               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0614n.06

                                       Case No. 15-6069

                         UNITED STATES COURT OF APPEALS                             FILED
                              FOR THE SIXTH CIRCUIT                           Nov 18, 2016
                                                                          DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE MIDDLE DISTRICT OF
NICKLESS WHITSON,                                 )       TENNESSEE
                                                  )
       Defendant-Appellant.                       )
                                                  )
                                                  )

       BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.

       SUTTON, Circuit Judge. Looking for cocaine, marijuana, and cash, Nickless Whitson

robbed two houses with two sets of co-conspirators. That led to eight criminal convictions,

several of which he challenges on appeal. We affirm nearly all of the convictions but must

vacate two of the § 924(c) convictions and remand for entry of a revised judgment and sentence.

       In 2011, Whitson planned and executed the robbery of a house in LaVergne, Tennessee,

where Chris Leggs, a cocaine dealer, lived. See United States v. Vichitvongsa, 819 F.3d 260, 265

(6th Cir. 2016). Whitson met with Manila Vichitvongsa, Jatavius Sanders, Sithana Keonoi, Beth

Keonoi, and Jessica Parker at a KFC and caravanned to the house. Leggs wasn’t home, but

Dominique Baker was. The co-conspirators stuck guns in Baker’s face, forced her inside onto a

couch, and tied her up. Hoping to find cocaine and money from Leggs’ drug dealing, the co-
Case No. 15-6069, United States v. Whitson


conspirators forcibly interrogated Baker, kicking her in the face and threatening to kill her. An

armed Whitson served as a lookout. The conspirators didn’t find any cocaine or cash, settling

instead for two guns and some jewelry.

       Vichitvongsa and his friend Blake Byrd wanted to retaliate against Daniel Crowe, a

marijuana distributor who had beaten up Byrd in February 2011. Around the spring of 2011,

Byrd began talking with Vichitvongsa about the Elmwood house, where they thought Crowe had

stashed about $300,000 in drug proceeds. Vichitvongsa’s plan to rob the house took shape

during the summer of 2011. Byrd, Vichitvongsa, and Whitson went to case the house. Soon

after, Vichitvongsa, Nickless Whitson, Angela Whitson, Sithana Keonoi, Beth Keonoi, and

Sanders travelled to the Elmwood house and hid nearby until the sun set. That night, several of

the conspirators, including an armed Whitson, left the cover of the woods and broke into the

house. Lorraine and William Webb, Crowe’s mother and stepfather, were sleeping inside, but

Crowe was not there. The robbers cuffed the Webbs’ hands with zip ties, put guns to their heads,

and ransacked the house looking in vain for marijuana and money.            When the frustrated

assailants threatened to burn Lorraine Webb alive, William Webb freed himself from his

restraints and lunged at the robbers with a hard plastic knife sheath. Sithana Keonoi shot

William Webb (who survived), and the robbers fled the house with grow lights, some guns, and

the Webbs’ car. See Vichitvongsa, 819 F.3d at 265.

       The government indicted Whitson on eight counts. As to the LaVergne robbery, the jury

found him guilty of (1) conspiring to violate the Hobbs Act, 18 U.S.C. § 1951; (2) aiding and

abetting the possession of a firearm in relation to a crime of violence, id. §§ 2, 924(c)(1)(A);

(3) conspiring to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846; and (4) aiding and abetting the

possession of a firearm in relation to a drug-trafficking crime, 18 U.S.C. §§ 2, 924(c)(1)(A).



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As to the Elmwood robbery, the jury found Whitson guilty of (1) conspiring to violate the Hobbs

Act; (2) brandishing a firearm in relation to a crime of violence, id. §§ 2, 924(c)(1)(A);

(3) conspiring to distribute marijuana, 21 U.S.C. §§ 841(a)(1), 846; and (4) brandishing a firearm

in relation to a drug-trafficking crime, 18 U.S.C. §§ 2, 924(c)(1)(A). The district court sentenced

Whitson to 1,252 months.

       Connection to interstate commerce. On appeal, Whitson argues that the government

failed to show that the Hobbs Act robberies affected interstate commerce. “In order to obtain a

conviction under the Hobbs Act for the robbery or attempted robbery of a drug dealer,” the

Supreme Court has said, “the Government need not show that the drugs that a defendant stole or

attempted to steal either traveled or were destined for transport across state lines. Rather, to

satisfy the Act’s commerce element, it is enough that a defendant knowingly stole or attempted

to steal drugs or drug proceeds, for, as a matter of law, the market for illegal drugs is ‘commerce

over which the United States has jurisdiction.’” Taylor v. United States, 136 S. Ct. 2074, 2081

(2016); see Gonzales v. Raich, 545 U.S. 1 (2005). The government satisfied the commerce

element of the Hobbs Act because it proved that Whitson and his co-conspirators attempted to

steal marijuana, cocaine, and drug proceeds. See Taylor, 136 S. Ct. at 2081–82.

