    Case: 17-10822   Document: 00514695402    Page: 1   Date Filed: 10/24/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                               No. 17-10822             United States Court of Appeals
                                                                 Fifth Circuit

                                                               FILED
                                                        October 24, 2018
                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                      Clerk

                 Plaintiff–Appellee,

versus

NATHANIEL BOWENS,

                 Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Nathaniel Bowens was tried and convicted of various crimes committed
during robberies of wireless-telecommunications stores in the Dallas-Fort
Worth area. On appeal, Bowens raises three issues. First, he contends that
the evidence was insufficient to support his conviction of using a firearm in
furtherance of Hobbs Act robbery under an aiding-and-abetting theory of
liability (count four). Second, Bowen maintains that we should vacate his
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                                  No. 17-10822
sentence on his subsequent 18 U.S.C. § 924(c) conviction (count six) because
the evidence was insufficient to support his conviction on the predicate § 924(c)
conviction (count four). Third, he asserts, contrary to circuit precedent, that
Hobbs Act robbery does not qualify as a crime of violence (“COV”) predicate,
which is required for his § 924(c) convictions. We find no error and affirm.

                                        I.
      Bowens was convicted of conspiracy to interfere with commerce by
robbery, in violation of 18 U.S.C. § 1951(a) (2012) (count one); interference with
commerce by robbery, in violation of 18 U.S.C. §§ 2 and 1951(a) (counts three
and five); using, carrying, and brandishing a firearm during and in relation to,
and possessing and brandishing a firearm in furtherance of, a COV, in viola-
tion of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii) (count four); and using, carrying, and
brandishing a firearm during and in relation to, and possessing and brandish-
ing a firearm in furtherance of, a COV, in violation of 18 U.S.C. §§ 2 and
924(c)(1)(C)(i) (count six).

      Bowens and others robbed several retail stores in the Dallas-Fort Worth
area between October 2015 and December 2016. Two men would enter a
wireless-telecommunications store when there were likely to be few customers.
The robbers would use masks and gloves to cover their faces and hands.
Because of this, witnesses at the various robberies were only able to identify
the individuals as African-American males. During the robberies, at least one
of the perpetrators would carry a handgun, and they would generally move any
persons toward the back of the location. The robbers would then fill trash bags
with inventory, including mobile smartphones, tablets, and other electronic
devices, from a store room in back. They would also steal money from cash
registers, then exit through the rear door, where a vehicle would be waiting.

      The specific details of only one robbery are relevant on appeal. Bowens
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                                      No. 17-10822
and an associate, Keon Blanks, robbed a T-Mobile store in Fort Worth. Blanks
testified about his role and claimed Bowens “had the gun,” while he (Blanks)
served as “the bagger.” When shown a surveillance photograph taken during
the robbery, Blanks identified himself as the man wearing a white shirt and
Bowens as the man in a black shirt. The photo shows the man in a black shirt
holding what seems to be a firearm, while an object, or gesture, in the shape of
a handgun appears under the shirt of the man in white. 1

       Although it remains unclear whether both defendants possessed a gun
during the robbery (and exactly how many firearms were involved), the jury
found Bowens guilty on all five counts. The district court sentenced him to 400
months: 16 months on counts one, three, and five; 84 months on count four,
consecutive to the sentences imposed for counts one, three, and five; and 300
months on count six, consecutive to the sentences imposed for counts one,
three, four and five.

                                            II.
       Bowens asserts, inter alia, that the evidence was insufficient on count
four. Because Bowens properly preserved his challenge to sufficiency by mov-
ing for judgment of acquittal, we review this issue de novo. See, e.g., United
States v. Read, 710 F.3d 219, 226 (5th Cir. 2012). In “reviewing the sufficiency
of the evidence, [we] view[ ] all evidence . . . in the light most favorable to the



       1 Based on the evidence, there is some confusion as to whether both defendants pos-
sessed a firearm during the robbery. The store manager, Adrian Ramirez, initially identified
Blanks (“the taller, skinnier one” wearing a white shirt) as the man that he remembered
possessing the handgun. Ramirez, however, later revised his testimony when shown surveil-
lance photos. Nonetheless, when asked whether he thought “their guns were real,” Ramirez
replied, “Yes.” Additionally, on cross-examination, Bowens’s trial counsel asked Blanks,
“And you’re aware that every one of your codefendants puts the gun with you. Isn’t that—
Are you aware of that?” Blanks answered, “Somewhat.” The attorney then asked, “Some-
what. Okay. But yet you still deny that you’ve ever owned a gun or ever had access to a gun.
Isn’t that correct?” Blanks answered, “That is correct.”
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[g]overnment with all reasonable inferences to be made in support of the jury’s
verdict.” United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997) (citation
omitted). “The evidence is sufficient to support a conviction if a rational trier
of fact could have found the essential elements of the crime beyond a reasona-
ble doubt.” Id. (citation omitted). We do not reevaluate “the weight of the
evidence or . . . the credibility of the witnesses.” 2

