason that the issue qualifies as “a mixed question of fact and law,” which we have
traditionally answered without deference to the district court. United States v. Bazazpour, 690
F.3d 796, 805 (6th Cir. 2012); cf. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc).
Others have applied clear-error review. United States v. Jackson-Randolph, 282 F.3d 369, 390
(6th Cir. 2002). These cases rely on 18 U.S.C. § 3742(e) (which directs appellate courts to “give
due deference to the district court’s application of the guidelines to the facts”) and Buford v.
United States, 532 U.S. 59 (2001) (which holds that § 3742(e)’s deference rule applies to
guidelines that turn mostly on each case’s facts, id. at 64–66). Still other cases have incorporated
both standards, noting that courts should review de novo “whether facts constitute obstruction of
justice,” but also should “give due deference to the district court’s application of the guideline to
the facts.” United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (citations omitted).
This conflict in our cases has good company. A sampling of out-of-circuit cases shows
broad disagreement “as to whether a § 3C1.1 determination is to be reviewed as a question of
fact or as a question of law.” United States v. Claiborne, 676 F.3d 434, 440 n.1 (5th Cir. 2012)
(Prado, J., concurring). Some cases evaluate this issue for clear error. See, e.g., United States v.
McDonald, 804 F.3d 497, 504–05 (1st Cir. 2015); United States v. Arceo, 535 F.3d 679, 687 (7th
Cir. 2008); United States v. Water, 413 F.3d 812, 819 (8th Cir. 2005); United States v. Garro,
517 F.3d 1163, 1171 (9th Cir. 2008); United States v. McKeighan, 685 F.3d 956, 975 (10th Cir.
2012). Others (many from the same circuits) apply de novo review. See, e.g., United States v.
Trinidad-Acosta, 773 F.3d 298, 318 (1st Cir. 2014); United States v. Armenta, 883 F.3d 1005,
1009 (7th Cir. 2018); United States v. Chavez, 833 F.3d 887, 889 (8th Cir. 2016); United States
v. Castro-Ponce, 770 F.3d 819, 821–22 (9th Cir. 2014); United States v. Craig, 808 F.3d 1249,
1260 (10th Cir. 2015); United States v. Guevara, 894 F.3d 1301, 1311 (11th Cir. 2018).
And some cases have said that § 3742(e)’s “due deference” standard falls somewhere in between

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No. 18-1592 United States v. Thomas Page 5
de novo review and clear-error review. United States v. Henry, 557 F.3d 642, 645 (D.C. Cir.
2009).
For our part, we question whether these two standards can be reconciled. It is
“confusing[]” to say that our review should be “de novo but deferential[].” United States v.
Robinson, 813 F.3d 251, 263 (6th Cir. 2016). Some might call deferential de novo review an
oxymoron, “sort of like ‘green pastel redness.’” John Hart Ely, Democracy and Distrust
18 (1980). In another context, for example, the Supreme Court has held that “[w]hen de novo
review is compelled, no form of appellate deference is acceptable.” Salve Regina Coll. v.
Russell, 499 U.S. 225, 238 (1991). And, in this guidelines context, the Court has contrasted the
two standards by asking whether an appellate court should “review the trial court’s decision
deferentially or de novo.” Buford, 532 U.S. at 60. It did not answer “both.” It instead chose
deferential review because of a district court’s comparative advantage in resolving the issue
posed by the specific guideline in that case (concerning whether prior convictions were related).
Id. at 64–66.
Buford’s guideline-specific logic would suggest that courts should decide this standard-
of-review question (de novo or deferential?) guideline-by-guideline. In many respects, our court
does just that. We, for example, “accord due deference” to a conclusion that a firearm was “used
or possessed in connection with another felony” under U.S.S.G. § 2K2.1(b)(6)(B), United States
v. Shanklin, 924 F.3d 905, 919 (6th Cir. 2019), but review de novo a conclusion that a crime
involved “a substantial risk of harm to human life under U.S.S.G. § 2D1.1(b)(5)(B),” United
States v. Whited, 473 F.3d 296, 297 (6th Cir. 2007) (citation omitted). Yet a case-by-case
approach assumes that Buford remains good law. Complicating matters further, when the
Supreme Court started treating the guidelines as advisory, it severed the provision (§ 3742(e))
that contains the “due deference” text on which Buford relied. United States v. Booker, 543 U.S.
220, 245 (2005). Courts disagree over whether Booker excised this deference language.
Compare United States v. Lopez-Urbina, 434 F.3d 750, 763 n.1 (5th Cir. 2005), with Henry,
557 F.3d at 644–45. Our court continues to apply it. United States v. Simmerman, 850 F.3d 829,
832 (6th Cir. 2017). Indeed, it would be surprising for Booker to have eliminated this deference
rule, given that it sought to delegate more sentencing discretion to district courts. In all events,

