author: M. SMITH, Circuit Judge:

text:
    Glenn TIBBLE; William Bauer; William Izral; Henry Runowiecki; Frederick Suhadolc; Hugh Tinman, Jr., as representatives of a class of similarly situated persons, and on behalf of the Plan, Plaintiffs-Appellants, v. EDISON INTERNATIONAL; The Edison International Benefits Committee, FKA The Southern California Edison Benefits Committee; Edison International Trust Investment Committee; Secretary of The Edison International Benefits Committee; Southern California Edison’s Vice President of Human Resources; Manager of Southern California Edison’s HR Service Center, Defendants-Appellees. Glenn Tibble; William Bauer; William Izral; Henry Runowiecki; Frederick Suhadolc; Hugh Tinman, Jr., as representatives of a class of similarly situated persons, and on behalf of the Plan, Plaintiffs-Appellees, v. Edison International; The Southern California Edison Benefits Committee, incorrectly named The Edison International Benefits Committee; Edison International Trust Investment Committee; Secretary of the Southern California Edison Company Benefits Committee, incorrectly named Secretary of the Edison International Benefits Committee; Southern California Edison’s Vice President of Human Resources; Manager of Southern California Edison’s HR Service Center, Defendants-Appellants.
    No. 10-56406, No. 10-56415
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted En Banc September 8, 2016, San Francisco, California
    Filed December 16, 2016

      Michael A. Wolff (argued), Jason P. Kelly, Sean E. Soyars, Nelson G. Wolff, and Jerome J. Schlichter, Schlichter Bogard & Denton, Saint Louis, Missouri, for Plaintiffs-Appellants/Cross-Appellees.
    Jonathan D. Hacker (argued), Meaghan VerGow, Robert N. Eccles, and Walter Dellinger, O’Melveny & Myers LLP, Washington, D.C.; Gabriel Markoff and Ward A. Penfold, O’Melveny <& Myers LLP, San Francisco, California; Sergey Trakhtenberg, Southern California Edison Company, Rosemead, California; for Defendants-Appellees/Cross-Appellants.
    Jay E. Sushelsky, AARP Foundation Litigation, and Melvin Radowitz, AARP, Washington, D.C., for Amicus Curiae AARP.

      Stacey E. Elias, Trial Attorney; Elizabeth Hopkins, Counsel for Appellate and Special Litigation, Washington, D.C.; Timothy D. Hauser, Associate Solicitor for Plan Behefits Security Division; and M. Patricia Smith, Solicitor of Labor, United States Department of Labor, Washington, D.C.; for Amicus Curiae Secretary of Labor.
    S. Michael Chittenden and Thomas L. Cubbage III, Covington & Burling LLP, Washington, D.C., for Amicus Curiae Investment Company Institute.
    Abbey M. Glenn, Alison B. Willard, and Nicole A. Diller, Morgan Lewis Bockius LLP, San Francisco, California; for Ami-cus Curiae California Employment Law Council.
    Before: SIDNEY R. THOMAS, Chief Judge, and STEPHEN REINHARDT, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RICHARD A. PAEZ, RICHARD R. CLIFTON, CARLOS T. BEA, MILAN D. SMITH, JR., JACQUELINE H. NGUYEN, PAUL J. WATFORD and MICHELLE T. FRIEDLAND, Circuit Judges.
   OPINION

M. SMITH, Circuit Judge:

FACTS AND PRIOR PROCEEDINGS

Edison sponsors a defíned-contribution 401(k) Savings Plan (Plan), wherein “participants’ retirement benefits are limited to the value of their own individual investment accounts, which is determined by the market performance of employee and employer contributions, less expenses.” Tibble v. Edison Int’l, — U.S. —, 135 S.Ct. 1823, 1826, 191 L.Ed.2d 795 (2015) (Tibbie IV). “Expenses, such as management or administrative fees, can sometimes significantly reduce the value of an account in a defined-contribution plan.” Id.

In 2007, plaintiffs-appellants (beneficiaries) brought this action against Edison and the other defendants (collectively, Edison).-' The district court ‘denied the beneficiaries’ motion for partial summary judgment, and partially granted Edison’s summary judgment motion. Tibble v. Edison Int’l, 639 F.Supp.2d 1074, 1080 (C.D. Cal. 2009) (Tibbie I). This appeal concerns a claim that survived summary judgment; namely, that Edison breached its fiduciary duties by offering “higher priced retail-class mutual funds as Plan investments When materially identical lower priced institutional-class mutual funds were available (the lower price reflects lower administrative costs).” Tibble IV, 135 S.Ct. at 1826.

The Plan is governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. The relevant ERISA statute of limitations is six years, 29 U.S.C. § 1113(1), and at least three of the disputed funds were added more than six years before the complaint was filed. Tibbie TV, 135 S.Ct. at 1826. The district court allowed the beneficiaries to present evidence that their claims concerning those funds were timely because Edison, within the six-year limitations period, “fail[ed] to convert the retail shares to institutional shares upon the occurrence of certain ‘triggering events’ ” that should have prompted a full due-diligence review. Tibble v, Edison Int’l, No. CV 07-5359 SVW (AGRx), 2010 WL 2757153, at *31, 2010 U.S. Dist. LEXIS 69119, at *99 (C.D. Cal. July 8, 2010) (Tibble II).

After a bench trial, the district court ruled for the beneficiaries on the retail-class funds selected within the six-year period, because Edison did “not offer[] any credible explanation for why the retail share classes were selected instead of the institutional share classes,” and “a prudent fiduciary acting in a like capacity would have invested in the institutional share classes.” Id. at *30, 2010. U.S. Dist. LEXIS 69119, at *98. Indeed, the court held that there was “no evidence that [Edison] even considered or evaluated the different, share classes” when the funds were added. Id. at *25, 2010 U.S. Dist. LEXIS 69119, at *81 (emphasis in original).

As to the funds initially selected before the statute of limitations, the district court held that the “triggering events” proffered by the beneficiaries for -two of the funds— a name change because of a partial change in ownership of a sub-advisor, and a name change related to a years-old ownership change — were insufficient to trigger a full diligence review, and that a change in strategy in a third fund — from small-cap to mid-cap — triggered a review to which Edison responded adequately by adding another small-cap option. Id. at *31-38, 2010 U.S. Dist. LEXIS 69119, at 102-07.

