     Case: 16-10144      Document: 00513910255         Page: 1    Date Filed: 03/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 16-10144                                     FILED
                                  Summary Calendar                             March 14, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DEUNDRAE LYDELL MILLER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-376-2


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       A jury found Deundrae Lydell Miller guilty of four counts of interference
with commerce by robbery in violation of 18 U.S.C. §§ 2 and 1951 (“Hobbs Act”
robbery); one count of attempted interference with commerce by robbery in
violation of Sections 2 and 1951; one count of using, carrying, and brandishing
a firearm during and in relation to a crime of violence in violation of Sections
2 and 924(c)(1)(A)(ii); four counts of using, carrying, and brandishing a firearm


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-10144

during and in relation to a crime of violence in violation of Sections 2 and
924(c)(1)(C)(i); and one count of felon in possession of a firearm in violation of
Sections 922(g)(1) and 924(a)(2). The convictions stemmed from robberies
occurring in 2014, specifically on June 2, 4, 7, 19, and 24.
      Miller raises two issues on appeal. First, he argues that the district court
abused its discretion in failing to grant a mistrial during his joint trial with a
non-testifying co-defendant, Jesse Lee Bell. Miller moved for a mistrial after
a Government witness testified about a statement made by Bell that
inculpated Miller in the robbery occurring on June 2, 2014. Miller bases his
argument on Bruton v. United States, 391 U.S. 123, 126 (1968), in which the
Supreme Court held that the Sixth Amendment’s Confrontation Clause is
violated when, during a joint trial, a non-testifying co-defendant’s confession
is used to inculpate the defendant. Miller contends that the sole evidence of
his presence at the June 2 robbery was the testimony concerning Bell’s
statement.
      Because the Government concedes constitutional error, we address only
whether the error was harmless beyond a reasonable doubt “in light of the
other evidence presented at trial.” United States v. Powell, 732 F.3d 361, 379
(5th Cir. 2013). The testimony regarding Bell’s statement was brief and offered
by one of the 26 witnesses presented at trial. Cf. United States v. Schmick, 904
F.2d 936, 943–44 (5th Cir. 1990). The district court immediately instructed
the jurors to disregard the statement completely. Cf. Bruton, 391 U.S. at 124–
25. Disregarding Bell’s statement, there was ample evidence to convict Miller
of the June 2, 2014, robbery of a Whataburger restaurant, including, among
other things, security video and witness testimony. See Powell, 732 F.3d at
379–80. In particular, the evidence showed someone with Miller’s features
carrying a gun and committing the June 2 robbery. It also established a



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                                   No. 16-10144

pattern of Miller committing similar robberies with Bell in June 2014. In fact,
Miller does not challenge the evidence accepted by the jury to support his
convictions for the four other robberies he committed with Bell at a
Whataburger restaurant on June 4, 2014; at a Whataburger restaurant on
June 7, 2014; at a Jack-in-the-Box restaurant on June 19, 2014; and at a
Whataburger restaurant on June 24, 2014.          In light of the foregoing, the
district court did not abuse its discretion in denying Miller’s motion for a
mistrial. See United States v. Ebron, 683 F.3d 105, 128 (5th Cir. 2012).
      Regarding Miller’s second claim, he argues that that his Hobbs Act
robbery offenses do not qualify as crimes of violence under Section 924(c); that
the Section 924(c) counts in his superseding indictment thus failed to state an
offense; and that the district court should have dismissed the five Section
924(c) counts and vacated the jury verdicts as to those counts. His arguments
rest on the following, both of which he must show to prevail: (1) the “crime of
violence” definition in Section 924(c)(3)(B) is unconstitutionally vague in light
of Johnson v. United States, 135 S. Ct. 2551 (2015), and (2) Section 1951(a)
robbery offenses are not categorically crimes of violence under Section
924(c)(3)(A) because they can be accomplished in ways that do not require
violent physical force.
      We review Miller’s claims for plain error. See United States v. Blevins,
755 F.3d 312, 319 (5th Cir. 2014). We recently held that 18 U.S.C. § 16(b)
remains constitutional in the wake of Johnson. United States v. Gonzalez-
Longoria, 831 F.3d 670, 672 (5th Cir. 2016) (en banc), petition for cert. filed,
(Sept. 29, 2016) (No. 16-6259). We agree with a later non-precedential opinion
that because Section 16(b) and Section 924(c)(3)(B) are materially identical,
there is no merit in arguing that Section 924(c)(3)(B) was rendered
unconstitutional by Johnson. United States v. Davis, ___ F. App’x ____, 2017



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                                  No. 16-10144

WL 436037, at *2 (5th Cir. Jan. 31. 2017). Although the Supreme Court
recently granted certiorari in Lynch v. Dimaya, 137 S. Ct. 31 (2016), to consider
whether Section 16(b) is unconstitutionally vague in light of Johnson, our own
precedent controls unless and until that precedent is altered by a decision of
the Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157–58 (5th Cir.
1986).
         We   also   recently   held   that   Hobbs    Act     robbery     satisfies
Section 924(c)(3)(A)’s crime-of-violence definition. United States v. Buck, 847
F.3d 267, 274–75 (5th Cir. 2017). Miller’s argument as to Section 924(c)(3)(A)
is foreclosed.
      In light of the foregoing, Miller cannot show error, plain or otherwise, in
the characterization of his robbery offenses as crimes of violence under
Sections 924(c)(3)(A) or (B).
      AFFIRMED.




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