United States v. Thomas

1

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

No. CR-12-00523-002-PHX-DGC

United States District Court, D. Arizona

August 2, 2022

ORDER

David G. Campbell Senior United States District Judge.

Defendant Joel Thomas is serving a 42-year sentence on multiple counts of conspiracy, bank robbery, and brandishing a firearm during crimes of violence. See Doc. 706. He moves to reduce his sentence to time served pursuant to 18 U.S.C. § 3582(c)(1). Doc. 732. The motion is fully briefed (Docs. 736 741), and oral argument will not aid the Court's decision. For reasons stated below, the Court will deny the motion.

I. Background.

In early 2012, Thomas and his friend Billy Brymer committed three bank robberies, two of them armed. Thomas and Brymer began planning the robberies in 2011. Thomas provided inside information on the banks (where he worked or had worked), including their security practices, floor plans, available cash, and customer activity. Brymer recruited two homeless men, McQueen and Brown, as well as two men from California, Bagley and Edwards, to assist in the robberies.

The first robbery occurred on January 21, 2012, at a Wells Fargo bank in Sun City, Arizona. 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. No manager was available to open the vault, so Edwards demanded money from the tellers and came away with about $7,200. Edwards then fled to the parking lot where he was joined by Brymer and Bagley. While the robbery was taking place, Thomas was positioned nearby as a lookout for police.

The second robbery occurred on February 25, 2012, at a Wells Fargo bank in Surprise, Arizona. With Thomas's help, Brymer wrote the demand note that McQueen gave to the teller, who handed over nearly $1,700. After the robbery, McQueen and Brown, who had stayed outside as a lookout, met with Thomas and Brymer and divided the money.

The third robbery occurred on February 29, 2012, at a Chase bank in Peoria, Arizona, where Thomas was then working. Thomas chose that day because he knew the vault would contain a large amount of cash. As Thomas and the manager were opening the bank, Brymer forced his way inside, pointed a gun at the manager, and demanded money. Thomas did nothing to help his manager, ensuring Brymer would gain entry to the bank and the vault. Brymer left with more than $245,000, which he and Thomas planned to split evenly. See Doc. 736 at 3-4 (citations omitted); Doc. 740 ¶¶ 17-19 (presentence report); United States v. Thomas, 843 F.3d 1199, 1200-01 (9th Cir. 2016).

After his arrest, Thomas spoke to agents and admitted his role in planning the robberies and purchasing weapons. The government charged Thomas with three counts of conspiracy to commit bank robbery, two counts of armed bank robbery, and one count of bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a). Doc. 458 (Counts 1-2 and 4-7). For the armed robberies (Counts 2 and 7), Thomas also was charged with brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c) (Counts 3 and 8). Id.

Thomas rejected the government's plea offer of 14-18 years and exercised his right to a jury trial. See Doc. 259. A nine-day trial was held in March 2014. See Docs. 469-84. Thomas took the stand and perjured himself by making statements directly contrary to his previous statements to the government, the testimony of cooperating witnesses (including Brymer), and the evidence against him. See Doc. 740 ¶ 42. The jury convicted Thomas on all counts. Doc. 488.

In September 2014, the Court sentenced Thomas to a 49.5-year prison term. Docs. 537, 541. For the conspiracy and robbery convictions, Thomas received a total sentence of 17.5 years (210 months), the low end of the applicable Guidelines range. Doc. 541 at 1.^[1] The § 924(c) convictions for brandishing a firearm during a crime of violence required a mandatory minimum term of 32 years - 7 years for Count 3 and 25 years for Count 8 - that would run consecutively and in addition to the sentences on the other six counts. Id.; see Doc. 740 ¶¶ 112, 114-15; 18 U.S.C. § 924(c)(1)(A)-(D).

The Ninth Circuit affirmed Thomas's conviction and 49.5-year sentence. Doc. 691; Thomas, 843 F.3d at 1206. Later, the Supreme Court held in United States v. Dean, 137 S.Ct. 1170 (2017), that district courts may consider the impact of a sentence imposed under § 924(c) when calculating a just sentence for the predicate count. As a result, the Ninth Circuit vacated Thomas's sentence and remanded for reconsideration. Doc. 697; United States v. Thomas, 856 F.3d 624 (9th Cir. 2017). On remand, the Court imposed a sentence of 42 years - the lowest possible sentence in light of mandatory minimums. Docs. 706, 713.^[2] The Ninth Circuit summarily affirmed the 42-year sentence. Doc. 722.^[3]

Mr. Thomas is confined at the federal correctional institution in Phoenix, Arizona (“FCI Phoenix”). See Docs. 732-1 at 6, 736 at 6; Federal Bureau of Prisons, Find an Inmate, https://www.bop.gOv/mobile/findinmate/byname.jsp#inmateresults (last visited July 26, 2022). His earliest projected release date is January 16, 2048. Id.