On appeal to our court, the beneficiaries argued that the district court should have allowed them to prove their claims concerning funds selected before the l’elevant six-year period. Tibble v. Edison Int’l, 729 F.3d 1110, 1119 (9th Cir. 2013) (Tibbie III), vacated, — U.S. —, 135 S.Ct. 1823, 1829, 191 L.Ed.2d 795 (2015). In response, Edison acknowledged that it had a duty to monitor the funds for changed circumstances that would make the investment no longer prudent, but argued that the beneficiaries did not show sufficiently changed circumstances.' Our vacated decision accepted Edison’s contention, and noted that “the district court was entirely correct to have entertained” the possibility of changed circumstances, and correct to have found the circumstances insufficient to trigger a response by Edison. Id. at 1120. We thus concluded that any theory of a duty absent changed circumstances amounted to a continuing violation theory that we declined to read into the ERISA statute of limitations. Id. at 1119-20.

Plaintiffs successfully petitioned for cer-tiorari, and the Supreme Court reversed our decision concerning the statute of limitations, holding that regardless of when an investment was initially selected, “a fiduciary’s allegedly imprudent retention of an investment” is an event that triggers a new statute of limitations period. Tibble IV, 135 S.Ct. at 1826, 1828-29. The Court specifically rejected “the conclusion that only a significant change in circumstances could engender a new breach of a fiduciary duty.” Id. at 1827. We were cautioned against “applying a statutory bar to a claim of a ‘breach or violation’ of a fiduciary duty without considering the nature of the fiduciary duty,” and told to “recognize that under trust law a fiduciary is required to conduct a regular review of its investment with the nature and timing of the review contingent on the circumstances.” Id. at 1827-28. The Court instructed us to decide “the scope of [Edison’s] fiduciary duty” to monitor investments. Id. at 1829.

The Court also left to us on remand “any questions of forfeiture,” acknowledging Edison’s contention that the beneficiaries “did not raise the claim below that [Edison] committed new breaches of the duty of prudence by failing to monitor their investments and remove imprudent ones absent a significant change in circumstances.” Id.

A panel of our court in Tibble v. Edison International, 820 F.3d 1041, 1048 (9th Cir. 2016) (Tibbie V), concluded that the issue was forfeited. We then ordered that the case be reheard en banc, so the panel’s decision in Tibbie V is vacated. Tibble v. Edison Int’l, 831 F.3d 1262 (9th Cir. 2016).

For the reasons discussed below, we vacate the district, court’s decisions concerning the funds added to the Plan before 2001, and remand for trial on an open record on the claim that, regardless; of whether there was a significant change in circumstances, Edison should have switched from retail-class fund shares to institutional-class fund shares to fulfill its continuing duty to monitor the appropriateness of the trust investments. We also encourage the district court to reevaluate its fee determination in light of the Supreme Court’s decision, and our decision en banc.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291; We review summary judgment determinations de novo. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011).

ANALYSIS

I. Applicable Law

The applicable statute of limitations in this case is the six-year limit of 29 U.S.C. § 1113(1)(A), which states that “[n]o action may be commenced ... with respect to a fiduciary’s breach of any responsibility, duty, or obligation ... six years after [] the date of the last action which constituted a part of the breach or violation.” As the Supreme Court noted in Tibbie TV, under this statute only a “breach or violation,” not an original investment decision, need occur to start the six-year statutory period. 135 S.Ct. at 1827.

Generally, we do not “entertain[ ] arguments on appeal that were not presented or developed before the district court.” Visendi v. Bank of Am., N.A., 733 F.3d 863, 869 (9th Cir. 2013). “Although no bright line rule exists to determine whether a matter [h]as been properly raised below, an- issue will generally be deemed waived on appeal if the argument was not raised sufficiently for the trial court to rule on it.” In re Mercury Interactive Corp. See. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (internal quotation marks omitted).

II, Forfeiture

Before addressing the statute of limitations and ERISA-trust law issues remanded to us by the Supreme Court, we address Edison’s claims that the issues presently on appeal have been forfeited by the beneficiaries. We conclude that the beneficiaries did not forfeit their failure-to-monitor argument in either the district court or on appeal. Instead, we conclude that Edisou itself forfeited the.forfeiture argument .in its initial appeal.

A. There Was No Forfeiture by the Beneficiaries on Appeal

We begin with the appeal. The beneficiaries argued in their opening brief that:

Defendants had a continuing duty to ensure that each of the Plans’ investment options was and remained prudent and had , reasonable expenses. Merely because they allowed an imprudent fund into the Plan at one point does not mean Defendants could just leave it in the Plan forever. Within six years prior to the commencement of this action, Defendants could have switched the Plan out of the retail shares and into the institutional shares of three excluded mutual funds and saved the Plan millions in unnecessary fees.

Similarly, the beneficiaries argued:

At any time in that six-year period Defendants could have switched from retail to institutional class shares. Their failure to do so caused the Plan to pay unnecessary, retail fees in each of those six years. Therefore, the “last action which constituted a part of the breach” — using retail class shares — occurred within six years and the “latest date on which the fiduciary could have cured the breach”— replacing retail with institutional shares — also occurred within six years.

And, the beneficiaries argued that “[f]und fiduciaries ... were under a continuing obligation to advise the Fund to divest itself of unlawful or imprudent investments.” (Citing Buccino v. Cont’l Assurance Co., 578 F.Supp. 1518, 1521 (S.D.N.Y. 1983)).

Thus, the beneficiaries argued on appeal for an ongoing duty to monitor investments and to remove imprudent investments — a duty that was not limited to “changed circumstances.” The theory was simply that: “[i]n light of the continuing duty of prudence imposed on plan fiduciaries by ERISA, each failure to exercise prudence constitutes a new breach of duty, that is to say, a new claim”— squarely embracing the theory accepted by the Supreme Court. See Tibble IV, 135 S.Ct, at 1829. In response, Edison argued for a duty that was limited to changed circumstances: “Plan fiduciaries do have a continuing duty under ERISA to monitor investment options for changed circumstances rendering a once-prudent investment now imprudent, but plaintiffs here allege no changed circumstances.” The Tibble III panel accepted Edison’s limiting theory, but the Supreme Court rejected it. The claim was not forfeited on appeal.