       Bowens also contends that the Hobbs Act robbery charges (counts three
and five) may not serve as the COV predicates for his § 924(c) convictions
(counts four and six). Because he first raised this issue as part of a motion to
dismiss, it was properly preserved for appeal, so we review it de novo. 3

                                               III.
       Bowens was convicted of using, carrying, and brandishing a firearm dur-
ing and in relation to, and possessing and brandishing a firearm in furtherance
of, a COV, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii) (count four). In this
case, the COV predicate was Hobbs Act robbery, codified at 18 U.S.C. § 1951(a),
which makes it a federal crime, inter alia, to “obstruct[], delay[], or affect[]
commerce or the movement of any article or commodity in commerce, by rob-
bery.” 4 Relatedly, 18 U.S.C. § 2 provides that any individual who “aids” or
“abets” an offense against the United States is liable as a principal. As noted


       2 United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005) (quoting United
States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)).
       3 See United States v. Flores-Vasquez, 641 F.3d 667, 669 (5th Cir. 2011) (“This court
reviews de novo the characterization of a prior offense as a [COV].”); United States v. Jen-
nings, 195 F.3d 795, 797 (5th Cir. 1999) (“Since the issue of whether a crime constitutes a
[‘COV’] is a matter of statutory interpretation, we review this decision de novo . . . .”); see also
United States v. Credit, 95 F.3d 362, 364 (5th Cir. 1996).
       4 The statute defines robbery, in relevant part, as “the unlawful taking or obtaining of
personal property from the person or in the presence of another, against his will, by means
of actual or threatened force, or violence, or fear of injury, immediate or future, to his person
or property . . . .” 18 U.S.C. § 1951(b)(1).
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                                       No. 17-10822
in Standefer v. United States, 447 U.S. 10, 20 (1980), “[w]ith the enactment of
[§ 2], all participants in conduct violating a federal criminal statute are ‘princi-
pals.’ As such, they are punishable for their criminal conduct; the fate of other
participants is irrelevant.”

                                              A.
       The crux of Bowens’s claim is that he cannot be guilty of count four on
an aiding-and-abetting theory because he was the only person to use, carry, or
brandish a firearm during the robbery. He correctly asserts that “[o]ne cannot
aid or abet himself.” United States v. Shear, 962 F.2d 488, 495 n.10 (5th Cir.
1992).

       In response, the government highlights circuit caselaw demonstrating
that it was not required to prove who was the principal actor. “In a prosecution
for aiding and abetting a crime, the [g]overnment need not identify a specific
person or group of individuals as the principal.” 5 Accordingly, the government
also asserts that “rather than instruct the jury to determine who was the prin-
cipal gunman, it instructed the jury on an aiding and abetting theory, which
required the government to prove only that ‘some person’ used a gun in further-
ance of the robbery.” Consequently, “the government did not, in its closing
argument, ask the jury to find that Bowens specifically carried the gun during
the robbery.”

       A review of this circuit’s pattern jury instructions supports the govern-
ment’s position. To convict on count four, the jury was required to find the



       5 United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996) (citation omitted); see also
United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982) (“Proving . . . that a specific
person is the principal is not an element of the crime of aiding and abetting. The identity of
the principal need not be established . . . . The prosecution need only prove that the substan-
tive offense [has] been committed by someone and . . . the defendant aided and abetted him.”);
Hendrix v. United States, 327 F.2d 971, 975 (5th Cir. 1964)).
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                                       No. 17-10822
following four elements beyond a reasonable doubt:
       First: That the offense of using, carrying, and brandishing a fire-
       arm during and in relation to, and possessing and brandishing a
       firearm in furtherance of a crime of violence, as charged in [c]ount
       [f]our, was committed by some person in the course of committing
       the offense of [i]nterference with [c]ommerce by [r]obbery, as al-
       leged in [c]ount [t]hree;
       Second: That the defendant associated with the criminal venture;
       Third: That the defendant purposefully participated in the crim-
       inal venture; and
       Fourth: That the defendant sought by action to make that venture
       successful.
The government presented evidence that was more than sufficient to establish,
beyond a reasonable doubt, each of the elements comprising count four.

