F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

J O E L L E O N T H O M

A S , J R ., Defendant-Appellant. No. 14-10427

D.C. No. 2:12-cr-00523-DGC-2

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na David G. Campbell, District J udg e, Presiding

Arg ued and Submitted April 15, 2016 San F rancisco, California

F iled December 20, 2016

B efore: J . Clifford W allace, Mary M. Schroeder, and Alex Koz inski, Circuit J udg e s.

Opinion by

J u dg e Schroeder; Dissent by

J udg e Koz inskiU N I T E D S T A T E S V

. T H O M A S 2

SUMMARY *

Crim inal Law

The panel affirmed a conviction a nd 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 o f the b a n ks

was F DI C insured and that there was insufficient evidence to show that the defendant knew of and p lanned for the u s e o f
g uns d uring the rob beries. The panel h eld that the district
court did not abuse its discretion in admitting evidence of the defendant’s g un ownership, and tha t there was n o F ourth Amendment violation in the seiz ure and search of the defendant’s cell phone. The panel held that the district court utiliz ed F ed. R. Crim. P. 29(b) according to its terms in delay ing a r uling on the defendant’s motion for acquittal until after the close of his case.

The p anel h eld that while the district court had discretion
to im p ose a lower sentence on the robbery and conspiracy counts, it was not requi r e d a s a matter of law to reduce the
sentence to counter the effects of the c o n secutive 32-y e ar mandatory minimum sentence f o r the two use-of-firearm convictions, a

nd that the 49.5-y ear t o t al sentence imposed was therefore not substantively unreasonable.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. T H O M A S 3

Dissenting in part, J udg e Koz inski wrote that the district j u d ge mistakenly b elieved he was required to calculate t h e Guidelines portion of the sentence as if it were a stand-alone

se n t e nce, rather than as one component of a combined sentence, which is a maj o r procedural error that requires reversal; a

nd that the sentence is also sub s t an t ively unreasonable.

COUNSEL

F lorence M. B ruemmer (arg ued), L aw Office of F lorence M. B ru e m m er PC, Anthem, Ariz ona; Anders V. Rosenquist, Rosenquist & Associates, Anthem

, Ariz ona; for D efendantAppellant.

Rachel C. H ernandez (arg u ed), A ssistant U nited States Attorney ; Krissa M. L anham, D eputy Appellate Chief; J ohn S. L eonardo, United States Attorney ; United S tates Attorney ’s Office, Phoenix

, Ariz ona; for Plaintif f-Appellee.

OP INION

SCHROEDER, Circuit J udg e:

J oel Thomas, J r. appeals from the judg ment following his jury conviction a

nd sentence for multiple c ounts o f

c o n s p iracy and armed bank robbery

. He r eceived a to t al
sentence of 49.5 y e ars, and challeng e s both the conviction and the reasonableness of the sentence.

His challeng es to the conviction can be easily d e alt with. The sentence raises more difficult issues. This is because 32U N I T E D S T A T E S V

. T H O M A S 4

y ears of the total 4 9

. 5 y e ar sentence were required to be i m p o s e d, c onsecutive to any o ther sentence, as a result o f statutory , mandatory minimums over which the district court had no discretion. The remaining sentence of 17.5 y ears was imposed at the low end o f the Sentencing Guidelines r ang e p ursuant to c alculations that are n ot challeng ed. Those calculations included enhancements for obstruction of justice and the abduction of bank employ e e s, as well a s for Thomas’s leadership role in all of the robberies. W e affirm.

BACK G ROUND

The novel twist in th is case is that the defendant was a bank teller w hose string o f robberies included the b anks where he w orked and h e n c e had inside information. F rom October 2 010 throug h March 2012, Thomas was employ ed a s

a teller, f irst at a W ells F arg o B ank in Sun City

, Ariz ona a nd then at a Chase B ank in nearby Peoria

, Ariz ona; he robbed both banks.