On January 21, 2022, he asked the warden at FCI Phoenix for a sentence reduction. Doc. 732-9. The request was denied on February 14, 2022. Doc. 732-10. Defendant thereafter filed this motion under 18 U.S.C. § 3582(c)(1), as amended by the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, § 603, 132 Stat. 5194 (Dec. 21, 2018). Doc. 732. Thomas seeks immediate release, arguing that his 42-year sentence is excessive and should be reduced to time served. Doc. 732-1 at 6.

II. Sentence Reductions Under § 3582(c)(1), the FSA, and the § 3553(a) Factors.

“District courts can modify prison sentences only in limited circumstances set out by federal statute.” United States v. King, 24 F.4th 1226, 1228 (9th Cir. 2022) (citing Dillon v. United States, 560 U.S. 817, 824 (2010)). Section 3582(c)(1), as amended by the FSA, “allows certain inmates to seek a form of sentence modification called compassionate release by filing motions to that effect with the district court.” Id.; see FSA § 603(b)(1).^[4]

“Under § 3582(c)(1), courts have the authority to reduce a sentence upon the motion of an inmate if three conditions are met: (1) the inmate has either exhausted [his] administrative appeal rights of the [BOP's] failure to bring such a motion on the inmate['s] behalf or has waited until 30 days after the applicable warden has received such a request; (2) the inmate has established ‘extraordinary and compelling reasons' for the requested sentence reduction; and (3) the reduction is consistent with ‘applicable policy statements' issued by the United States Sentencing Commission.” United States v. Burnett, No. CR17-0029JLR, 2022 WL 2440079, at *2 (W.D. Wash. July 2, 2022) (citing § 3582(c)(1)(A)(i)).^[5] Section 3582(c)(1)(A) “also instructs the court to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when deciding whether a reduction in sentence is appropriate.” Burnett, 2022 WL 2440079, at *2; see United States v. Soza-Soto, No. 19-CR-684-GPC, 2020 WL 7260663, at *3 (S.D. Cal. Dec. 10, 2020) (“Before determining if release is warranted, the Court must also take into account public safety and the Section 3353(a) sentencing factors.”) (citing § 3582(c)(1)(A)(ii)).

III. Thomas's Motion.

The burden rests with Thomas “to provide proof that [he] has met the exhaustion criteria set forth in § 3582(c)(1)(A) and to establish that ‘extraordinary and compelling reasons exist' to warrant [his] release.” United States v. Packard, No. 19CR3886-H, 2021 WL 4751173, at *2 (S.D. Cal. Oct. 12, 2021). Thomas has satisfied § 3582(c)(1)(A)'s exhaustion requirement because he filed the present motion more than 30 days after he submitted his administrative request for early release. See Docs. 732-1 at 12, 732-9.

Thomas contends that the 25-year sentence for his § 924(c) conviction on Count 8 is excessive and therefore constitutes an extraordinary and compelling reason to reduce his sentence to time served. Doc. 732-1 at 6, 12-16. The government counters that Thomas has not established extraordinary and compelling reasons and that the sentencing factors in 18 U.S.C. § 3553(a) weigh against his release. Doc. 736. The Court agrees with the government.

A. Thomas Has Not Shown Extraordinary and Compelling Reasons.

Section 924(c) establishes a sentence of 5 years for a defendant's first conviction of possessing a firearm during a crime of violence, which increases to 7 years if the firearm is brandished, as here. See § 924(c)(1)(A)(i)-(ii). When Thomas was sentenced, § 924(c) also mandated an enhanced 25-year term for each “second or subsequent conviction[.]” § 924(c)(1)(C)(i), Pub. L. 109-304, § 17(d)(3), 120 Stat. 1707 (2006). The Supreme Court interpreted the phrase “second or subsequent conviction” to permit the “stacking” of mandatory minimum sentences for multiple § 924(c) convictions in the same case. See United States v. Jones, 482 F.Supp.3d 969, 978 (N.D. Cal. 2020) (citing Deal v. United States, 508 U.S. 129, 132 (1993)); United States v. Davis, 139 S.Ct. 2319, 2324 n.1 (2019) (“[A] defendant convicted of two § 924(c) violations in a single prosecution faced a 25-year minimum for the second violation.”) (citing Deal, 508 U.S. at 132); United States v. Merrell, 37 F.4th 571, 573 (9th Cir. 2022) (“[T]he qualifying ‘second or subsequent conviction' could arise from the same trial and indictment as the ‘first' conviction.”) (citing Deal, 508 U.S. at 132-37). Thus, a defendant convicted on two § 924(c) counts in a single indictment automatically faced a “stacked” mandatory sentence of at...