       With respect to the first element, evidence demonstrated that “some per-
son” used and brandished a firearm while interfering with commerce by rob-
bery. Bowens’s co-conspirator, Keon Blanks, testified that he and Bowens
robbed a T-Mobile store on October 5, 2015. Blanks further maintained that
during the robbery “Mr. Bowens had the gun” and that he (Blanks) “was the
bagger.” Surveillance photos from the robbery show Bowens (in a black shirt)
holding what seems to be a firearm, while an object or gesture that looks like
a handgun appears under Blanks’s white shirt. It remains unclear whether
both defendants used, carried, and brandished a firearm during the robbery,
but as the government correctly notes, viewed in the light most favorable to
the verdict, “a reasonable juror could easily have concluded beyond a reasona-
ble doubt that ‘the offense of using, carrying, and brandishing a firearm . . . in
furtherance of a [COV] . . . was committed by some person in the course of’” the
robbery. 6


       6Bowens also asserts that “the Supreme Court recently refined the scope of aiding
and abetting [liability] under § 924(c).” In Rosemond v. United States, 572 U.S. 65, 67 (2014),
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                                       No. 17-10822
       Concerning the second element of count four—that the defendant asso-
ciated with the criminal venture—Bowens concedes on appeal that he was
involved in the October 5, 2015, robbery. This is supported by sufficient evi-
dence, including testimony from Blanks and Ramirez, as well as surveillance
photos from inside the store.

       Finally, with respect to the last two elements—purposeful participation
and seeking by action to make the venture successful—the evidence also ade-
quately supports the jury’s finding. Bowens and Blanks purposely entered the
store with the intent to steal inventory, including several brand-new cell
phones. A weapon was used by either one or both to obtain the merchandise
without paying for it, and both, at one point or another, carried a bag full of
stolen goods.

       Ultimately, Bowens’s theory—admitting that he was the principal of the
crime for which he was convicted to avoid liability as an accomplice—is too
clever by half. Viewed in the light most favorable to the verdict, evidence was
more than sufficient to sustain the jury’s finding, beyond a reasonable doubt,
that Bowens was guilty of aiding and abetting the offense of using a firearm in
furtherance of Hobbs Act robbery.




the Court held that “the [g]overnment makes its case by proving that the defendant actively
participated in the underlying drug trafficking or violent crime with advance knowledge that
a confederate would use or carry a gun during the crime’s commission.” Here, and unlike in
Rosemond, Bowens was fully aware that a gun would be used during the commission of the
offense, and “[t]he jury . . . could infer [intent] from [Bowens’s] advance knowledge that the
plan included a firearm.” Id. at 79. Furthermore, the Rosemond Court maintained that “for
purposes of aiding and abetting law, a person who actively participates in a criminal scheme
knowing its extent and character intends that scheme’s commission.” Id. at 77. Thus, be-
cause Bowens purposefully facilitated or encouraged the use of a firearm and had “advance
knowledge of [its] presence,” the evidence was sufficient to support the jury’s finding on the
first element. Id. at 69, 81.
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                                       No. 17-10822
                                              B.
       Section 924(c)(1)(C)(i) states, “In the case of a second or subsequent
conviction under this subsection, the person shall . . . be sentenced to . . . not
less than 25 years . . . .” Bowens maintains that if the evidence was insuffi-
cient to support his conviction on the predicate § 924(c) offense (count four),
then we must find that this sentencing enhancement was improperly applied
to his conviction on count six. Because, however, the evidence was more than
sufficient on count four, the sentence under count six was properly enhanced. 7

                                              IV.
       Bowens contends that Hobbs Act robbery, see 18 U.S.C. § 1951(a), (b)(1),
does not qualify as a COV predicate as defined in § 924(c)(1)(A). 8 The term
COV is defined in § 924(c)(3)(A), which “contains both an elements clause and
a residual clause.” United States v. Davis, 903 F.3d 483, 485 (5th Cir. 2018)
(per curiam), petition for cert. filed (Oct. 3, 2018) (No. 18-431). Under the ele-
ments clause, an offense qualifies as a COV if it “has as an element the use,
attempted use, or threatened use of physical force against the person or prop-
erty of another.” 18 U.S.C. § 924(c)(3)(A). Alternatively, under the residual
clause, an offense qualifies as a COV if it “by its nature, involves a substantial
risk that physical force against the person or property of another may be used
in the course of committing the offense.” Id. § 924(c)(3)(B).

       In Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018), the Court held that



       7  Cf. United States v. Chapman, 851 F.3d 363, 373 (5th Cir. 2017) (finding that “[t]he
district court erred in declining to apply the 25-year enhanced penalty to [the] second con-
viction under § 924(c)”).
       8 Section 924(c)(1)(A) provides, in relevant part, “[A]ny person who, during and in
relation to any [COV] . . . uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided for such [COV] . . . if the
firearm is brandished, be sentenced to . . . not less than 7 years.”
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                                        No. 17-10822
language identical to that in § 924(c)(3)(B) was unconstitutionally vague. 9
Consequently, we recently found, based on Dimaya, that “§ 924(c)’s residual
clause is unconstitutionally vague.” Davis, 903 F.3d at 486. Therefore, to
affirm Bowens’s convictions on counts four and six, we must find that Hobbs
Act robbery qualifies as a COV predicate under § 924(c)(3)(A)’s elements
clause.