I n early Aug u st 2011, Thomas a nd a f riend, B illy B ry

mer, beg an p lann i ng the bank robberies. Thomas made the robberies possible by providing inside inf o r mation on the banks, their security pract i ces, floor plans, and deg r ee o f
customer usag e d

uring various parts of the day

. B ry mer h ad

no particular knowledg e of b anks o r b anking

, but recruited
two homeless men, McQueen and B rown, as well as two men fr o m California, B ag ley and Edwards, to assist in the actual robberies. Thomas recruited a friend to serve as lookout during one o f the robberies in ex chang e for a car and money

.

Thomas and B ry

mer planned a t least two of the robberies

as armed robberies, and tog ether purchased the weapons thatU N I T E D S T A T E S V

. T H O M A S 5

w e r e actually used. Thomas chose the banks that w e r e robbed.

The first armed robbery occurred o n J anuary 21, 2012, at the Sun City W ells F arg o branch where Thomas had worked earlier. B ag ley and Edwa r d s participated in the r obbery

, a c c o r ding to Thomas’s plan. A fter entering the b ank

, Edwards p o inted a g un at a b a n k employ ee and demanded

ac c e s s to the vault, acting on Thomas’s earlier instructions. W h en a ccess to t h e vault was not possible because no manag er was available to o p en it, E dwards demanded money from the tellers and came away with approx imately

$7,200.

The second ro b b er y occurred on F ebruary 25, 2012, at a W e lls F arg o branch chosen by Thomas. This robbery was not armed. W ith Thomas’s h elp, B ry mer wrote the demand n ote that McQueen handed to the teller. After t he robbery

, the robbers met w ith B ry

mer and Thomas and divided the money

.

The third robbery

, w h i ch was armed, occurred on F ebruary 29, 2012, at the Chase Ba nk in Peoria where Thomas w a s t h en working

. I t w as part of Thomas’s employ ment duties to sig nal to the b ank manag er that there

was no suspicious a ctivity that mig ht prevent the bank ’s opening

. On the d a y o f t he robbery

, as the manag er, on Thomas’s sig nal, opened the door, B ry mer e ntered the b ank, pointed a g un at the manag er, and demanded money

. T h omas st o o d b y during the entry a nd handed B ry

mer the bag in which to carry aw a y t h e money

. T h at robbery y ielded proceeds of more than $240,000.

I mmediately

after the robbery , police arrived at the bank
to investig ate and assumed that both the manag er a nd T h omas

w e re victims of the robbery

. Thomas’s ex cessive use of h i sU N I T E D S T A T E S V

. T H O M A S 6

c e l l phone led police to suspect that Thomas mig ht b e involved in the robbe r y

. They asked him to turn over his phone, a nd he did so. I n interviewing Thomas, the police became more suspicious b e c ause of his inability to answer basic questions about the appearance of the r obber. A fter obtaining a search w arrant for his home, car, and phone, the police found in his b edroom a loaded Glock 9 mm semi

automatic handg un and am m u nition. I n Thomas’s c ar was another semi-automatic handg un a nd n otes with the work schedule o f bank employ ees, a s well as a hand-drawn floor plan of the Chase B ank. T h e search of the phone y ielded tex t

m e s s a ge e x c h a n g e s b e t w e e n T h o m a s a n d Br y m e r immediately f

ollowing the robbery w hen police were on the
scene, and also disclosed Thomas’s efforts to delete those
messag es.

Thomas was arrested after the ex ecution of the warrants. Thomas then spoke to ag e n ts and admi t t e d h is role in the planning o f the robberies and the purch a s e o f weapons; his
statements became evidence used to impeach him during the trial. The jury convicted h im on thr e e c ounts of conspiracy to commit bank robbery , two c ounts of a rmed bank robbery

, one count of bank r obbery

, and two counts of use of a firearm during a crime of violence under 18 U.S.C. § 924.

