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United States v. Thomas

United States Court of Appeals, Ninth Circuit

December 20, 2016

United States of America, Plaintiff-Appellee,
v.
Joel Leon Thomas, Jr., Defendant-Appellant.

          Argued and Submitted April 15, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding D.C. No. 2:12-cr-00523-DGC-2

          Florence M. Bruemmer (argued), Law Office of Florence M. Bruemmer PC, Anthem, Arizona; Anders V. Rosenquist, Rosenquist & Associates, Anthem, Arizona; for Defendant-Appellant.

          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.

          Before: J. Clifford Wallace, Mary M. Schroeder, and Alex Kozinski, Circuit Judges.

         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.

         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.

          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 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 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.

         Thomas 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.

         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 by Thomas. This robbery was not armed. With Thomas's help, Brymer wrote the demand note that McQueen handed to the teller. After the ...


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