and Submitted April 15, 2016 San Francisco, California
from the United States District Court for the District of
Arizona David G. Campbell, District Judge, Presiding D.C. No.
Florence M. Bruemmer (argued), Law Office of Florence M.
Bruemmer PC, Anthem, Arizona; Anders V. Rosenquist,
Rosenquist & Associates, Anthem, Arizona; for
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.
Before: J. Clifford Wallace, Mary M. Schroeder, and Alex
Kozinski, Circuit Judges.
panel affirmed a conviction and sentence for multiple counts
of conspiracy, armed bank robbery, and use of a firearm
during a crime of violence.
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.
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
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
SCHROEDER, Circuit Judge
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.
challenges to the conviction can be easily dealt with. The
sentence raises more difficult issues. This is because 32
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
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.
early August 2011, Thomas and a friend, Billy Brymer, 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.
and Brymer planned at least two of the robberies as armed
robberies, and together purchased the weapons that were
actually used. Thomas chose the banks that were robbed.
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.
second robbery occurred on February 25, 2012, at a Wells
Fargo branch chosen by Thomas. This robbery was not armed.
With Thomas's help, Brymer wrote the demand note that
McQueen handed to the teller. After the ...