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United States v. Thomas

United States Court of Appeals, Ninth Circuit

May 8, 2017

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

         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 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.

          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.

         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 § ...


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