B. There Was No Forfeiture by the Beneficiaries in the District Court

Nor did the beneficiaries forfeit their claim in the district court. Edison’s post-trial briefing stated:

The. Court expressly held. in its first summary judgment ruling that plaintiffs could not revisit the prudence of selecting mutual funds that became part of the Plan’s investment lineup more than six years prior to the filing of the Complaint, By challenging the prudence of maintaining retail share classes of the three “name change” funds, plaintiffs have done what the Court has forbidden, by attempting to resurrect claims that were properly held barred by the six-year statute of limitations.

(Emphasis added and citation omitted). Given this contemporaneous statement that any claim challenging the prudence of maintaining retail share classes first selected before the limitations period had been rejected on summary judgment, it is hard to see how Edison can now argue that the beneficiaries forfeited the argument by not presenting “any evidence establishing that a prudent fiduciary would have identified the alleged share-class issue during regular, periodic reviews.”

Simply put, the district court held at summary judgment that because “the initial decision to add retail mutual funds” was made outside of the six-year limitations period, “the prudence claims arising out of these decisions are barred by the statute . of limitations.” Tibble I, 639 F.Supp.2d at 1120. And, the district court stated in its trial decision: “three funds were added to the Plan before the statute of limitations period; thus, Plaintiffs challenged the failure to switch to an institutional share class upon the occurrence of certain significant events within the limitations period.” Tibble II, 2010 WL 2757153, at *2, 2010 U.S. Dist. LEXIS 69119 at *7 (emphasis added). The district court used the causal “thus” to describe why Plaintiffs relied on a “significant changes theory”: because prudence claims' arising out of the initial selection were outside the statute of limitations, and barred by the summary judgment order (absent changed circumstances).

Edison also pointed to the district court’s questioning of the beneficiaries’ expert, Dr. Steven Pomerantz, who attempted to identify changed circumstances that would have triggered a duty to switch the share class, such that the claim would not be barred by the district court’s statute of limitations ruling. In conversation with Pomerantz, the district court said that it did not understand the connection between a name change of a fund and whether Edison should have switched to institutional class shares, and asked whether Edison should have removed the funds even without a name change. The court asked: “[w]ould you contend ... that during the relevant time period due diligence would have required the plan to nevertheless buy an institutional share class, all things being equal, assuming the institutional share class had a lower.fee?” Pomerantz mostly stuck to his significant changes theory in response. Edison .argued that this exchange showed that the district court did not forbid a duty-to-monitor claim; indeed, according to Edison, the district court “invited Pomerantz to make [a duty-to-monitor claim] :.., but he refused to agree,” sticking to the significant changes theory.

It is certainly possible that the district court had forgotten a portion of its voluminous summary judgment ruling, and was at that time open to a theory imposing a continuing duty in the absence of “changed circumstances.” Or it could be, as the beneficiaries suggest, that the district court was checking to see whether the theory Pomerantz was articulating was in substance the same as the theory the district court had excluded. It does not matter which interpretation is correct, because neither shows forfeiture. Whatever the intent behind the district court’s hypothetical questions to an expert, they did not constitute a change in its earlier ruling sufficient to put the beneficiaries on notice that- they could then, contrary to the court’s earlier ruling, put on evidence to prove their preferred continuing duty theory.

Finally, Edison emphasizes that the district court allowed the beneficiaries to put on a continuing duty case concerning a different investment, the Money Market Fund. See Tibble II, 2010 WL 2757153, at *33-37 2010 U.S. Dist. LEXIS 69119 at *108-21. It is true that the claims have much in common, and it is not clear why the district court provided a distinct treatment of the Money Market Fund. Perhaps it was because Edison continued to negotiate the rate for the fund throughout the period at issue, while Edison employed a “set it and forget it” approach with the mutual funds. Whatever the reason, that the district court allowed a similar claim as to .the Money Market Fund simply does not show that, contrary to both sides’ .understanding, the beneficiaries were allowed to put on a monitor-and-remove-absent-significant-changed-circumstances theory concerning the mutual funds.

Because the beneficiaries — and Edison — reasonably believed that the district court’s summary judgment order precluded the duty to monitor claim, and because the beneficiaries preserved the claim on appeal, it has not been forfeited.

C. Edison’s Own Forfeiture

The beneficiaries argue that Edison forfeited its forfeiture argument by failing to raise it in the initial appeal. Edison did not argue forfeiture in the initial appeal consistent with its understanding, as expressed in its post-trial motion, that the district court’s summary judgment ruling barred claims relating to the funds first selected before 2001.

Edison argues that it did not raise forfeiture because the beneficiaries did not articulate their continuing duty theory before they submitted their Supreme Court briefing. However, as discussed above, the beneficiaries raised the continuing duty argument in their opening brief on appeal, Edison therefore forfeited any potential forfeiture response to that argument. And, even at.the Supreme Court, where the beneficiaries clearly presented their continuing duty argument in their petition for certiorari, Edison responded not that the beneficiaries had forfeited that claim, but instead, that a fiduciary only has a “duty to monitor for material changes in circumstances.” (Emphasis omitted).

Ill, Phillips Does Not Bar the Beneficiaries’ Claim

In Phillips v. Alaska Hotel and Restaurant Employees Pension Fund, 944 F.2d 509, 520-21 (9th Cir. 1991), we held-that the limitations period under a different subsection of the ERISA statute of limitations, 29 U.S.C. § 1113(2), begins when a plaintiff has actual knowledge of a breach. When there is “a series of discrete but related breaches” because a fiduciary violated a continuing duty over time, the § 1113(2) limitations period does not begin anew with each related breach. Id.

Phillips followed the plain language of the statute: § 1113(2) provides that the plaintiffs “actual knowledge' of the breach” is measured from “three years after the earliest date” of such knowledge. “Once a plaintiff knew of one breach, an awareness of later breaches [of the same character] would impart nothing materially new,” and applying a “continuing violation theory [would] essentially - read[ ] the ‘actual knowledge’ standard out of [§ 1113(2)].” Phillips, 944 F.2d at 520. Thus, we held that “[t]he earliest date on which a plaintiff became aware of any breach ... start[s] the limitation period of § 1113[ ](2) running.” Id.