The two counts o f use of a f irearm d u r i n g a crime o f violenc e re sulted in mandatory minimum consecutive terms amounting t o 32 y ears. F or the six underly ing counts o f conspiracy a n d r o b bery

, the district court sentenced him to 210 months, the low end of the Guidelines rang e.

The principal challeng es to his conviction include the sufficiency o f the evidence to establ i s h that the banks were F DI C insured as required under 18 U .S.C. § 2113(a), and toU N I T E D S T A T E S V

. T H O M A S 7

establish his knowled ge of the use of weapons in the robberies. He also r aises some e videntiary and procedur al objections. With respect to the sentence, Thomas’s only contention is that it was unreasonable. See 18 U.S.C. § 3742.

D ISCUSSION

I. The Conviction

W e deal first with challeng es to the c onviction. T h omas

avers t h a t there are two reasons why there was insufficient evidence for a rational jury to convict h im, but his arg uments

are unavailing

. On the bank robbery counts, Thomas asserts that there was insufficient evidence to establ ish that each o f the banks was F DI C insured. S ee United States v. James
, 987 F .2d 648, 650 (9th Cir. 1993) (requiring the g overnment to “prove that the money taken was f r o m a b ank insured b y the F DI C”). B ank employ ees with kno wledg e of the insurance status testified as to each b ank, however, and their testimony was corroborated by each bank’s c e rtificate o f insurance. As to the use of a firearm, Thomas claims, for the first time on appeal, that h is conviction f or ar m e d bank robbery and use o f a f

irearm during a crime of violence were unsupported because there was insufficient evidence to show that he knew of and planned f or t h e use of g u ns during the robberies. W e n e ed n ot address the arg ument at leng th as it

was never raised below, and is b e l ied by the record of his

ex tensive invol vement in acquiring the weapons a nd planning for their use.

Thomas arg ues that the district court abused its discretion in admitting evidence o f Thomas’s g un ownership. Fe d e ral Rule of Evidence 403 provides that r elevant evidence may be

ex c luded if its probative value is substantially outweig h ed b yU N I T E D S T A T E S V

. T H O M A S 8

the dang er of unfair prejudice. F ed. R. E v i d

. 4 03. The relevance of this evidence was high

, and the risk of unfair prejudice low. The two g uns B ry mer boug ht were t he same ty pe of g uns owned by the defendant, the defendant was with B ry m er when he boug h t them, and B ry mer h ad no previous knowledg e o f g u n s. The district court did not abuse its discretion.

Thomas contends t h a t h e did not c onsent either to the seiz ure or t o t h e search of his cell phone. I t appears, ho wever, that Thomas voluntarily handed o ver the phone. The police asked him to turn o ver his phone while he stood unrestrained outside the Chase B a n k

. See Uni t ed States v

. Reid

, 226 F .3d 1020, 102 6 ( 9 th Cir. 2 000). F urther, the police made the request w ithout dr a w i n g any weapons. Id. Ev e n if the initial seiz ure of the phone had lacked consent, there w as no error b e c ause law enforcement obtained a search
warrant before searching the c ontents of the cell ph o ne that produced the evidence introduced at trial. See Segura v

. United States
, 468 U.S. 796, 813–14 (1984). Th e Fo u r th Amendment was not violated.

Thomas asserts that the d istrict co u rt e r red in delay ing a ruling on his motion for acquittal until after the close of his

case. F ederal 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 g uilty or is discharg ed without having returned a v erdict.” F ed. R. Crim. P. 29(b). Here, the district court utiliz e d Rule 29(b) according

to its terms.U N I T E D S T A T E S V

. T H O M A S 9

II. The Sentence

The only remaining issue i s t h e reasonableness o f Thomas’s sentence under 18 U.S.C. § 3742, the statute authoriz ing a

ppellate re v i e w of sentences. Thomas arg ues that his sentence was unreasonably hig h.

