FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOEL LEON THOMAS, JR.,

Defendant-Appellant.

No. 14-10427

D.C. No.

2:12-cr-00523-DGC-2

OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted April 15, 2016

San Francisco, California

Filed December 20, 2016

Before: J. Clifford Wallace, Mary M. Schroeder,

and Alex Kozinski, Circuit Judges.

Opinion by Judge Schroeder;

Dissent by Judge Kozinski
2 UNITED STATES V. THOMAS

SUMMARY*

Criminal Law

The panel affirmed a conviction and sentence for multiple

counts of conspiracy, armed bank robbery, and use of a

firearm during a crime of violence. 

The panel rejected the defendant’s contentions that there

was insufficient evidence to establish that each of the banks

was FDIC insured and that there was insufficient evidence to

show that the defendant knew of and planned for the use of

guns during the robberies. The panel held that the district

court did not abuse its discretion in admitting evidence of the

defendant’s gun ownership, and that there was no Fourth

Amendment violation in the seizure and search of the

defendant’s cell phone. The panel held that the district court

utilized Fed. R. Crim. P. 29(b) according to its terms in

delaying a ruling on the defendant’s motion for acquittal until

after the close of his case.

The panel held that while the district court had discretion

to impose a lower sentence on the robbery and conspiracy

counts, it was not required as a matter of law to reduce the

sentence to counter the effects of the consecutive 32-year

mandatory minimum sentence for the two use-of-firearm

convictions, and that the 49.5-year total sentence imposed

was therefore not substantively unreasonable. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. THOMAS 3

Dissenting in part, Judge Kozinski wrote that the district

judge mistakenly believed he was required to calculate the

Guidelines portion of the sentence as if it were a stand-alone

sentence, rather than as one component of a combined

sentence, which is a major procedural error that requires

reversal; and that the sentence is also substantively

unreasonable.

COUNSEL

Florence M. Bruemmer (argued), Law Office of Florence M.

Bruemmer PC, Anthem, Arizona; Anders V. Rosenquist,

Rosenquist & Associates, Anthem, Arizona; for DefendantAppellant.

Rachel C. Hernandez (argued), Assistant United States

Attorney; Krissa M. Lanham, Deputy Appellate Chief; John

S. Leonardo, United States Attorney; United States

Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.

OPINION

SCHROEDER, Circuit Judge:

Joel Thomas, Jr. appeals from the judgment following his

jury conviction and sentence for multiple counts of

conspiracy and armed bank robbery. He received a total

sentence of 49.5 years, and challenges both the conviction

and the reasonableness of the sentence.

His challenges to the conviction can be easily dealt with. 

The sentence raises more difficult issues. This is because 32
4 UNITED STATES V. THOMAS

years of the total 49.5 year sentence were required to be

imposed, consecutive to any other sentence, as a result of

statutory, mandatory minimums over which the district court

had no discretion. The remaining sentence of 17.5 years was

imposed at the low end of the Sentencing Guidelines range

pursuant to calculations that are not challenged. Those

calculations included enhancements for obstruction of justice

and the abduction of bank employees, as well as for

Thomas’s leadership role in all of the robberies. We affirm.

BACKGROUND

The novel twist in this case is that the defendant was a

bank teller whose string of robberies included the banks

where he worked and hence had inside information. From

October 2010 through March 2012, Thomas was employed as

a teller, first at a Wells Fargo Bank in Sun City, Arizona and

then at a Chase Bank in nearby Peoria, Arizona; he robbed

both banks.

In earlyAugust 2011, Thomas and a friend, BillyBrymer,

began planning the bank robberies. Thomas made the

robberies possible by providing inside information on the

banks, their security practices, floor plans, and degree of

customer usage during various parts of the day. Brymer had

no particular knowledge of banks or banking, but recruited

two homeless men, McQueen and Brown, as well as two men

from California, Bagley and Edwards, to assist in the actual

robberies. Thomas recruited a friend to serve as lookout

during one of the robberies in exchange for a car and money.