The district court in Tibble I misunderstood Phillips to stand for the broad proposition that “[t]here is no ‘continuing violation’ theory to claims subject to ERISA’s statute of limitations.” Tibble I, 639 F.Supp.2d at 1086. However, Phillips did not reject a continuing violation theory for the ERISA statute of limitations generally; it merely held that, for claims subject to § 1113(2), the earliest date of actual knowledge of a breach begins the limitations period, even if the breach continues. When a plaintiff has actual knowledge of a breach, § 1113(2) operates to keep her from sitting on her rights and allowing the series of related breaches to continue. However, when a plaintiff does not have actual knowledge of a breach of a continuing duty and § 1113(1) applies, the rationale for Phillips’ continuing duty limit on § 1113(2) is no longer relevant. Thus, we hold that Phillips is inapplicable to the continuing duty claims at issue here, namely to 29 U.S.C. § 1113(1).

The Supreme Court held that the fiduciary duty identified in this case is continuing in nature, and that-each new breach begins a six-year limitations period under § 1113(1). The Court recognized the breach as “a fiduciary’s allegedly imprudent retention of an investment” which results in a series of related breaches as the investment is retained over time. Tibble IV, 135 S.Ct. at 1826, 1828-29 (emphasis added). As the Court made clear, only a “breach or violation,” such as a fiduciary’s failure to conduct its required regular review of Plan investments, need occur within the six-year statutory period; the initial investment need not be made within the statutory period. Id. at 1827-28.

IV. ERISA and Analogous Trust Law

The Supreme Court tasked us with resolving "the scope of [Edison’s] fiduciary duty” to monitor investments, while “recognizing the importance of analogous trust law.” Id, at 1829. Edison’s fiduciary duty arises from ERISA, “a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). “An ERISA fiduciary must discharge his responsibility ‘with the care, skill, prudence, and diligence’ that a prudent person ‘acting in a like capacity and familiar with such matters’ would use.” Tibble IV, 135 S.Ct. at 1828 (quoting 29 U.S.C. § 1104(a)(1)). “These duties are the highest known to the law.” Howard v. Shay, 100 F.3d 1484, 1488 (9th Cir. 1996) (internal quotation marks omitted). “To enforce, them, the court focuses not only on the merits of the transaction, but also on the thoroughness of the investigation into the merits of the transaction.” Id.

ERISA fiduciary duties are derived from the common law of trusts, so “courts' often must look to the law of trusts” to “determin[e] .the contours of an ERISA fiduciary’s duty.” Tibble IV, 135 S.Ct. at 1828. “Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones .., separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset.” Id. “[A] trustee cannot assume that if investments are legal and proper for retention at the beginning of the trust, or when purchased, they will remain so indefinitely.” Id. (quoting A. Hess, G. Bogert & G. Bogert, Law of Trusts and Trustees § 684, 145-46 (3d ed. 2009) [hereinafter Bogert 3d]). “Rather, the trustee must ‘systematically] conside[r] all the investments of the trust at regular intervals’"to ensure that they are appropriate;” Id. (quoting Bogert 3d § 684, at 147-48). In fulfilling his duties, a trustee is held to “the prudent investor rule,” which requires that he “invest and manage trust assets as a prudent investor would”; that is, by “exercising] reasonable care, skill, and caution,” and by “reevaluat[ing] the trust’s investments periodically as conditions change.” Bogert 3d § 684.

Additionally, pursuant to the Restatement (Third) of Trusts, a trustee is to “incur only costs that are reasonable in amount and appropriate .to the investment responsibilities of the trusteeship.” Restatement (Third) of Trusts § 90(c)(3); see also id. § 88. The Restatement further instructs that “cost-conscious management is fundamental to prudence in the investment function,” and should be applied “not only in making investments but also in monitoring and reviewing investments.” Id. § 90, cmt. b; see also id. § 88, cmt. a (“Implicit in a trustee’s fiduciary duties is a duty to be cost-conscious.”); Donahue v. Donahue, 182 Cal.App.4th 259, 273, 105 Cal.Rptr.3d 723 (2010) (reversing and remanding an award for attorneys’ fees incurred by a trustee because the trial court did not consider whether the trustee fulfilled his duty to be cost-conscious in incurring the fees). As the Uniform Prudent Investor Act observes: “Wasting beneficiaries’ money is imprudent. In devising and implementing strategies for the investment and management of trust assets, trustees are obliged to minimize costs.” Unif. Prudent Investor Act § 7.

It is beyond dispute that the higher the fees charged to a beneficiary, the more the beneficiary’s investment shrinks. As a simple example, if a beneficiary invested $10,000, the investment grew at a rate of 7% a year for 40 years, and the fund charged 1% in fees each year, at the end of the 40-year period the beneficiary’s investment would be worth $100,175. If the fees were raised to 1.18%, or 1.4%, the value of. the investment at the end of the 40-year period would decrease to $93,142 and $85,198, respectively. Beneficiaries subject to higher fees for materially identical funds lose not only the money spent on higher fees, but also “lost investment opportunity”; that is, the money that the portion of their investment spent on unnecessary fees would have earned over time. Tibble II, 2010 WL 2757153, at *37-38, 2010 U.S. Dist. LEXIS 69119, at *124-25. Pursuant to the aforementioned trust law principles, a trustee cannot ignore the power the trust wields to obtain favorable investment products, particularly when those products are substantially identical — other than their lower cost — to products the trustee has already selected.

The beneficiaries request “a new trial on the issue of whether [Edison] breached [its] fiduciary duties by providing as Plan investments during the limitations period mutual funds in a share class that was more expensive than other share classes that were available to the Plan.” (Citing Lam v. Univ. Of Haw., 40 F.3d 1551, 1554-55, 1566-67 (9th Cir. 1994) (remanding for trial after reversal of summary judgment)). The beneficiaries wrote that “[b]ecause [they] were precluded from presenting [the continuing-duty-absent-changed-circumstances] claims by the district court’s erroneous interpretation of the limitations statute, there is no record on which the Court can resolve this claim on appeal.” We agree that the record does not establish exactly what would have resulted from the application of the correct legal standard, and accordingly remand on an open record for the district court to consider these issues in light of the principles explicated by the Supreme Court and this opinion.-

V. Attorneys’ Fees and Costs

The beneficiaries also requested that we direct the district court “to reconsider an award of costs and attorney fees in light of the results of the trial on remand.” The beneficiaries had originally sought nearly $2.5 million in attorneys’ fees and nontaxable costs, and in response to the court’s order, sought a reduced amount of $407,277.30 in fees and $3,731.92 in costs. The district court held that even if the attorneys’ fees request was appropriate, it would be offset by the costs due to Edison as the prevailing party on the majority of cláims originally filed.