I n imposing the 49.5 y ear sentenc e , the e x p erienced district judg e w as well aware of the impact of the mandatory minimum sentences. I ndeed, the district judg e ex pressly said that he believed that the tota l 3 2 y ear mandatory minimum for use of a firearm in this case w as ex c essive, but recog niz ed that he h ad n o discretion with r e s p e ct to its imposition. Thomas ag rees. I n imposing the sentence on the robbery a nd conspiracy counts themselves, the d istrict judg e concluded that the within-rang e 1 7.5 y e a r sentence, under all the circumstances, was not unreasonable. We ag ree, but T h omas does not.

F or a f ull understanding of the way in whi c h the

m a n d a t o r y min i m u m s , G u i d e l i n e s c a l c u l a t i o n s , a n d enhancements play ed out in this case, we g o throug h the calculations underly

ing the sentence in some detail.

A. The Tw o Statutory, M a ndatory Minim um Sentences F or Use of a F irearm

Th omas’s crimes included two armed robberies. Cong r ess h a s d etermined that a minimum term of 7 y ears must be imposed f

o r t h e use o f a firearm in a crime o f violence. 18 U.S.C. § 924( c ) ( 1)(A)(ii). I n the case of a second c onviction for t h e u se o f a f irearm in a crime o f vi o lence, Cong ress has imposed a minimum sentence of 25
y ears. 18 U .S.C. § 924(c)(1)(C)(i). The parties in t h i s caseU N I T E D S T A T E S V

. T H O M A S 10

do not dispute that robbery is a crime of violence. 18 U .S.C. § 924(c)(3)(D). B ecause a f irearm was used in the J anuary 21 robbery

, Thomas r e c eived a minimum sentence of 7 y ears. F or the use of a firearm in the F e bruary 29 robbery

, T h omas received a minimum sentence o f 25 y e ars. The mandatory minimum sentences a

re 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 t h is [ statute] shall r un c o ncurrently with any other term of imprisonment imposed on the person”).

B. The Sentences f

or the Six U nderlyi ng Robbery a nd Conspiracy Counts

W h ile the court ha d no discretion with respect to the mandatory minimums, see United States v. Valente

, 961 F .2d 133, 134 (9th Cir. 1992), the distri c t court had some discretion in sentencing Thomas for the six u nderly ing c ounts of robbery and conspiracy

. The Guidelines are advisory

, see United States v. Booker

, 543 U.S. 220, 2 4 3

– 4 4 (2005), a nd
set forth sentencing rang es. The distri ct court chose to sentence Thomas a t the low end of the applicable Guidelines
rang e

.

The Guidelines calculation beg ins with an e x amination o f the d efendant’s criminal history

. See U.S

. S

. G

. § 4A1. Thomas w a s assig n ed the lowest criminal history categ ory because of his limited c riminal record. W hen he was 14, he was arrested for putting his fist throug h a door. The records for this offense have b een purg ed. W hen Thomas was 18, he

was c onvicted of disturbin g the p eace, but it was a

m i s demeanor. His criminal history categ o ry was I

. S e e U.S.S.G. §§ 4A1, 5A.U N I T E D S T A T E S V

. T H O M A S 11

The Guidelines call f

o r related c ounts to be g rouped tog ether. See U.S.S.G. § 3D1.2. I n this case, the underly ing
counts were put in g roups representing each of the robberies. Group 1 included the conspiracy to commit bank robbery a nd armed bank robbery of the W ells F arg o B ank in Sun City

, A r i z o na. Group 2 included the conspiracy to commit b a nk robbery and bank r o b b e r y of the W ells F arg o B ank in Surprise, Ariz ona. Grou p 3 included the conspiracy to commit bank robbery and armed bank robbery of t h e C h a se B ank in Peoria, Ariz ona. According to the Guide l i n e s , the base offense level for each of these G roups was 20. U.S.S.G. § 2B 3.1(a).