Thomas and Brymer planned at least two of the robberies

as armed robberies, and together purchased the weapons that
UNITED STATES V. THOMAS 5

were actually used. Thomas chose the banks that were

robbed.

The first armed robbery occurred on January 21, 2012, at

the Sun City Wells Fargo branch where Thomas had worked

earlier. Bagley and Edwards participated in the robbery,

according to Thomas’s plan. After entering the bank,

Edwards pointed a gun at a bank employee and demanded

access to the vault, acting on Thomas’s earlier instructions. 

When access to the vault was not possible because no

manager was available to open it, Edwards demanded money

from the tellers and came away with approximately $7,200.

The second robbery occurred on February 25, 2012, at a

Wells Fargo branch chosen byThomas. This robberywas not

armed. With Thomas’s help, Brymer wrote the demand note

that McQueen handed to the teller. After the robbery, the

robbers met with Brymer and Thomas and divided the money.

The third robbery, which was armed, occurred on

February 29, 2012, at the Chase Bank in Peoria where

Thomas was then working. It was part of Thomas’s

employment duties to signal to the bank manager that there

was no suspicious activity that might prevent the bank’s

opening. On the day of the robbery, as the manager, on

Thomas’s signal, opened the door, Brymer entered the bank,

pointed a gun at the manager, and demanded money. Thomas

stood by during the entry and handed Brymer the bag in

which to carry away the money. That robbery yielded

proceeds of more than $240,000.

Immediately after the robbery, police arrived at the bank

to investigate and assumed that both the manager and Thomas

were victims of the robbery. Thomas’s excessive use of his
6 UNITED STATES V. THOMAS

cell phone led police to suspect that Thomas might be

involved in the robbery. They asked him to turn over his

phone, and he did so. In interviewing Thomas, the police

became more suspicious because of his inability to answer

basic questions about the appearance of the robber. After

obtaining a search warrant for his home, car, and phone, the

police found in his bedroom a loaded Glock 9 mm semiautomatic handgun and ammunition. In Thomas’s car was

another semi-automatic handgun and notes with the work

schedule of bank employees, as well as a hand-drawn floor

plan of the Chase Bank. The search of the phone yielded text

message exchanges between Thomas and Brymer

immediately following the robbery when police were on the

scene, and also disclosed Thomas’s efforts to delete those

messages.

Thomas was arrested after the execution of the warrants. 

Thomas then spoke to agents and admitted his role in the

planning of the robberies and the purchase of weapons; his

statements became evidence used to impeach him during the

trial. The jury convicted him on three counts of conspiracy

to commit bank robbery, two counts of armed bank robbery,

one count of bank robbery, and two counts of use of a firearm

during a crime of violence under 18 U.S.C. § 924.

The two counts of use of a firearm during a crime of

violence resulted in mandatory minimum consecutive terms

amounting to 32 years. For the six underlying counts of

conspiracy and robbery, the district court sentenced him to

210 months, the low end of the Guidelines range.

The principal challenges to his conviction include the

sufficiency of the evidence to establish that the banks were

FDIC insured as required under 18 U.S.C. § 2113(a), and to
UNITED STATES V. THOMAS 7

establish his knowledge of the use of weapons in the

robberies. He also raises some evidentiary and procedural

objections. With respect to the sentence, Thomas’s only

contention is that it was unreasonable. See 18 U.S.C. § 3742.

