     Case: 15-20757      Document: 00514182643         Page: 1    Date Filed: 10/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT



                                      No. 15-20757                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          October 4, 2017
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

JAMES BURRELL GIBSON,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-313-2


Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       James Burrell Gibson appeals his 14-year sentence resulting from a
guilty plea for aiding and abetting aggravated bank robbery under 18 U.S.C.
§§ 2 and 2113(a), (d). Gibson contends the district court committed reversible
plain error when it accepted his guilty plea because it failed to inform him that,
to be found guilty, he needed foreknowledge that firearms would be possessed



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20757
or used, and because there was insufficient factual support showing such
foreknowledge. Because our review is for plain error and Gibson failed to show
that any error committed by the district court was plain, we AFFIRM.
                                I. Background
      Gibson pleaded guilty to one count of aiding and abetting a bank robbery
by use of a firearm under 18 U.S.C. §§ 2 and 2113(a), (d). In exchange for the
plea and Gibson’s waiver of his right to appeal, the Government agreed to
dismiss a charge of aiding and abetting the discharge of a firearm during a
crime of violence under 18 U.S.C. § 924(c).
      At his plea hearing, the district court advised Gibson of the nature of the
crime he was pleading guilty to, including: (1) someone put a person’s life in
jeopardy by using a dangerous weapon while intentionally taking money
possessed by a federally insured bank; and (2) Gibson associated with and
purposely participated in the criminal venture, and sought by his actions to
make that venture successful.
      Gibson acknowledged understanding that those elements, taken
together, constituted what he was pleading guilty to. Asked to say in his own
words what he did to commit the crime he was pleading guilty to, Gibson
replied, “I assisted in . . . the getaway of the bank robbery. I was the driver of
the white [getaway] van.”
      The district court sentenced Gibson to 168 months’ imprisonment, the
low end of the Guidelines range, followed by three years of supervised release.
Gibson now appeals his conviction and sentence. He contends the district court
plainly erred by not advising him of the full nature of the charge he was
pleading guilty to and by accepting his plea when there was an insufficient
factual basis to support it.




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                           II. Standard of Review
      Gibson concedes, and the record confirms, that his appeal is subject to
plain error review because he did not, until this appeal, claim that the district
court misadvised him of the nature of the charge to which he was pleading
guilty or that the factual basis for his guilty plea was insufficient. See United
States v. Alvarado-Casas, 715 F.3d 945, 951–53 (5th Cir. 2013). To establish
plain error, a defendant “must show (1) an error (2) that was clear or obvious
(3) that affected his substantial rights.” See United States v. Avalos-Martinez,
700 F.3d 148, 153 (5th Cir. 2012) (per curiam) (citation omitted). An error is
“clear or obvious” if controlling circuit or Supreme Court precedent has decided
the issue, but not if it remains “subject to reasonable dispute.” United States
v. Scott, 821 F.3d 562, 570–71 (5th Cir. 2016) (quoting United States v. Fields,
777 F.3d 799, 802 (5th Cir. 2015)). If plain error is established, “we have the
discretion to correct the error if it ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Avalos-Martinez, 700 F.3d at 153
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
                                III. Discussion
      Federal Rule of Criminal Procedure 11 requires a court to advise a
defendant of the nature of the charge to which he is pleading so that his plea
is an informed one. See FED. R. CRIM. P. 11(b)(1)(G). There is no “mechanical
rule” as to how a court must notify a defendant of the nature of the charge he
is pleading guilty to. United States v. Reyna, 130 F.3d 104, 110 (5th Cir. 1997)
(citing United States v. Dayton, 604 F.2d 931, 937–38 (5th Cir. 1979) (en banc)).
Rather, a court must generally “have a colloquy with the defendant that would
lead a reasonable person to believe that the defendant understood the nature
of the charge.” Id. (citations omitted).
      The Government charged Gibson with aiding and abetting aggravated
bank robbery under 18 U.S.C. §§ 2 and 2113(a), (d). To prove the offense of
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                                 No. 15-20757
bank robbery under § 2113(a), “the government must demonstrate that: an
individual or individuals used force and violence or intimidation to take or
attempt to take from the person or presence of another money, property, or
anything of value belonging to or in the care, custody, control, management or
possession of any bank.” United States v. Ferguson, 211 F.3d 878, 883 (5th Cir.
2000). “The punishment may be enhanced when, in committing or attempting
to commit the offense, the defendant assaults another person or puts in
jeopardy the life of another person by the use of a dangerous weapon or device,”
thereby committing aggravated bank robbery under § 2113(d). Id.
      Section 2 is the federal aiding and abetting statute. It provides that
“[w]hoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a
principal.” 18 U.S.C. § 2(a). To convict a defendant under § 2, the government
must prove the defendant associated with the criminal venture, purposefully
participated in it, and sought by his actions to make the venture succeed.
United States v. Vaden, 912 F.2d 780, 783 (5th Cir. 1990). An aider and abettor
is liable for criminal acts that are the “natural or probable consequence of the
crime” that he encouraged. Id. (quoting United States v. Fagan, 821 F.2d 1002,
1012 (5th Cir. 1987)). To be associated with the criminal venture, a defendant
must “share[] in the criminal intent of the principal.” United States v. Lopez-
Urbina, 434 F.3d 750, 757 (5th Cir. 2005) (quoting United States v. Sorrells,
145 F.3d 744, 753 (5th Cir. 1998)).
      In Gibson’s case, the district court recited to him the basic elements of
aiding and abetting aggravated bank robbery, tracking this circuit’s
statements of the requirements for conviction. Although the district court told
Gibson that aiding and abetting in his case required a “bank robbery,” the
district court’s recitation of the elements for aggravated bank robbery made