In determining that the beneficiaries’ original fee request should be drastically reduced, the district court expressed its skepticism concerning the importance of the beneficiaries’ partial victory. Considering the Supreme Court decision that followed, and our en banc decision in this case, we believe that this case has far greater importance than the district court believed it did at the time of its earlier fee determinations. Accordingly, we direct the district court to reconsider the fee issue in light of the significant amount of work that has been required to vindicate an important ERISA principle in our court and the Supreme Court.

CONCLUSION

We VACATE the district court’s decisions concerning the funds added to the Plan before 2001, and REMAND on an open record for trial on the claim that, regardless of whether there was a significant change in circumstances, Edison should have switched from retail-class fund shares to institutional-class fund shares to fulfill its continuing duty to monitor the appropriateness of the trust investments. The district court is also directed to reevaluate its fee determination in light of the Supreme Court’s decision and this court’s en banc decision.

      . Edison attempts to obscure this' clear statement with irrelevant specificity, noting that "Plaintiffs' appellate briefs also did not raise the argument ... that the district court’s summary judgment orders improperly barred plaintiffs from challenging Edison's monitoring of the pre-2001 mutual funds during the repose period, unless plaintiffs established that the funds underwent significant changes.” But, having lost at trial on, the merits of the "significant changes” issue, the beneficiaries argued simply that the district court should have allowed a claim that " 'the last action which constituted a part of the breach' — using retail class shares — occurred within six years.” That the'beneficiaries' later phrasing articulated both what the district court allowed (a significant changes theory) and what the district court rejected (a pure continuing duty to prudently monitor) does not show forfeiture of the latter argument. Indeed, it was specifically raised in the beneficiaries’ opening brief.

      . Our opinion identified the .statute as § 1113(a)(2), but quoted from and discussed § Í 113(2). Because there is no subsection (a)(2) in § 1113, the reference appeal's to have been in error, and Phillips' holding applies to § 1113(2).

      . The district court held that the beneficiaries' claims were governed by § 1113(1) because Edison did not produce undisputed evidence of the beneficiaries' actual knowledge of the alleged breaches, making § 1113(2) inapplicable. Tibble I, 639 F.Supp.2d at 1086. We affirmed, holding'that, “because the[] beneficiaries’ trial claims hinged on infirmities in the selection process for investments,” Edison’s contention that "mere notification that retail funds were in the Plan menu” was insufficieiit to satisfy the "actual knowledge” standard. Tibble III, 729 F.3d at 1121. The Supreme Court also applied § 1113(1). Tibble IV, 135 S.Ct. at 1827.

      . The funds Edison offered beneficiaries had expense ratios ranging from 0.03% to 2%. Tibble I, 639 F.Supp.2d at 1117.

      . The district court found that, for Edison’s six retail class funds that had institutional class funds available, each retail fund’s fees were 0.18% to 0.4% higher than the corresponding institutional funds’ fees over the 2001-2009 period. Tibble II, 2010 WL 2757153, at *8-14, 2010 U.S. Dist. LEXIS 69119, at *26-41.


source: Caselaw Access Project

author: SCHROEDER, Circuit Judge: KOZINSKI, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joel Leon THOMAS, Jr., Defendant-Appellant.
    No. 14-10427
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 15, 2016, San Francisco, California
    Filed December 20, 2016

      Florence M, Bruemmer (argued), Law Office of Florence M, Bruemmer PC, Anthem, Arizona; Anders V. Rosenquist, Ro-senquist & 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.
   Dissent by Judge KOZINSKI

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 mínimums 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 ease 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 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 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 semiautomatic handgun and ammunition. In Thomas’s car was another semiautomatic 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 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 certifícate 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 úse 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 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 ton 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, 104 S.Ct. 3380, 82 L.Ed.2d 599 (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.

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 mínimums, 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)(l)(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)(l)(C)(i). The parties in this case 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)(l)(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 mínimums, 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (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.

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)(l). 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. § 3Bl.l(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 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 mínimums. See 18 U.S.C. § 924(c) (1) (D) (ii). The mandatory míni-mums 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 whs 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 mínimums. See Valente, 961 F.2d at 134. Since the Guidelines are advisory, see Booker, 543 U.S. at 243-44, 125 S.Ct. 738, 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 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, 128 S.Ct. 586, 169 L.Ed.2d 445 (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, 128 S.Ct. 586. 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, 127 S.Ct. 2456, 168 L.Ed.2d 203 (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)(l)(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, 127 S.Ct. 2456 (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 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, 127 S.Ct. 2456. 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 mínimums would be contrary to congressional intent that the Guidelines sentence reflect the objectives of 18 U.S.C. § 3653(a). See Rita, 551 U.S. at 347-51, 127 S.Ct. 2456.

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 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 mínimums 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 mínimums. We must conclude that the sentence imposed was therefore not substantively unreasonable.

AFFIRMED.

KOZINSKI, Circuit Judge,

dissenting in part:

Joel Leoh 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.

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 1206. 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 1205. 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 mínimums, but he did have discretion as to the Guidelines portion of the sentence. United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 1205-06 (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, 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] senténce ... 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 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, 127 S.Ct. 2456, 168 L.Ed.2d 203 (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.


author: HARTZ, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF OTERO, Defendant-Appellant, and State of New Mexico, Defendant. Pacific Legal Foundation, Amicus Curiae.
    No. 15-2210
    United States Court of Appeals, Tenth Circuit.
    FILED December 8, 2016

      Dori E. Richards (A. Blair Dunn, with her on the briefs), Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, for Appellant.
    David C. Shilton (Nicholas L. Pino, USDA Office of General Counsel, Albuquerque, New Mexico, John C. Cruden, Assistant Attorney General, and Andrew A. Smith, with him on the brief), Environment and Nat. Res. Div., U.S. Department of Justice, Washington, D.C., for Appellee.
    John M. Groen and Anthony L. Fran-gote, Pacific Legal Foundation, Sacramento, California, filed an Amicus Curiae brief in support of Appellant.
    Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
   HARTZ, Circuit Judge.