DISCUSSION

I. The Conviction

We deal first with challenges to the conviction. Thomas

avers that there are two reasons why there was insufficient

evidence for a rational jury to convict him, but his arguments

are unavailing. On the bank robbery counts, Thomas asserts

that there was insufficient evidence to establish that each of

the banks was FDIC insured. See United States v. James,

987 F.2d 648, 650 (9th Cir. 1993) (requiring the government

to “prove that the money taken was from a bank insured by

the FDIC”). Bank employees with knowledge of the

insurance status testified as to each bank, however, and their

testimony was corroborated by each bank’s certificate of

insurance. As to the use of a firearm, Thomas claims, for the

first time on appeal, that his conviction for armed bank

robbery and use of a firearm during a crime of violence were

unsupported because there was insufficient evidence to show

that he knew of and planned for the use of guns during the

robberies. We need not address the argument at length as it

was never raised below, and is belied by the record of his

extensive involvement in acquiring the weapons and planning

for their use.

Thomas argues that the district court abused its discretion

in admitting evidence of Thomas’s gun ownership. Federal

Rule of Evidence 403 provides that relevant evidence may be

excluded if its probative value is substantially outweighed by
8 UNITED STATES V. THOMAS

the danger of unfair prejudice. Fed. R. Evid. 403. The

relevance of this evidence was high, and the risk of unfair

prejudice low. The two guns Brymer bought were the same

type of guns owned by the defendant, the defendant was with

Brymer when he bought them, and Brymer had no previous

knowledge of guns. The district court did not abuse its

discretion.

Thomas contends that he did not consent either to the

seizure or to the search of his cell phone. It appears,

however, that Thomas voluntarily handed over the phone. 

The police asked him to turn over his phone while he stood

unrestrained outside the Chase Bank. See United States v.

Reid, 226 F.3d 1020, 1026 (9th Cir. 2000). Further, the

police made the request without drawing any weapons. Id.

Even if the initial seizure of the phone had lacked consent,

there was no error because law enforcement obtained a search

warrant before searching the contents of the cell phone that

produced the evidence introduced at trial. See Segura v.

United States, 468 U.S. 796, 813–14 (1984). The Fourth

Amendment was not violated.

Thomas asserts that the district court erred in delaying a

ruling on his motion for acquittal until after the close of his

case. Federal Rule of Criminal Procedure 29(b) provides that

a district court “may reserve decision” on an acquittal motion

and “decide the motion either before the jury returns a verdict

of guilty or is discharged without having returned a verdict.” 

Fed. R. Crim. P. 29(b). Here, the district court utilized Rule

29(b) according to its terms.
UNITED STATES V. THOMAS 9

II. The Sentence

The only remaining issue is the reasonableness of

Thomas’s sentence under 18 U.S.C. § 3742, the statute

authorizing appellate review of sentences. Thomas argues

that his sentence was unreasonably high.

In imposing the 49.5 year sentence, the experienced

district judge was well aware of the impact of the mandatory

minimum sentences. Indeed, the district judge expressly said

that he believed that the total 32 year mandatory minimum

for use of a firearm in this case was excessive, but recognized

that he had no discretion with respect to its imposition. 

Thomas agrees. In imposing the sentence on the robbery and

conspiracy counts themselves, the district judge concluded

that the within-range 17.5 year sentence, under all the

circumstances, was not unreasonable. We agree, but Thomas

does not.

For a full understanding of the way in which the

mandatory minimums, Guidelines calculations, and

enhancements played out in this case, we go through the

calculations underlying the sentence in some detail.

A. The Two Statutory, Mandatory Minimum

Sentences For Use of a Firearm

Thomas’s crimes included two armed robberies. 

Congress has determined that a minimum term of 7 years

must be imposed for the use of a firearm in a crime of

violence. 18 U.S.C. § 924(c)(1)(A)(ii). In the case of a

second conviction for the use of a firearm in a crime of

violence, Congress has imposed a minimum sentence of 25

years. 18 U.S.C. § 924(c)(1)(C)(i). The parties in this case
10 UNITED STATES V. THOMAS

do not dispute that robbery is a crime of violence. 18 U.S.C.

§ 924(c)(3)(D). Because a firearm was used in the January 21

robbery, Thomas received a minimum sentence of 7 years. 

For the use of a firearm in the February 29 robbery, Thomas

received a minimum sentence of 25 years. The mandatory

minimum sentences are to be served consecutively, and are in

addition to the sentences for the underlying crimes. 