The Guidelines then call for c onsideration of the nature o f the c rimes and the defendant’s role in them

. S e e U

. S.S.G. §§ 2B 3.1(b), 3B 1.1. B ecause t he property of a financial institution was taken, two levels were added to a l l G r oups. U.S.S.G. § 2 B 3 .1(b)(1). B e c ause T h omas was the org aniz er

or leader of a criminal a c tivity that invo l v e d five or more participants, four levels were added to all Groups. U.S.S.G. § 3B 1 .1(a). B ecause bank employ ees were abducted in their commission, four levels were added to Gro u p s 1 a nd 3, the armed robberies. U.S.S.G. § 2B 3 .1(b)(4)(A )

. B ecause the
amount of loss was $246,952.92 (more than $95,000 and less than $500,000) in the Chase B ank armed robbery

, two levels were added to Group 3. U.S.S.G. § 2B 3.1(b)(7)(C).

The Guidelines sentence must b e c o mputed on the basis of a sing le o ff

e n s e level, so the court had to determine an adjusted offense level, ta k i n g i n to account the levels for all relevant g roups. U.S.S.G. § 3D1.4. I n order to determine the adj u s t e d offense level, the court must identify the offense level applicable to the most serious Group. See U.S

. S.G. § 3D1.3. I n this case, the Chase B ank robbery was the mostU N I T E D S T A T E S V

. T H O M A S 12

serious b ecause the g reatest amount of money was taken. T o t a ke into account the other Groups and the ex tent to whi c h they w ere compar able in seriousness to the Chase B a nk Group, various adjustments were made that are not disputed here. This broug ht the c o mbined adjusted offense level to 35. See U.S.S.G. § 3D1.4.

Given a total o ffense level of 35 for the s i x co unts o f conspiracy to rob and robbery of the banks, and a cr i minal history categ ory of I
, the Guidelines imprisonment rang e, a s calculated in the pre-sentence report, was 168 months to 210 months. U.S.S.G. § 5 A. I ts c orrectness is not disputed. The district cou r t t hen found that Thomas committed perjury when he testified during his trial. The district court therefore added a two point enhancement for obstruction of justi c e t o the combined adjusted offense level. U.S.S.G. § 3C1.1. This is not challeng ed on a

ppeal. The new offense level w as thus 37.

On the basis of a total o ffense level of 37 and a criminal history categ ory of I
, the G uidelines imprisonment rang e was 210 months to 262 months. The d istr i c t court sentenced at t h e low e nd, and T homas received a total sentence o f 2 1 0 months on the six underly ing robbery and conspiracy counts.

At sentencing

, defense counsel had asked f or a reduction below the Guidelines r ang e on the underly ing counts, but the
court responded t hat the low end of the Guidelines rang e in this case was a reasonable sentence for convictions o f conspiracy

to rob and robbery of three different banks, in all of which Thomas play ed the major org aniz ational role.

By s tatute, the sentence had to be imposed to r u n consecutively to the statutory , mandatory minimums. SeeU N I T E D S T A T E S V

. T H O M A S 13

1 8 U.S.C. § 924(c)(1)(D)(ii). The mandatory minimu m s totaled 32 y ears. This broug ht the total sentence to 49

. 5
y ears.

On appeal, althoug h n one of the calculations a re challeng ed

, T h omas contends the resulting sentence was substantively unreasonable. He arg ue s t hat a 49.5 y e ar sentence is disp ro p o rt i onate to the crimes for which he was convicted. W e conclude that t h e district court did not err in imposing the sentence it did.

I n reaching this c onclusion, we are mi n d f u l that the district court h a d n o d iscretion w hatsoever to disreg ard the impact o f the statutory , mandatory minimums. S

e e Valente

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

, see Booker

, 543 U.S. at 2 4 3–44, the court’s only discretion lay in the imposition of G uidelines sentences for the co n spiracies and robberies themselves. And here, it sentenced at the low end of the Guidelines rang e

.