A New Mexico statute and a resolution adopted by the Otero County Board of County Commissioners purported to authorize the Board to mitigate fire danger in the Lincoln National Forest without first obtaining permission from the U.S. Forest Service. The United States obtained a judgment from the United States District Court for, the District of New Mexico invalidating the statute and the resolution. The Board appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Property Clause of the United States Constitution authorizes the federal government to promulgate, regulations governing use of national forest lands; and under the ' Constitution’s Supremacy Clause and binding precedent, those regulations prevail over any contrary state or local law.

I. BACKGROUND

In recent years New Mexico has suffered from major .fires originating on federal land within the-state. Apparently in response to a devastating fire that consumed many homes in the city of Los Alamos, the state legislature in 2001 enacted a statute authorizing self-help by local communities. Recognizing “inaction on the part of the forest service to appropriately reduce, if not remove, the risk to the lives and property of the citizens of New Mexico,” the statute enabled “a board of county commissioners for a county in which a disaster has been declared ... [to] take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees within the area of the disaster” after, among other things, consulting with the Forest Service. N.M. Stat. Ann. § 4-36-ll(A)(2), (C) 1978.

Fire danger from federal land was a significant concern in Otero County, where over 75% of the land is owned by the United States. On May 6, 2011, the Sacramento Ranger District issued a letter “closing the Lincoln National Forest due to the drought and extremely high fire risk.” Cty. Resolution, Aplt. App., Vol. I at 30. The Board followed suit on May 23, passing a resolution declaring “a state of emergency and disaster ... in and around the communities and watersheds in the Sacramento Mountains.” Id. at 31. "The resolution noted the County’s statutory authority to take any necessary detion to remove hazardous vegetation within the area after consulting with the Forest Service.

The Board retained a consultant to prepare a plan to mitigate the danger. The plan proposed to “restore” 69,000 acres in the Lincoln National Forest by extracting “small and medium size ... standing live and dead trees and wood materials.” Dist. Ct. Summ. J. Opinion, Aplt. App., Vol. II at 388 (Dist. Ct. Op. at 4) (internal quotation marks omitted). A modified plan called for the “treatment of 1,200 to 1,500 acres ... in an area within Mexican Spotted Owl (MSO) habitat with MSO present in the area.” Dist. Ct. Op. at 8 (internal quotation marks omitted). The Board decided to implement the plan and notified the Forest Service. The Forest Service did not approve the proposed measures.

When the 'Board indicated that it was going to execute the plan anyway, the United States sued the Board and the State of New Mexico in federal court seeking a declaration that the resolution and its enabling statute were preempted by conflicting federal law. The United States also sought to enjoin public officials from implementing the plan oh federal lands without prior approval from the Forest Service. It relied on federal regulations requiring Forest Service consent before anyone could cut, damage, or remove trees or brush from a national forest.

The district court granted summary judgment to the United States. The court first ruled that because the threatened injury (actions on federal land without Forest Service approval) was impending at the time of suit, the United States had standing and its claims were ripe for adjudication. On the merits the court held that “the Property Clause grants the federal government plenary power over federal lands, and consequently ... the Tenth Amendment does not reserve an exclusive sovereign right to New Mexico to regulate federal lands in contravention of federal law.” Id. at 9. The state statute and local resolution thus were preempted under the Supremacy Clause, as they conflicted with federal law. The court rejected the State’s suggested construction of the statute to make it consistent with federal law, saying that the suggested construction was contrary to “the statute’s plain and unambiguous language [and] its legislative intent.” Id.

The Board, -but not the State, appeals; It does not challenge the district court’s rulings on standing and ripeness. And, consistent with the position it took in the district court, it offers no argument that the resolution or statute can be read in a manner consistent with federal law. It frames the sole issue on appeal as: “[D]oes the Property Clause of the United States Constitution so thoroughly preempt state power that a state may not, under any circumstances, remove a deadly and destructive nuisance from National Forest lands even where the United States refuses or fails to remove that danger itselfl?]” Aplt. Reply Br. at 1.

II. DISCUSSION

There is no dispute that a local government can ordinarily exercise its police powers to mitigate fire danger within its territorial boundaries. But a federal regulation promulgated by the Department of Agriculture requires permission . of the Forest Service before anyone can “[c]ut[ ] or otherwise damag[e] any timber, tree, or other forest product” in a national forest. 36 C.F.R. § 261.6(a) [ (2016) ]. The Board has not questioned the statutory authority to promulgate the regulation. The issue before us is solely one of constitutional power. The constitutional authority invoked by the United States is the Property Clause, which states: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. Const. art. IV, § 3, cl. 2.

Although the United States has title to the Lincoln National Forest, the Board contends that the federal government’s power over that land under the Property Clause must be limited. It says that the federal regulation at issue here reaches beyond the proper scope of the Property Clause because it “deprives the State of New Mexico and Otero County of the ability to protect the health, safety and welfare of their citizens ... , skewing the ‘healthy balance of power’ between the States and the Federal government.” Aplt. Br. at 33. According to the Board, “It is both troubling and nearly inconceivable ... that the federal government would have unfettered and , absolute authority over lands not expressly proclaimed by the Constitution as necessary for federal governance.” Id. at 23-24. In particular, it says, the Property Clause does not grant the federal government “absolute, unfettered plenary power” to prohibit the States from taking measures they deem necessary “to protect their citizens from impending harm.” Id. at 40-41. This power not being conveyed to the federal government, the argument continues,' it must be reserved to the States under the Tenth Amendment. See U.S. Const, amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively,’or tó the people.”). Thus, when, as in this case, “the United States fails or refuses to remove from federal lands a condition that poses an imminent threat of extreme danger to the life and property of a state’s citizens, ... the Tenth Amendment reserves to the state powers sufficient to take reasonable, minimally invasive steps to abate the dangerous condition.” Aplt. Reply Br. at 7.

Binding precedent requires us to reject the Board’s argument. The Supreme Court, followed by this court, has declared that the Property Clause gives the federal government plenary power, including legislative and police power, over, federal property. Although state and local governments can ordinarily exercise their police powers, over federal land within their boundaries, those powers must yield under the Supremacy Clause when they conflict with federal law under the Property Clause.