18 U.S.C. § 924(c)(1)(D)(ii) (“no term of imprisonment on a

person under this [statute] shall run concurrently with any

other term of imprisonment imposed on the person”).

B. The Sentences for the Six Underlying Robbery and

Conspiracy Counts

While the court had no discretion with respect to the

mandatoryminimums, see United States v. Valente, 961 F.2d

133, 134 (9th Cir. 1992), the district court had some

discretion in sentencing Thomas for the six underlying counts

of robbery and conspiracy. The Guidelines are advisory, see

United States v. Booker, 543 U.S. 220, 243–44 (2005), and

set forth sentencing ranges. The district court chose to

sentence Thomas at the low end of the applicable Guidelines

range.

The Guidelines calculation begins with an examination of

the defendant’s criminal history. See U.S.S.G. § 4A1. 

Thomas was assigned the lowest criminal history category

because of his limited criminal record. When he was 14, he

was arrested for putting his fist through a door. The records

for this offense have been purged. When Thomas was 18, he

was convicted of disturbing the peace, but it was a

misdemeanor. His criminal history category was I. See

U.S.S.G. §§ 4A1, 5A.
UNITED STATES V. THOMAS 11

The Guidelines call for related counts to be grouped

together. See U.S.S.G. § 3D1.2. In this case, the underlying

counts were put in groups representing each of the robberies. 

Group 1 included the conspiracy to commit bank robbery and

armed bank robbery of the Wells Fargo Bank in Sun City,

Arizona. Group 2 included the conspiracy to commit bank

robbery and bank robbery of the Wells Fargo Bank in

Surprise, Arizona. Group 3 included the conspiracy to

commit bank robbery and armed bank robbery of the Chase

Bank in Peoria, Arizona. According to the Guidelines, the

base offense level for each of these Groups was 20. U.S.S.G.

§ 2B3.1(a).

The Guidelines then call for consideration of the nature of

the crimes and the defendant’s role in them. See U.S.S.G.

§§ 2B3.1(b), 3B1.1. Because the property of a financial

institution was taken, two levels were added to all Groups. 

U.S.S.G. § 2B3.1(b)(1). Because Thomas was the organizer

or leader of a criminal activity that involved five or more

participants, four levels were added to all Groups. U.S.S.G.

§ 3B1.1(a). Because bank employees were abducted in their

commission, four levels were added to Groups 1 and 3, the

armed robberies. U.S.S.G. § 2B3.1(b)(4)(A). Because the

amount of loss was $246,952.92 (more than $95,000 and less

than $500,000) in the Chase Bank armed robbery, two levels

were added to Group 3. U.S.S.G. § 2B3.1(b)(7)(C).

The Guidelines sentence must be computed on the basis

of a single offense level, so the court had to determine an

adjusted offense level, taking into account the levels for all

relevant groups. U.S.S.G. § 3D1.4. In order to determine the

adjusted offense level, the court must identify the offense

level applicable to the most serious Group. See U.S.S.G.

§ 3D1.3. In this case, the Chase Bank robbery was the most
12 UNITED STATES V. THOMAS

serious because the greatest amount of money was taken. To

take into account the other Groups and the extent to which

they were comparable in seriousness to the Chase Bank

Group, various adjustments were made that are not disputed

here. This brought the combined adjusted offense level to 35. 

See U.S.S.G. § 3D1.4.

Given a total offense level of 35 for the six counts of

conspiracy to rob and robbery of the banks, and a criminal

history category of I, the Guidelines imprisonment range, as

calculated in the pre-sentence report, was 168 months to 210

months. U.S.S.G. § 5A. Its correctness is not disputed. The

district court then found that Thomas committed perjury

when he testified during his trial. The district court therefore

added a two point enhancement for obstruction of justice to

the combined adjusted offense level. U.S.S.G. § 3C1.1. This

is not challenged on appeal. The new offense level was thus

37.