The dissent arg ues, as Thomas did, that the district judg e misunderstood his discretion to sentence T homas below the Guidelines r ang e for the conspiracy a n d robbery convictions. The record plainly belies this contention; the ex perienced a nd disting uished district judg e made clear his view that “210 months is the rig ht sentence f or three bank r obberies a nd three conspiracies to commit b ank robberies.” W hile twice acknowledg ing t h a t the district court had the discretion to lower that sentence “ to sor t of balance it all out” in lig ht o f the mandatory minimums, the judg e ex plained that he did not “feel comfortable” doing

so.

T h e Supreme Court has told us that, in reviewing sentences, we must deter m i ne f irst, whether there were anyU N I T E D S T A T E S V

. T H O M A S 14

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 t h e sentence is substantive l y r easonable. See G all v. United States
, 5 52 U .S. 38, 51 ( 2 007). The parties ag ree that there

were n o procedural errors or failure to consider app r o p riate factors, so the only quest i on is whether the sentence was substantively

reasonable.

T h e Supreme Court has further instructed that, i n reviewing whether a sentence is substantively reasonable, we

are to consider the to t a l i t y o f the circumstances. Id. The Court cautioned that in doing th at , c ourts must take into
account the deg ree of variance from the sentencing g uidelines in c a ses where a sentence is outside the applicable Guidelines
rang e

. Id. a t 47. Here, ther e w a s n o variance f rom the

a p p l i c able rang e. This is an indicator that the sentence i s reasonable. See R ita v. United States
, 551 U.S. 338, 347–51 (2007). Moreover, in reviewing Guideli n e s sentences for reasonableness, our court h as recog niz ed that a withinGuidelines sentence will usually be reasonable. United States v. Carty , 520 F .3d 984, 994 (9th Cir. 2008).

Cong r ess requi r e s the Guidelines sentence be imposed consecutive to the mandatory minimums, 18 U .S.C. § 9 2 4 ( c )(1)(D)(ii), and Cong ress intended the Guidelines
sentenc e i t self to reflect the empirical data underly ing the practice of judg es in apply ing the § 3553 factors. S ee Rita
, 551 U.S. at 347–51 (2007). Here, the mandatory minimums represent enhancements o r additions to the Guid e l ines
sentence because firearms were used. T he minim u m s m ust be served consecutively to the sentence for the underly ing crimes, and the underly ing Guidelines sentence w a s computed b y taking into account the c haracteristics of thoseU N I T E D S T A T E S V

. T H O M A S 15

crimes. T he district court, in turn, t o o k into account the factors it was required to c onsider p ursuant to 18 U .S.C. § 3553. The Supreme C o u r t h a s said it is permissible for appellate courts to presume that a within-Guidelines sentence i s r e a sonable, see Rita
, 551 U.S. a t 347–51. Our court d o e s not employ such a presumption, but w e r ecog niz e that we will seldom reverse a within-Guidelines sentence if it is correctly calculated. Carty , 520 F .3d at 994.

The troublesome issue in t h i s c ase arises because the mandatory minimums must be combined wi th the sentence imposed o n the underly ing crimes, to create a very long sentence. Yet this does not make the sentence unreasonable within the meaning o f 1 8 U.S.C. § 3742. W e have ex pressly

so recog niz ed. W e have held that the district court must impose a mandatory minimum sen tence even if d oing so “makes it impossible for the judg e to impose a total sentence that the court considers reasonable.” U n i t ed States v

. W ashington

, 462 F .3d 1124, 1 140 (9th Ci r

. 2006). And to require that a d istrict court reduce a defendan t ’s Guidelines
sentence to c ounter the e f fects of mandatory minimums would be contrary to cong ressional intent that the Guidelines
sentence r eflect the o bjectives of 18 U.S.C. § 3553(a). See Rita , 551 U.S. at 347–51.