We begin with the Supreme Court’s decision in Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976), which reviewed the constitutionality of the Wild Free-Roaming Horses and Burros Act (Wild Horses Act), 16 U.S.C. §§ 1331-1340. Congress passed the Act “to protect all unbranded and unclaimed horses and burros, on public lands of the United States” and specified that “all such horses and burros on the public lands administered by the Secretary of the Interior ... or by the Secretary of Agriculture ... are committed to the jurisdiction of the respective Secretaries.” Kleppe, 426 U.S. at 531, 96 S.Ct. 2285 (internal quotation marks omitted).. Seeking to exercise control over wild horses and burros on federal lands, the State of New Mexico sought a declaration that the Act was unconstitutional. See id. at 534, 96 S.Ct. 2285. It argued in part that the Act could not be sustained under the Property Clause because “[t]he statute is aimed at protecting the wild horses and burros, not at protecting the land they live on.” Id. at 535, 96 S.Ct. 2285 (internal quotation marks omitted).

In rejecting the State’s argument, the Court described the scope of the Property Clause in broad terms. It stated that “Congress exercises the powers both of a proprietor and of a legislature over the public domain” and that “even over public land within the States, [t]he general government doubtless has a power over its own property analogous to the police power of the several states.” Id. at 540, 96 S.Ct, 2285 (internal quotation marks omitted). To be sure, the Court observed that “the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved.” Id. at 539, 96 S.Ct. 2285. The uncertainty to which it referred, however, appears to concern not power over federal land but power over property outside federal land. Two paragraphs earlier the Court had discussed Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed, 260 (1897), which recognized authority to regulate “fences built on private land adjoining public land when the regulation is for the protection of the federal property.” Kleppe, 426 U.S. at 538, 96 S.Ct. 2285. Although the Court quoted language from Cornfield noting limits on federal power, it concluded by saying: “Cornfield contains no suggestion of any limitation on Congress’ power over conduct on its own property, its sole message is that the power granted by the Property Clause is broad enough to reach beyond territorial limits,” Id. (emphasis added). Indeed, the Court said that it had “repeatedly observed that [t]he power over the public land thus entrusted to Congress is without limitations.” Id. at 539, 96 S.Ct. 2285 (emphasis added) (internal quotation marks omitted). It noted that in a prior decision the Court had said “that the Property Clause gives Congress the power over the public lands ‘to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in themId. at 540, 96 S.Ct. 2285 (quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 61 L.Ed. 791 (1917)). The Court upheld the Wild Horses Act as falling within “the complete power that Congress has over public lands,” which “includes the power to regulate and protect the wildlife living there.” Id. at 540-41, 96 S.Ct. 2285 (internal quotation marks and footnote omitted).

Kleppe confronted and rejected the argument (an argument quite similar to one made by the Board) “that if we approve the Wild [Horses] Act as a valid exercise of Congress’ power under the Property Clause, then we have sanctioned an impermissible intrusion on the sovereignty, legislative authority, and police power of the State.” Id. at 541, 96 S.Ct. 2285. The Court’s response was short and categorical: “The Federal Government does not assert exclusive jurisdiction over the public lands in New Mexico, and the State is free to enforce its. criminal and civil laws on those lands. But where those state laws conflict with .,. legislation passed pursuant to the Property Clause, the law is clear: The state laws must recede.” Id. at 543, 96 S.Ct. 2285.

In Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002), this circuit applied Kleppe’s reasoning to another Tenth Amendment challenge to a federal regulation based on the Property Clause. The challenge arose from a disagreement between the State of Wyoming and the federal government over how to address a disease that was afflicting elk on federal lands and posing a threat to domestic cattle. See id. at 1218, 1219-22. Wyoming filed suit against the United States and the Secretary of the Interior claiming that the federal government had interfered with its “ ‘sovereign right’ to manage wildlife within its borders” when the federal government refused to allow the State to vaccinate elk on federal land. Id. at 1222.

Wyoming challenged the federal government’s’ actions on the ground that the Tenth Amendment reserves to the States “the right to manage wildlife on [federal land] to protect its own wildlife and domestic livestock.” Id. at 1224. We observed that although the States historically have possessed broad powers over wildlife (even on federal lands), the Supreme Court had ruled that those powers must yield under the Supremacy Clause when they conflict with federal law enacted under the Property Clause. See id. at 1226-27. We repeated the Supreme Court is declaration that “Congress’ power [over federal land] is ‘plenary,’” id. at 1227 (quoting Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987)), and we noted Kleppe’s holding that the Property Clause allows Congress to regulate and protect wildlife living on federal lands, see id. In our view, “the point [was] painfully apparent that the Tenth-Amendment does not reserve to the State of Wyoming the right to manage wildlife, or more specifically vaccinate elk, on [federal land].’” Id.; see also id. at 1226 (“If the Constitution delegates to Congress the power to exercise management authority over federal land, including the wildlife thereon, ‘the Tenth Amendment expressly disclaims any reservation of that power to the States.’ ” (quoting New York v. United States, 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992))).

The Board argues that these declarations are based on a misunderstanding of constitutional history and are nonbinding dicta because they did not address the compelling local interests at stake in this case. We are not persuaded. Perhaps the statements about the unlimited power of the federal government over its lands could be considered dicta because they are somewhat broader than necessary to resolve the disputes before the courts. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) (“It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they, might be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision.”); cf. Bryan A. Garner et al., The Law of Judicial Precedent, 61 (2016) (noting “the degree of judgment that goes into classifying a court’s reasoning as holding or dictum”). But each statement was fully considered, went to the core of the issue under review, and was the explicit basis for the decision. See Garner at 51 (“The distinction between a holding and a dictum ... [depends] on whether the solution of the particular point was more or less necessary to determining the issues involved in the case.”) And the statements by the Supreme Court are entitled to great weight even if technically dicta; we have regularly followed statements of the Court that clearly.were not holdings. See, e.g., Peterson v. Martinez, 707 F.3d 1197, 1209-11 (10th Cir. 2013) (following dictum in Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715 (1897), in part because dictum had not been “enfeeble[d]” by recent jurisprudence); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996); see generally Garner at 69-70 (“[N]ot all dicta are created equal. Intermediate courts typically treat higher courts’ dicta— those in vertical precedents — with greater respect than their own, not only because of the position of the higher court, but also because today’s dicta are an indication of what'may well be tomorrow’s binding precedent.” (footnote omitted)). We have no authority to reject the reasoning behind a Supreme Court holding — whether ' based on questionable logic or history — and we see nothing in Supreme Court opinions suggesting that the Court might limit its precedents declaring that the federal power at issue here is “plenary,” Granite Rock, 480 U.S. at 581, 107 S.Ct. 1419, and “without limitations,” Kleppe, 426 U.S. at 539, 96 S.Ct. 2285 (internal quotation marks omitted).

