                   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.              ORDER


                    Filed May 8, 2017

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

                        Order;
               Dissent by Judge Wallace
2                  UNITED STATES V. THOMAS

                            SUMMARY*


                           Criminal Law

    The panel filed an order granting in part and denying in
part a petition for panel rehearing, and denying on behalf of
the court a petition for rehearing en banc, in a case in which
the panel, on December 20, 2016, filed an opinion affirming
a conviction and sentence for multiple counts of conspiracy,
armed bank robbery, and use of a firearm during a crime of
violence.

    The panel vacated the sentence imposed by the district
court and remanded for reconsideration in light of the
Supreme Court’s intervening decision in Dean v. United
States, No. 15-9260, slip op. at 6 (U.S. Apr. 3, 2017), which
said that “[n]othing in § 924(c) restricts the authority
conferred on sentencing courts by § 3553(a) and the related
provisions to consider a sentence imposed under § 924(c)
when calculating a just sentence for the predicate count.”

    Dissenting, Judge Wallace would deny the petition for
rehearing because the Supreme Court in Dean merely
confirmed the conclusion of the district judge, who clearly
acknowledged his discretion to reduce the sentence for the
predicate offenses.




    *
      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

                         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.


                          ORDER

    A majority of the panel has voted to GRANT rehearing,
in part. The Supreme Court recently considered whether the
existence of a mandatory minimum sentence under § 924(c)
impacts the analysis under § 3553(a). It said “[n]othing in
§ 924(c) restricts the authority conferred on sentencing courts
by § 3553(a) and the related provisions to consider a sentence
imposed under § 924(c) when calculating a just sentence for
the predicate count.” Dean v. United States, No. 15-9260,
slip op. at 6 (U.S. Apr. 3, 2017). In light of this intervening
authority, the sentence imposed by the district court is
VACATED and the matter REMANDED for reconsideration
in light of Dean. The petition for rehearing is otherwise
DENIED.

    The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
4               UNITED STATES V. THOMAS

    The petition for rehearing en banc is DENIED. Further
petitions for rehearing and rehearing en banc shall not be
entertained.



WALLACE, Circuit Judge, dissenting:

    I dissent from the order granting rehearing in part and
vacating Thomas’s sentence so that he can be resentenced in
light of the Supreme Court’s recent decision in Dean v.
United States, No. 15-9260 (U.S. Apr. 3, 2017). In Dean, the
Supreme Court addressed the question of whether a
sentencing judge has discretion to consider the effect of a
mandatory minimum sentence imposed pursuant to 18 U.S.C.
§ 924(c) when determining the sentence for an underlying
substantive offense. The Supreme Court answered in the
affirmative, concluding that “[n]othing in § 924(c) restricts
the authority conferred on sentencing courts by § 3553(a) and
the related provisions to consider a sentence imposed under
§ 924(c) when calculating a just sentence for the predicate
count.” Dean, slip op. 6.

    Based on the panel majority’s decision to vacate the
sentence in this case, one might think that the district judge
incorrectly believed that he lacked such discretion. But the
contrary is true: the district judge acknowledged, not once but
twice, that he did have discretion to balance the sentence for
the predicate offenses against the mandatory minimums. Our
opinion in this case, which the majority now vacates, went
out of its way to recognize this fact when concluding that
Thomas’s sentence was neither procedurally nor substantively
unreasonable:
                UNITED STATES V. THOMAS                     5

       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.

United States v. Thomas, 843 F.3d 1199, 1205 (9th Cir.
2016). Of course the panel majority opinion did not discuss
Dean, which was pending at the time. The panel majority
understood, quite rightly, that it would have no impact on the
outcome of this case. By holding that sentencing courts have
discretion to consider the effect of mandatory minimum
sentences, the Supreme Court merely confirmed the district
judge’s conclusion in this case. Conversely, had the Supreme
Court determined that sentencing courts lack such discretion,
there would have been no reversible error here because the
district judge did not adjust the sentence for the predicate
offenses.

    Thus, the district judge clearly acknowledged his
discretion to reduce the sentence for the predicate offenses;
the panel majority approvingly recognized that he had done
so; and the Supreme Court confirmed that view in Dean.
Simply put, the district judge got it right. Yet the new panel
majority now decides that we must remand the case for
6               UNITED STATES V. THOMAS

resentencing so that the judge can account for the same rule
that he applied the first time around. In my view, this is not
a worthwhile use of limited judicial resources. Nor is it
appropriate to suggest the presence of error where none
exists. Because the district judge did exactly what Dean says
he should do, I would deny the petition for rehearing.