The parties c ite o nly one case in which the mandatory minimum itself was so long that the district court r educed the
sentence for the underly ing crime. See United States v. Dare
, 425 F

. 3d 634 (9th Cir. 2005). There, however, the underly ing crime of p ossession of marijuana was not a serious offense. I n Dare
, the distri ct c o u rt found the ten y ear mandatory

m inimum sentence itself to be outrag eous, b u t correc t l y observed it h ad n o d i s c retion to chang e it. Id

. at 637. TheU N I T E D S T A T E S V

. T H O M A S 16

court imposed a sentence of z ero for t he underly ing offense and the sentence was not at issue in the appeal.

Here, in contrast, the u n d e r l y ing crimes are serious, a nd

no one sug g ests Thomas should g o u npunished for them. Thomas p lotted, org aniz ed a n d facilitated three robberies involving w eapons and threats of harm to many employ ees and bank customers. W e m u s t respect both the district court’s e x ercise of discretion in imposing the sentence on the underly ing crimes and the court’s lack of discretion in imposing the mand a t o ry minimums which a re actually responsible for the leng th of the sentence. W hile the district
court had the d iscretion to impose a lower se n tence on the robbery a nd c onspiracy counts, it was not required as a matter of law to reduce Thomas’s sentence to c ounter the effects o f the mandatory minimums. W e must conclude t h at the

s e n t e n c e i m p o s e d w a s t h e re f o r e n o t s u b s t a n t i v el y unreasonable.

AF F IRMED

.

KOZ I NSKI , Circuit J udg e, dissenting in part:

J oe l L eo n T homas, J r., barely 24 y ears old when he was sentenced, w ill be 73 when he g e ts out of prison. How d id a y oung man g et half a century following a conviction for three bank robberies—two of which he wasn’t present for and none of which resulted in phy sical harm? The answer is a s troubling as it is simple: The district judg e misunderstood the
scope of his discretion and therefore f a i l ed to impose a sentence that is substantively reasonable.U N I T E D S T A T E S V

. T H O M A S 17

The record leaves no doubt that the district judg e believed h e lacked discretion to reduce T homas’s sentence. This i s what he said:

W h en all of t h e s e a r e added tog ether, it is a total sentence of 49 and a half y e a r s

. 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 p lain wrong , as the majority holds: “[ T] he district

cour t h a d t h e discretion to impose a lower sentence.” Maj. Op. at 16. The majority reads the d i s t r i c t judg e’s statement that he didn’t “feel comfortable” reducing t h e s e ntence a s contradicting his ex p r e ss statement that he lacks discretion. Ma j

. Op. a t 13. B ut the two statements aren’t inconsistent: The district judg e may have felt u n comfortable reducing Thomas’s sentence because he believed he lacked discretion
to d o so. The judg e ’s statements, taken tog ether, show pretty clearly th a t h e misunderstood his a uthority

, and “the appropriate remedy is a remand to ex ercise [ his] discretion.” United States v. Khoury

, 62 F .3d 1138, 1 141 (9th Cir. 1995).

The sentencing judg e had n o discretion to reduce the

m andatory minimums, but h e did have discretion as to the Guidelines portion of the sentence. United States v

. Booker

, 543 U.S. 220, 245 (2 0 0 5 )

. So this isn’t a case where mandatory minimums made it “impo s s i ble for the judg e to impose a total sentence that the court c onsiders reasonable.” Maj. Op. at 15 (quoting U nit e d S t ates v. W

a shington

, 462 F .3d 1124, 1140 (9th Cir. 2006)). The distric t j u d g e could have imposed a Guidelines sentence as low a s z ero months in order to arrive at a substantively reasonable
ag g r eg ate sentence. See United States v. Dare
, 425 F .3d 634,U N I T E D S T A T E S V

. T H O M A S 18

638, 643 ( 9th Cir. 2 005) (affirming an ag g reg ate sentence o f 10 y ears w here the district court im posed a z ero-month
sentence for marijuana possession to minimiz e the impact o f an “outrag eous” mandatory minimum).