The district court properly rejected the Board’s argument that state law can escape preemption if the general purposes behind state and federal law diverge. It observed that the Supreme Court has “held that ... the purpose of the laws, whether parallel or divergent, is not relevant to the preemption inquiry.” Dist. Ct. Op. at 46. As the Supreme Court said in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), it “has, on the one hand, sustained state statutes having objectives virtually identical to those of federal regulations and has, on the other hand, struck down state statutes where the respective purposes were quite dissimilar,” id. at 142, 83 S.Ct. 1210 (citations omitted). “The test,” it said, “of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives,” Id. Thus, it makes no difference that the federal purpose may be, say, protection of the habitat of an endangered or threatened species whereas the Board’s interest is protection of human life and home. When different governments differ in their assessment of danger, one must prevail, and the Supremacy Clause says that in these circumstances it must be the United States. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.”). As the Supreme Court said in Kleppe, “A different rule would place the public domain of the United States completely at the mercy of state legislation.” 426 U.S. at 543, 96 S.Ct. 2285 (internal quotation marks omitted).

III. CONCLUSION

We AFFIRM the decision of the district court. The New Mexico statute and the County resolution must yield to federal law regarding conduct on federal land. In its amicus curiae brief in support of the Board, Pacific Legal Foundation argues that the County can hold the Forest Service liable under federal common law for maintaining a public nuisance (extreme fire risk) on federal land. But that issue is not properly before us, because it has not been raised by a party. See Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997) (declining to address previously unraised- argument in amicus curiae brief because framing of the issues on appeal is “a prerogative more appropriately restricted to the litigants”). For the same reason, we do not address whether the Board may obtain relief under the Administrative Procedure Act (APA). See Wyoming, 279 F.3d at 1239 (State may pursue relief under APA regarding federal government’s denial of State’s request to vaccinate elk on federal land). The sole issue before us is whether federal law preempts the state statute and County resolution. We hold that it does.

      . The statute provides in full:
      A. The legislature finds that:
      (1)numerous citizens and government officials in the state of New Mexico have repeatedly petitioned the United States forest service both collectively and individually at public meeting's, by correspondence and by telephone to request that the forest service take appropriate action to remove or eliminate the conditions that have created a state of emergency caused by a present risk to the lives and property of citizens in and adjacent to national forests within New Mexico;
      (2) all the petitions have for all practical purposes been either ignored or discounted by the United States forest service resulting only in what can be reasonably characterized as inaction on the part of the forest service to appropriately reduce, if not remove, the risk to the lives and property of the citizens of New Mexico;

      (3) because the United States forest service has failed to exercise its responsibilities as a sovereign to protect the lives and property of the citizens of New Mexico and because it is a fundámental principle under the laws of any just society that the persistent failure of a sovereign to fulfill such obligations constitutes grounds for the forfeiture of jurisdictional supremacy, such a forfeiture must hereby be recognized and declared; and
      (4) because of recognition and declaration of this forfeiture of jurisdictional supremacy, a jurisdictional vacuum has been created that requires the state of New Mexico to acknowledge its obligations as a sovereign power to protect the lives and property of its citizens and consequently to authorize any action it presently deems necessary to fill the vacuum created by the federal government by assuming jurisdiction to reduce to acceptable levels, if not remove, the threat of catastrophic fires posed by present conditions in national forests within its borders.
      B. The legislature declares" a disaster within those areas of the national forests of New Mexico that suffered severe fire damage, as determined by the local board of county commissioners, where large amounts of forest undergrowth have created the potential for damaging fires in the future. The legislature also declares that the disaster is of such magnitude that the police power of the state should be exercised to the extent necessary to provide the resources and services that will end the disaster and mitigate its effects.
      C. After consulting with the state forester and the regional United States forester, taking surveys, holding those public hearings as may be necessary and developing a plan to mitigate the effects of the disaster, a board of county commissioners for a county in which a disaster has been declared pursuant to Subsection A of this section may take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees within the area of the disaster. A county may enter into an agreement with a contractor, licensee or other agent to carry out the purposes of this subsection.
      N.M. Stat. Ann. § 4-36-11 (emphasis added).

      . The relevant provision of the resolution provides:
      BE IT FURTHER RESOLVED that the Board of County Commissioners hereby formally notifies State and Federal officials that pursuant to NMSA 1978 § 4-36-11 C. it is empowered to, after consulting with the State Forester and the Regional United States Forester, taking surveys, holding those public hearings as may be necessary and developing a plan to mitigate the effects of the disaster, as a county in which a disaster has been declared pursuant to Subsection A of NMSA 1978 § 4-36-11 may taire such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees within the area of the disaster. Otero County may also enter into an agreement with a contractor, licensee or other agent to carry out the purposes of NMSA 1978 § 4-36-11.
      Cty. Resolution, Aplt. App., Vol. I at 31.

      . The County may have a right to take action when the fire danger is immediate. The government has suggested in this case that self-help is permitted in an emergency. See Aplee. Fed. R. App. P. 28(j) Letter of 9/28/16 at 1-2 (under federal regulation, "the County could respond to an actual wildfire emergency without prior authorization so long as it applies for a special use permit at the earliest opportunity”); cf. McDonald, v. City of Chicago, 561 U.S. 742, 767, 130 S.Ct. 3020, 177 L.Ed,2d 894 .(2010) ("Self-defense is a basic right, recognized by many legal systems from ancient times to'the present day..'.'.”); United States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014) ("A person may resort to self-defense if he reasonably believes that he is in imminent danger of death or great bodily harm.”). We express no .view on the government’s suggestion, The .important point for present purposes is that any exception to the broad sweep of the federal regulation must come from federal, not state or local, law.