       As the government correctly notes, binding circuit precedent forecloses
Bowens’s claim that Hobbs Act robbery is not a COV predicate under 18 U.S.C.
§ 924(c)(3)(A). In Buck, we held that “[i]t was not error—plain or otherwise—
for the district court to classify a Hobbs Act robbery as a [COV].” 10 We have
reiterated Buck in at least five cases. 11 Accordingly, we reject Bowens’s conten-
tion that Hobbs Act robbery fails to qualify as a COV predicate.


       9 The statute there, 18 U.S.C. § 16(b), provides, “The term [‘COV’] means . . . any other
offense that is a felony and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing the
offense.”
       10Buck, 847 F.3d at 275 (emphasis added). In determining whether a crime qualifies
as a COV, we apply the categorical approach, see id. at 274, which requires us to look at the
elements of an offense, rather than the specific facts of a case. See Taylor v. United States,
495 U.S. 575, 600 (1990); see also Leocal v. Ashcroft, 543 U.S. 1, 7 (2004).
       11 See Davis, 903 F.3d at 485 (“Whatever arguments may be made opposing Hobbs Act
robbery’s inclusion under the elements clause as a [COV], Dimaya has not affected them, and
therefore, they are foreclosed to us in light of Buck.” (emphasis added)); United States v. Gar-
cia, 735 F. App’x 837, 838 (5th Cir. 2018) (per curiam) (“[A]s [the defendant] concedes, our
court held in Buck, 847 F.3d at 274−75, that Hobbs Act robbery qualifies as a [COV] under
the [elements] clause of § 924(c)(3)(A).”), cert. denied, No. 18-5847, 2018 U.S. LEXIS 5882
(Oct. 9, 2018); United States v. Jones, 854 F.3d 737, 740 n.2 (5th Cir.) (citing Buck to support
its conclusion that “carjacking is also a [COV] under § 924(c)(3)(A)”), cert. denied, 138 S. Ct.
242 (2017); United States v. Miller, 681 F. App’x 381, 383 (5th Cir. 2017) (per curiam) (“We
also recently held that Hobbs Act robbery satisfies Section 924(c)(3)(A)’s [COV] definition.
[Buck, 847 F.3d at 274−75]. [The defendant’s] argument as to Section 924(c)(3)(A) is fore-
closed.”); United States v. Bell, 680 F. App’x 329, 330 (5th Cir. 2017) (per curiam) (“We also
recently held that Hobbs Act robbery satisfies Section 924(c)(3)(A)’s [COV] definition. [Buck,
847 F.3d at 274–75]. . . . [The defendant] cannot show error, plain or otherwise, in the char-
acterization of his robbery offenses as [COVs] under Section[] 924(c)(3)(A) . . . .”).
       This also accords with the position taken by many sister circuits, including the Second,
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                                       No. 17-10822
       AFFIRMED.




Third, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits. See, e.g., United States
v. Melgar-Cabrera, 892 F.3d 1053, 1060–66 (10th Cir. 2018), petition for cert. filed (Oct. 12,
2018) (No. 18-6302); United States v. Hill, 890 F.3d 51, 55–60 (2d Cir. 2018); United States v.
Gooch, 850 F.3d 285, 290–92 (6th Cir.) (“A conviction under § 1951(b)(1) requires a finding of
‘actual or threatened force, or violence, or fear of injury, immediate or future.’ Section
1951(b)(1) clearly ‘has as an element the use, attempted use, or threatened use of physical
force against the person or property of another’ as necessary to constitute a [COV] under
§ 924(c)(3)(A).”), cert. denied, 137 S. Ct. 2230 (2017); United States v. Anglin, 846 F.3d 954,
964–65 (7th Cir.), rev’d on other grounds, 138 S. Ct. 126 (2017); United States v. Robinson,
844 F.3d 137, 140−44 (3d Cir. 2016) (finding that Hobbs Act robbery is a § 924(c) COV when
the defendant was simultaneously found guilty of brandishing a firearm during the robbery),
cert. denied, 138 S. Ct. 215 (2017); In re Fleur, 824 F.3d 1337, 1340−41 (11th Cir. 2016);
United States v. House, 825 F.3d 381, 387 (8th Cir. 2016), cert. denied, 137 S. Ct. 1124 (2017);
United States v. Howard, 650 F. App’x 466, 468 (9th Cir. 2016). All have found arguments
like Bowens’s to be without merit. See, e.g., Melgar-Cabrera, 892 F.3d at 1060–66; Hill,
890 F.3d at 55–60.
                                              10