On the basis of a total offense level of 37 and a criminal

history category of I, the Guidelines imprisonment range was

210 months to 262 months. The district court sentenced at

the low end, and Thomas received a total sentence of 210

months on the six underlying robbery and conspiracy counts.

At sentencing, defense counsel had asked for a reduction

below the Guidelines range on the underlying counts, but the

court responded that the low end of the Guidelines range in

this case was a reasonable sentence for convictions of

conspiracy to rob and robbery of three different banks, in all

of which Thomas played the major organizational role.

By statute, the sentence had to be imposed to run

consecutively to the statutory, mandatory minimums. See
UNITED STATES V. THOMAS 13

18 U.S.C. § 924(c)(1)(D)(ii). The mandatory minimums

totaled 32 years. This brought the total sentence to 49.5

years.

On appeal, although none of the calculations are

challenged, Thomas contends the resulting sentence was

substantively unreasonable. He argues that a 49.5 year

sentence is disproportionate to the crimes for which he was

convicted. We conclude that the district court did not err in

imposing the sentence it did.

In reaching this conclusion, we are mindful that the

district court had no discretion whatsoever to disregard the

impact of the statutory, mandatory minimums. See Valente,

961 F.2d at 134. Since the Guidelines are advisory, see

Booker, 543 U.S. at 243–44, the court’s only discretion lay in

the imposition of Guidelines sentences for the conspiracies

and robberies themselves. And here, it sentenced at the low

end of the Guidelines range.

The dissent argues, as Thomas did, that the district judge

misunderstood his discretion to sentence Thomas below the

Guidelines range for the conspiracy and robbery convictions. 

The record plainly belies this contention; the experienced and

distinguished district judge made clear his view that “210

months is the right sentence for three bank robberies and

three conspiracies to commit bank robberies.” While twice

acknowledging that the district court had the discretion to

lower that sentence “to sort of balance it all out” in light of

the mandatoryminimums, the judge explained that he did not

“feel comfortable” doing so.

The Supreme Court has told us that, in reviewing

sentences, we must determine first, whether there were any
14 UNITED STATES V. THOMAS

procedural errors made by the district court in its calculations,

or in its consideration of the appropriate factors pursuant to

18 U.S.C. § 3553(a), before we consider whether or not the

sentence is substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007). The parties agree that there

were no procedural errors or failure to consider appropriate

factors, so the only question is whether the sentence was

substantively reasonable.

The Supreme Court has further instructed that, in

reviewing whether a sentence is substantively reasonable, we

are to consider the totality of the circumstances. Id. The

Court cautioned that in doing that, courts must take into

account the degree of variance from the sentencing guidelines

in cases where a sentence is outside the applicable Guidelines

range. Id. at 47. Here, there was no variance from the

applicable range. This is an indicator that the sentence is

reasonable. See Rita v. United States, 551 U.S. 338, 347–51

(2007). Moreover, in reviewing Guidelines sentences for

reasonableness, our court has recognized that a withinGuidelines sentence will usually be reasonable. United States

v. Carty, 520 F.3d 984, 994 (9th Cir. 2008).

Congress requires the Guidelines sentence be imposed

consecutive to the mandatory minimums, 18 U.S.C.

§ 924(c)(1)(D)(ii), and Congress intended the Guidelines

sentence itself to reflect the empirical data underlying the

practice of judges in applying the § 3553 factors. See Rita,

551 U.S. at 347–51 (2007). Here, the mandatory minimums

represent enhancements or additions to the Guidelines

sentence because firearms were used. The minimums must

be served consecutively to the sentence for the underlying

crimes, and the underlying Guidelines sentence was

computed by taking into account the characteristics of those
UNITED STATES V. THOMAS 15

crimes. The district court, in turn, took into account the

factors it was required to consider pursuant to 18 U.S.C.