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                                  No. 15-20757
clear that Gibson was being charged with aiding and abetting aggravated bank
robbery.
       The district court did not state explicitly that being associated with a
criminal venture requires sharing the criminal intent of one’s confederates.
But the district court closely hewed to existing circuit precedent when it
explained that Gibson had to “purposely” participate in “intentionally”
committing a bank robbery that put another person’s life in jeopardy by use of
a dangerous weapon. Further, the district court gave Gibson an opportunity
to ask questions about the elements of his charged crime. Gibson also said in
his own words that he assisted in the armed bank robbery described by the
Government’s lawyer. On this record, it is not plain that the district court
erred in advising Gibson and determining that he understood the nature of the
charge to which he was pleading guilty. See Alvarado-Casas, 715 F.3d at 951–
53.
       Gibson, however, argues that the Supreme Court’s decision in Rosemond
v. United States, 134 S. Ct. 1240 (2014), required the district court to inform
him that by aiding and abetting aggravated bank robbery, he was admitting to
foreknowledge of the presence of a firearm. In Rosemond, the Supreme Court
considered what it takes to aid and abet an offense under 18 U.S.C. § 924(c),
which makes it a crime to use or carry a firearm during any crime of violence
or drug trafficking crime. Rosemond, 134 S. Ct. at 1243–45. The Supreme
Court held that to be convicted of aiding and abetting a § 924(c) offense, a
defendant must have “advance knowledge that a confederate would use or
carry a gun during the crime’s commission.” Id. at 1243.
       Gibson argues that Rosemond applies, even though the Government
dismissed its § 924(c) charge against him when he pleaded guilty to aiding and
abetting aggravated bank robbery under § 2113(a), (d). However, it is not clear
Rosemond     applies   to   Gibson’s   case.   The   Supreme   Court    explicitly
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                                     No. 15-20757
acknowledged that it was not addressing whether the charged crime in
Rosemond was a natural and probable consequence of the intended crime,
which might create an “exception” to the general rule that an aider and abettor
must intend to further the full scope of a charged crime. Id. at 1248 n.7 (“[N]o
one contends that a § 942(c) violation is a natural and probable consequence of
simple drug trafficking.”). Moreover, it is well established in this circuit that
an aider and abettor is liable for criminal acts that are the “natural or probable
consequence of the crime” that he encouraged. See United States v. Gulley, 526
F.3d 809, 816 (5th Cir. 2008) (quoting Vaden, 912 F.2d at 783).
      The only case in our circuit addressing this issue held that Rosemond did
not apply to a case involving armed robbery under Mississippi law because the
Mississippi Supreme Court has held the use of a firearm to be a natural and
probable consequence of simple robbery. Hughes v. Epps, 561 F. App’x 350,
354 n.4 (5th Cir. 2014) (per curiam). 1 Thus, the district court’s ruling was
consistent with the only guidance it had from this court.
       Given the lack of controlling circuit or Supreme Court precedent in his
favor and the issues raised by the foregoing case, Gibson cannot satisfy the
second prong of the plain error test—that the district court’s error be clear or
obvious under existing law. See Scott, 821 F.3d at 570–71; see also United
States v. Seabrooks, 839 F.3d 1326, 1337 (11th Cir. 2016), cert. denied, 137 S.
Ct. 2265 (2017) (perceiving no plain error in a jury instruction on aiding and
abetting because the Supreme Court and controlling circuit precedent had not
resolved whether a defendant’s knowledge that the principal was a convicted
felon was an essential element of aiding and abetting a § 922(g) violation).
Because it is not clear or obvious that Rosemond’s “advance knowledge”


      1  Although Hughes v. Epps is not “controlling precedent,” it “may be [cited as]
persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH
CIR. R. 47.5.4). This further demonstrates that the alleged error here was not “clear.”
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                                No. 15-20757
requirement applies to the charge against Gibson of aiding and abetting
aggravated bank robbery, we need not determine whether there was a factually
sufficient basis for finding that Gibson had foreknowledge that firearms would
be used.
     AFFIRMED.




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