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No. 18-1592 United States v. Thomas Page 6
the Supreme Court recently adopted context-specific logic like Buford’s to decide more generally
the standard of review that should apply to mixed questions of law and fact. U.S. Bank,
138 S. Ct. at 966–67.
In this case, then, the correct standard may turn on whether an appellate court or a district
court is “better position[ed],” Buford, 532 U.S. at 64, to decide whether the “historical” facts (as
found by the district court) show that a defendant’s actions meet § 3C1.1’s “legal test” (as found
by the appellate court). U.S. Bank, 138 S. Ct. at 965–66. Yet it is enough for us to flag tensions
in the caselaw and pose potential inquiries for future panels. Here, Thomas’s challenge fails
even under de novo review, so we leave resolution of the standard of review for another day.
Now to the merits. Section 3C1.1 tells district courts to increase the offense level if a
“defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing of the
instant offense of conviction,” so long as the defendant’s conduct “related to” the “offense of
conviction and any relevant conduct” or “a closely related offense.” U.S.S.G. § 3C1.1. This text
has clear elements. For starters, the “words ‘obstruct or impede’ are broad.” Marinello v. United
States, 138 S. Ct. 1101, 1106 (2018). “They can refer to anything that ‘block[s],’ ‘make[s]
difficult,’ or ‘hinder[s].’” Id. (quoting dictionaries); American Heritage Dictionary 905, 1249
(3d ed. 1992). And § 3C1.1 does not require successful obstruction; it covers “attempted”
obstruction too. Section 3C1.1’s direct object next shows the proceedings that must be
obstructed: “the administration of justice” for the “investigation,” “prosecution,” or “sentencing”
of the offense. The adverb “willfully” lastly provides the required scienter. Cf. Bryan v. United
States, 524 U.S. 184, 191 (1998).
Applying these elements to “sentencing,” we have held that a defendant who makes
materially false statements to the district court or a probation officer “for the purpose of
obtaining a lighter sentence” commits obstruction. United States v. Sweet, 630 F.3d 477, 484
(6th Cir. 2011) (citation omitted). This reading comports with the Commission’s view.
Its commentary—which helps interpret § 3C1.1, United States v. Havis, 927 F.3d 382, 386
(6th Cir. 2019) (en banc)—suggests that a defendant hinders the sentencing process if the
defendant “provid[es] materially false information to a probation officer in respect to a

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presentence . . . investigation for the court.” U.S.S.G. § 3C1.1 cmt. n.4(H). As this language
shows, when obstruction takes the form of a false statement, the statement must be “material”:
It must, “if believed,” “tend to influence or affect” a sentencing decision (such as the proper
prison term). Id. cmt. n.6; cf. Kungys v. United States, 485 U.S. 759, 772 (1988). If, by contrast,
the statement has no chance of influencing such a decision, it cannot be said to have hindered it.
See United States v. Jones, 159 F.3d 969, 981 (6th Cir. 1998).
Two contrasting examples show how § 3C1.1 works. We applied it to a defendant who
lied about how he obtained codes to embezzle funds because his lies “minimize[d] the
seriousness of his conduct” and could have affected his sentence. Sweet, 630 F.3d at 484. But
we did not apply it to a defendant who lied about having a valid insurance license because that
claim did not affect the sentencing process. United States v. Smith, 516 F. App’x 592, 599 (6th
Cir. 2013).
Turning to this case, the district court properly invoked § 3C1.1. The court found as a
fact that Thomas lied about his role in the conspiracy by falsely maintaining that he did not know
of Cobb’s actions and falsely describing his recruiting efforts. And his falsehoods were
intentional lies, not mistakes from faded memories. The lies, “if believed,” also would have
“tend[ed] to influence” sentencing. U.S.S.G. § 3C1.1. cmt. n.6. They actually affected
sentencing in one sense: The United States devoted time and resources to disprove them. And
they could have affected sentencing in another: The district court might have opted for a lower
sentence if it had believed Thomas. In short, Thomas’s “attempt to minimize the seriousness of
his conduct” hindered the sentencing process and could have affected the ultimate sentencing
decision. Sweet, 630 F.3d at 484.
In response, Thomas offers two reasons why the lies were immaterial. First, Thomas
says that any lies cannot be material because, even if believed, they would not have affected his
guidelines range. Yet even if false information would not alter the guidelines calculations, it still
could, if believed, “influence[] or affect[] the district court’s determination of [the] sentence
within the appropriate guideline range.” United States v. Wilson, 197 F.3d 782, 786 (6th Cir.
1999). It could also affect a decision about whether to vary from the advisory guidelines.