§ 3553. The Supreme Court has said it is permissible for

appellate courts to presume that a within-Guidelines sentence

is reasonable, see Rita, 551 U.S. at 347–51. Our court does

not employ such a presumption, but we recognize that we will

seldom reverse a within-Guidelines sentence if it is correctly

calculated. Carty, 520 F.3d at 994.

The troublesome issue in this case arises because the

mandatory minimums must be combined with the sentence

imposed on the underlying crimes, to create a very long

sentence. Yet this does not make the sentence unreasonable

within the meaning of 18 U.S.C. § 3742. We have expressly

so recognized. We have held that the district court must

impose a mandatory minimum sentence even if doing so

“makes it impossible for the judge to impose a total sentence

that the court considers reasonable.” United States v.

Washington, 462 F.3d 1124, 1140 (9th Cir. 2006). And to

require that a district court reduce a defendant’s Guidelines

sentence to counter the effects of mandatory minimums

would be contrary to congressional intent that the Guidelines

sentence reflect the objectives of 18 U.S.C. § 3553(a). See

Rita, 551 U.S. at 347–51.

The parties cite only one case in which the mandatory

minimum itself was so long that the district court reduced the

sentence for the underlying crime. See United States v. Dare,

425 F.3d 634 (9th Cir. 2005). There, however, the underlying

crime of possession of marijuana was not a serious offense. 

In Dare, the district court found the ten year mandatory

minimum sentence itself to be outrageous, but correctly

observed it had no discretion to change it. Id. at 637. The
16 UNITED STATES V. THOMAS

court imposed a sentence of zero for the underlying offense

and the sentence was not at issue in the appeal.

Here, in contrast, the underlying crimes are serious, and

no one suggests Thomas should go unpunished for them. 

Thomas plotted, organized and facilitated three robberies

involving weapons and threats of harm to many employees

and bank customers. We must respect both the district

court’s exercise of discretion in imposing the sentence on the

underlying crimes and the court’s lack of discretion in

imposing the mandatory minimums which are actually

responsible for the length of the sentence. While the district

court had the discretion to impose a lower sentence on the

robbery and conspiracy counts, it was not required as a matter

of law to reduce Thomas’s sentence to counter the effects of

the mandatory minimums. We must conclude that the

sentence imposed was therefore not substantively

unreasonable.

AFFIRMED.

KOZINSKI, Circuit Judge, dissenting in part:

Joel Leon Thomas, Jr., barely 24 years old when he was

sentenced, will be 73 when he gets out of prison. How did a

young man get half a century following a conviction for three

bank robberies—two of which he wasn’t present for and none

of which resulted in physical harm? The answer is as

troubling as it is simple: The district judge misunderstood the

scope of his discretion and therefore failed to impose a

sentence that is substantively reasonable.
UNITED STATES V. THOMAS 17

The record leaves no doubt that the district judge believed

he lacked discretion to reduce Thomas’s sentence. This is

what he said:

When all of these are added together, it is a

total sentence of 49 and a half years. My

opinion is that is too much. I wouldn’t impose

that sentence if I had the discretion. But I

don’t.

That is just plain wrong, as the majority holds: “[T]he district

court had the discretion to impose a lower sentence.” Maj.

Op. at 16. The majority reads the district judge’s statement

that he didn’t “feel comfortable” reducing the sentence as

contradicting his express statement that he lacks discretion. 

Maj. Op. at 13. But the two statements aren’t inconsistent: 

The district judge may have felt uncomfortable reducing

Thomas’s sentence because he believed he lacked discretion

to do so. The judge’s statements, taken together, show pretty

clearly that he misunderstood his authority, and “the

appropriate remedy is a remand to exercise [his] discretion.” 

United States v. Khoury, 62 F.3d 1138, 1141 (9th Cir. 1995).

The sentencing judge had no discretion to reduce the

mandatory minimums, but he did have discretion as to the

Guidelines portion of the sentence. United States v. Booker,

543 U.S. 220, 245 (2005). So this isn’t a case where

mandatory minimums made it “impossible for the judge to

impose a total sentence that the court considers reasonable.” 

