                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,             No. 14-10427
           Plaintiff-Appellee,
                                       D.C. No.
              v.                 2:12-cr-00523-DGC-2

JOEL LEON THOMAS, JR.,
        Defendant-Appellant.             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 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.


                         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 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
                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 by Thomas. This robbery was 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 semi-
automatic 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
mandatory minimums, 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 mandatory minimums, 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 within-
Guidelines 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.