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No. 18-1592 United States v. Thomas Page 8
Here, for example, the district court varied upward partially because of Thomas’s leadership
role; if it had believed Thomas, it may not have done so.
Second, Thomas says that any lies cannot be material because he admitted his leadership
role in his guilty plea (before the lies) and at sentencing (after the lies). But the guilty plea did
not discuss the details that Thomas told the probation officer. And any later clarification at
sentencing came “after he was caught in a lie.” United States v. Romanini, 502 F. App’x 503,
512 (6th Cir. 2012). Thomas “did not attempt to correct his false statements until he learned of
the probation officer’s recommendations.” Cf. Cobb, 766 F. App’x at 230. By then, his lies had
already affected sentencing.
The materiality of Thomas’s statements distinguishes two cases on which he relies.
United States v. Yell, 18 F.3d 581 (8th Cir. 1994); United States v. DeFelippis, 950 F.2d 444 (7th
Cir. 1991). In DeFelippis, the defendant’s lie concerned a collateral matter (about his
employment history) that “could not have influenced his sentence, even if believed.” 950 F.2d at
447. Thomas’s lies, by contrast, concerned the crime itself. In Yell, the defendant lied to the
probation officer about the amount of drugs distributed, but later confessed to the lie on his own
initiative before it interfered with sentencing. 18 F.3d at 583. Thomas, by contrast, merely
attempted to explain away his statements after the United States had compiled contrary evidence.
2. Acceptance of Responsibility. Thomas next argues he should have received a
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. At the risk of trying the
reader’s patience, we note that our cases have also diverged on the standard of review for
§ 3E1.1. Some have said that “if the only issue presented is the propriety of applying the
reduction to the uncontested facts, the decision is reviewed de novo.” United States v. Denson,
728 F.3d 603, 614 (6th Cir. 2013) (citation omitted). Others have invoked the “deferential
standard adopted by Buford” to review this issue for clear error. United States v. Webb, 335 F.3d
534, 538 (6th Cir. 2003). Here too, the right inquiry might ask whether an appellate court or a
district court is better situated to decide if the undisputed facts prove that a defendant met the
legal test for acceptance. Buford, 532 U.S. at 64. On that score, the commentary notes that
“[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of

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No. 18-1592 United States v. Thomas Page 9
responsibility.” U.S.S.G. § 3E1.1 cmt. n.5. But we can leave this question for another day as
well. Thomas’s claim also fails even under de novo review.
Section 3E1.1 tells the district court to reduce the offense level “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). This
language’s ordinary meaning generally bars a defendant from obtaining the reduction if the
defendant lies about the nature of the offense. “To be ‘responsible’ is to ‘answer for one’s
conduct.’” United States v. Pipkin, 304 F. App’x 468, 470 (8th Cir. 2008) (quoting dictionary);
see American Heritage Dictionary 1537 (3d ed. 1992). And one does not answer for one’s
conduct by lying about it. As the commentary says, lies that justify § 3C1.1’s obstruction
enhancement “ordinarily indicate[] that the defendant has not accepted responsibility for his
criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4. Only in an “extraordinary” case may a defendant
receive both an offense-level increase for obstruction and an offense-level decrease for
acceptance of responsibility. Id.; United States v. Jeross, 521 F.3d 562, 581 (6th Cir. 2008).
The “extraordinary” case typically contains a common sequence: A defendant interferes
early on with the investigation (triggering the obstruction enhancement), but later confesses to
this obstruction and cooperates going forward (triggering the acceptance-of-responsibility
reduction). United States v. Gregory, 315 F.3d 637, 640–41 (6th Cir. 2003); United States v.
Williams, 176 F.3d 301, 311 (6th Cir. 1999). Many defendants, including Cobb, have tried—and
failed—to fit their conduct into this two-step order of events. See, e.g., Cobb, 766 F. App’x at
229; Romanini, 502 F. App’x at 511–12; Jeross, 521 F.3d at 582; Wilson, 197 F.3d at 786–87.
Thomas falls short too. His case resembles his cousin’s. His obstruction (like Cobb’s)
occurred late (not early), after he had pleaded guilty and while the sentencing process was in full
swing. Cobb, 766 F. App’x at 229–31. And he backtracked only after “the probation officer had
decided not to recommend a decrease for acceptance of responsibility.” Id. at 230. If anything,
Thomas’s case is easier than Cobbs’s. Cobb “admitted that he had lied,” but we still rejected the
reduction. Id. at 229. Thomas did no such thing.
Thomas counters that he “pleaded guilty in a timely fashion” and “fully acknowledged
responsibility for the extent of his involvement” in his objections to the presentence report, in his

