United States v. Tirrell 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, │

│

> No. 18-1592

v. │

│

│

TIRRELL PERRY THOMAS, │

Defendant-Appellant. │

┘

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

No. 18-1592 United States v. Thomas Page 2

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.

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.

No. 18-1592 United States v. Thomas Page 4

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

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,

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

No. 18-1592 United States v. Thomas Page 7

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.

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

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

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).

No. 18-1592 United States v. Thomas Page 11

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.