Not only m ay a sentencing judg e c onsider the impact o f mandatory minimums, he must d o so t o e n s u r e that the
ag g r eg ate sentence imposed is substantively r easonable. The distr ict judg e didn’t “feel c omfortable reducing the [ Guidelines] sentence

. . . to sort of b alance it all out because [ he thoug ht 17.5 y ears was] the rig ht sentence for three bank robberies and three conspiracies to commit bank robberies.” A 17.5 y ear sentence m ay b e appropriate if the defendant starts serving it today but inappropriate if he starts serving it three decades from now. Th e j udg e must consider whether imposing that sentence on s o m e one who has just spent 32
y ears in prison would serve any of the g oals of section 3553(a). W ill it deter? W ill it rehabilitate? I s i t r e a lly the lowest sentence that can achieve these purposes? You will
g et the w rong answers to these questions if y ou treat the two parts of the sentence—the mandatory minimum portion a nd the Guidelines portion—as independent and unrelated. The district judg e mistakenly b elieved he w a s required to calculate the Guid elines portion of the sentence as if it were

a stand-alone sentence, rather than as one c o mponent of a combined sentence. There is, at the very least, a serious risk that the district judg e meant what he said: He imposed a 49.5
y ear sentence because he believed he had no discretion. This is a major procedural error that requires reversal.

The sentence is also substantively unre a s onable. “A substantively reasonable s e n tence is one that is ‘sufficient, but not g reater than necessary ’ to accomplish § 3553(a)(2)’s sentencing g oals.” United States v. Crowe
, 563 F .3d 969, 977U N I T E D S T A T E S V

. T H O M A S 19

n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)). Thomas’s sentence “fails p roperly to reflect § 3553(a) considerations.” United States v

. A mezcua-Vasquez
, 5 6 7 F .3d 1050, 1055 (9th Cir. 20 0 9 ) (citing Rita v. United States
, 551 U.S. 338, 3 5 1 ( 2 0 07)). Consider “the n ature a nd circumstances of the offense”: Thomas was only present for

one of the three bank robberies. See 1 8 U.S.C. § 3 5 5 3 ( a ). Althoug h this was an armed robbery

, Thomas wasn’t the o ne holding the g un. The other bank robberies—neither o f which Thomas w as actually present for—resulted in stolen proceeds that d i d n ’ t ex a ctly break the bank: $1,678 and $7,191. A nd

none of the bank robberies resulted in phy sical harm to bank

e m ploy ees or customers. Or consider “the history a nd characteristics o f t h e defendant”: Thomas’s only prior conviction was a 2009 misdemeanor for loud noise. I d. The district judg e summed it u p b est: T homas’s c riminal history is “very limited.” The “need to avoid unwarranted sentence disparities among d efendants with similar records who have been f ound gu ilty of similar conduct” also weig hs in Thomas’s favor g iven that his co-defendants—all o f w hom actively p articipated in the robberies to a g reater ex tent than Thomas—received lesser sentences. Id. I ndeed, Thomas g ot

a d o z e n y ears more than Ahmed Ressam, who p lotted to “blow up L AX, [ which] w ould have resulted in many deaths and injuries, substantial property d amag e and enormous disruption to the nation’s transportation sy stem.” See United States v. R essam , 679 F .3d 1069
, 1 0 90 & Dist. Ct. Dkt. No. 458 (9th Cir. 2012) (en banc).

Thomas’s 49.5 y e a

r sentence is far “g rea t e r than
necessary ” to a ccomplish se c tion 3553(a)’s g oals. I would remand so that the district judg e may ex ercise his discretion and impose a substantively reasonable sentence.