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No. 18-1592 United States v. Thomas Page 10
sentencing memorandum, and at his sentencing hearing. Pleading guilty, however, does not
alone justify this reduction. U.S.S.G. § 3E1.1 cmt. n.3. And Thomas’s obstruction enhancement
shows that he did not “fully acknowledge” the extent of his involvement.
Thomas also cites commentary from the 2018 guidelines noting that an unsuccessful
“challenge” to a district court’s finding of the “relevant conduct” does not automatically show
that a defendant made a false denial that disqualifies the defendant from this reduction. U.S.S.G.
§ 3E1.1 cmt. n.1(A) (2018). But the 2016 guidelines, which apply to Thomas, lack this text.
U.S.S.G. § 3E1.1 cmt. n.1(A) (2016). Regardless, the 2018 commentary adds that “[a] defendant
who falsely denies . . . relevant conduct . . . has acted in a manner inconsistent with acceptance
of responsibility.” Id. Thomas did not just “challenge” relevant conduct; he “falsely denied” it.
3. Upward Variance. Thomas lastly challenges his 102-month sentence—which
exceeded the guidelines range (70 to 87 months) by 15 months—as substantively unreasonable.
This type of challenge asserts that a sentence is “too long” because the district court placed “too
much weight on some of the § 3553(a) factors and too little on others.” United States v. Parrish,
915 F.3d 1043, 1047 (6th Cir. 2019) (citation omitted). On the upside for Thomas, an above-
guidelines sentence erases any presumption of reasonableness. United States v. Robinson,
892 F.3d 209, 212 (6th Cir. 2018). On the downside for him, the sentence does not trigger a
presumption of unreasonableness. Id. He still must surmount a high bar to succeed on a
substantive-reasonableness challenge even to an upward variance. While we consider “the
extent of any variance” as a data point, we “give due deference to the district court’s decision
that the § 3553(a) factors” justify the variance. Gall v. United States, 552 U.S. 38, 51 (2007).
We may reverse only if we find that the court abused its significant discretion. United States v.
Lanning, 633 F.3d 469, 473–76 (6th Cir. 2011).
The many post-Gall cases in which we have rejected challenges to upward variances
concretely show the difficulty in proving this type of claim. To list a few: Robinson, 892 F.3d at
212–17 (40-month variance); United States v. Ushery, 785 F.3d 210, 223–24 (6th Cir. 2015) (17-
month variance); United States v. Wendlandt, 714 F.3d 388, 397–99 (6th Cir. 2013) (12-month
variance); United States v. Zobel, 696 F.3d 558, 569–72 (6th Cir. 2012) (15-month variance);
Lanning, 633 F.3d at 474–76 (18-month variance).

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Thomas’s claim suffers the same fate. Whether or not we would have chosen his
sentence, the district court’s 15-month variance did not abuse its discretion. It recognized that
the guidelines set the initial benchmark for a sentence that would be “sufficient, but not greater
than necessary” to achieve Congress’s sentencing goals. 18 U.S.C. § 3553(a). Yet the court
found a guidelines sentence inadequate because of the need to deter crime and protect the public.
Id. § 3553(a)(2)(B)–(C). Thomas had “started his involvement in this offense” (his third in the
district) “almost immediately after being released from supervision on his second federal
felony.” So Thomas was proceeding down the path of “life on the installment plan.” His lies
also continued his lackadaisical attitude toward “staying on the right side of the law.” In short,
the court supported its variance with rational reasons rooted in the § 3553(a) factors.
Thomas responds that the district court’s obstruction enhancement and its refusal to apply
the acceptance-of-responsibility reduction already set a range that exceeded the range (46 to 57
months) applicable to his “actual” fraud offense. His reliance on that shorter range treats his lies
as meaningless. And the additional upward variance (after the guidelines adjustments accounted
for his lies) rested on the “totality” of Thomas’s conduct, including that the lies were part of a
pattern of dishonesty. Gall, 552 U.S. at 51. The district court could find that this pattern
necessitated a longer sentence (as compared to the guidelines baseline).
Thomas also notes that some codefendants received much shorter sentences. True,
§ 3553(a)(6) directs courts “to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.” But that provision “is
concerned with national disparities among the many defendants with similar criminal
backgrounds convicted of similar criminal conduct,” not “disparities between” codefendants.
United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007). In any event, Thomas fails to show
that he was similarly situated to these codefendants—either in terms of their roles (Thomas had a
leading role) or in terms of their records (Thomas had a substantial record).
We affirm.

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