Maj. Op. at 15 (quoting United States v. Washington,

462 F.3d 1124, 1140 (9th Cir. 2006)). The district judge

could have imposed a Guidelines sentence as low as zero

months in order to arrive at a substantively reasonable

aggregate sentence. See United States v. Dare, 425 F.3d 634,
18 UNITED STATES V. THOMAS

638, 643 (9th Cir. 2005) (affirming an aggregate sentence of

10 years where the district court imposed a zero-month

sentence for marijuana possession to minimize the impact of

an “outrageous” mandatory minimum).

Not only may a sentencing judge consider the impact of

mandatory minimums, he must do so to ensure that the

aggregate sentence imposed is substantively reasonable. The

district judge didn’t “feel comfortable reducing the

[Guidelines] sentence . . . to sort of balance it all out because

[he thought 17.5 years was] the right sentence for three bank

robberies and three conspiracies to commit bank robberies.” 

A 17.5 year sentence may be appropriate if the defendant

starts serving it today but inappropriate if he starts serving it

three decades from now. The judge must consider whether

imposing that sentence on someone who has just spent 32

years in prison would serve any of the goals of section

3553(a). Will it deter? Will it rehabilitate? Is it really the

lowest sentence that can achieve these purposes? You will

get the wrong answers to these questions if you treat the two

parts of the sentence—the mandatory minimum portion and

the Guidelines portion—as independent and unrelated. The

district judge mistakenly believed he was required to

calculate the Guidelines portion of the sentence as if it were

a stand-alone sentence, rather than as one component of a

combined sentence. There is, at the very least, a serious risk

that the district judge meant what he said: He imposed a 49.5

year sentence because he believed he had no discretion. This

is a major procedural error that requires reversal.

The sentence is also substantively unreasonable. “A

substantively reasonable sentence is one that is ‘sufficient,

but not greater than necessary’ to accomplish § 3553(a)(2)’s

sentencing goals.” United States v. Crowe, 563 F.3d 969, 977
UNITED STATES V. THOMAS 19

n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)). 

Thomas’s sentence “fails properly to reflect § 3553(a)

considerations.” United States v.Amezcua-Vasquez, 567 F.3d

1050, 1055 (9th Cir. 2009) (citing Rita v. United States,

551 U.S. 338, 351 (2007)). Consider “the nature and

circumstances of the offense”: Thomas was only present for

one of the three bank robberies. See 18 U.S.C. § 3553(a). 

Although this was an armed robbery, Thomas wasn’t the one

holding the gun. The other bank robberies—neither of which

Thomas was actually present for—resulted in stolen proceeds

that didn’t exactly break the bank: $1,678 and $7,191. And

none of the bank robberies resulted in physical harm to bank

employees or customers. Or consider “the history and

characteristics of the defendant”: Thomas’s only prior

conviction was a 2009 misdemeanor for loud noise. Id. The

district judge summed it up best: Thomas’s criminal history

is “very limited.” The “need to avoid unwarranted sentence

disparities among defendants with similar records who have

been found guilty of similar conduct” also weighs in

Thomas’s favor given that his co-defendants—all of whom

actively participated in the robberies to a greater extent than

Thomas—received lesser sentences. Id. Indeed, Thomas got

a dozen years more than Ahmed Ressam, who plotted to

“blow up LAX, [which] would have resulted in many deaths

and injuries, substantial property damage and enormous

disruption to the nation’s transportation system.” See United

States v. Ressam, 679 F.3d 1069, 1090 & Dist. Ct. Dkt. No.

458 (9th Cir. 2012) (en banc).

Thomas’s 49.5 year sentence is far “greater than

necessary” to accomplish section 3553(a)’s goals. I would

remand so that the district judge may exercise his discretion

and impose a substantively reasonable sentence.