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.
Edward Richards, II, RICHARDS & ASSOCIATES, PLLC, Troy,
Michigan, for Appellant.
S. Solitro, UNITED STATES ATTORNEY'S OFFICE, Grand
Rapids, Michigan, for Appellee.
Before: McKEAGUE, KETHLEDGE, and MURPHY, Circuit Judges.
MURPHY, CIRCUIT JUDGE.
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 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.
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
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 Fed.Appx. 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.
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.
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. 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
Fed.Appx. 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).
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 cellphone 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
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 ...