       Some justices and judges, it is true, have expressed skepticism about the reach of federal

power in this area, noting the federal government’s limited and enumerated powers and the

oddity that it can punish “local, small-scale robberies that States traditionally prosecute.” E.g.,

id. at 2089 (Thomas, J., dissenting). But those expressions have come through dissents. As for

majority decisions in this area, the rule is that “it makes no difference . . . that any actual or

threatened effect on commerce in [this] particular case is minimal.” Id. at 2081. That Whitson

and his co-conspirators attempted to steal drugs that were in interstate commerce is all that



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Case No. 15-6069, United States v. Whitson


matters. See Raich, 545 U.S. at 22; United States v. Conyers, 603 F. App’x 462, 465–66 (6th

Cir. 2015).

       Hobbs Act robbery instructions. In a variation on this theme, Whitson asked the district

court to instruct the jury that each robbery “involved private citizens/individuals and was

directed at a private residence rather than a business. The robber[ies] . . . had no ‘realistic

probability’ of affecting interstate commerce.” R. 830 at 2. The proposed instructions were part

and parcel of the defense’s theory that, because Whitson and his co-conspirators robbed private

homes rather than legitimate businesses, the government faced a higher bar for the commerce

element and had to show that these particular conspiracies had “a realistic probability of

affecting interstate commerce.” R. 928 at 213–14. But the Supreme Court’s decision in Taylor

makes such an instruction unnecessary—and indeed incorrect. All the government had to show

was that Whitson “knowingly stole or attempted to steal drugs or drug proceeds.” Taylor, 136 S.

Ct. at 2081. The government did not have to show that these drugs “either traveled or were

destined for transport across state lines.” Id. A district court does not abuse its discretion by

rejecting inaccurate instructions.

       Two separate sets of conspiracies. Whitson adds that the government failed to prove

beyond a reasonable doubt that there were “two separate drug conspiracies and two separate

conspiracies to violate the Hobbs Act.” Appellant’s Br. 15. As he sees it, there was just one

extended Hobbs Act robbery conspiracy and one extended drug conspiracy that covered the

LaVergne and Elmwood robberies. But another panel of this court has already rejected this

argument. It held that the LaVergne conspiracies were distinct from the Elmwood conspiracies.

Vichitvongsa, 819 F.3d at 272–74. That by itself suffices to reject the argument.




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Case No. 15-6069, United States v. Whitson


       Out of an abundance of caution, we will address the point nonetheless. At stake is

whether there was a “single agreement to commit several crimes constitut[ing] one [robbery]

conspiracy” and one drug conspiracy or instead “multiple agreements to commit separate crimes

constitut[ing] multiple [robbery] conspiracies” and multiple drug conspiracies.         Id. at 273

(quotation omitted). That inquiry turns on “a five-factor ‘totality of the circumstances’ test” that

“consider[s] the elements of: 1) time; 2) persons acting as co-conspirators; 3) the statutory

offenses charged in the indictments; 4) the overt acts charged by the government or any other

description of the offenses charged which indicates the nature and scope of the activity which the

government sought to punish in each case; and 5) places where the events alleged as part of the

conspiracy took place.” Vichitvongsa, 819 F.3d at 273 (quotation omitted). The district court’s

application of this test receives clear-error review. Id.

       Because “several of these factors differ between the [sets of] conspiracies,” “including

the most significant factor, the nature of the co-conspirators’ actions,” the district court did not

clearly err in determining that there were two separate sets of conspiracies. Id. at 273–74.

“[T]here is no evidence weaving the two [robberies] together into a single, overarching plan to

target money and drugs, or to use violence to accomplish this goal. Rather, the evidence

confirms the robberies were acts of opportunity without overarching collaboration, with different

co-conspirators driving each.” Id. at 274. The nature of the activities, the crucial factor, “weighs

heavily in the government’s favor.” Id.

       The location of the sets of conspiracies favors the government too. Id. The conspirators

staged the LaVergne robbery from a KFC and the Elmwood robbery from a Home Depot. The

robberies “all occurred in metropolitan Nashville,” roughly an hour’s drive away from each

other, “but the record is devoid of any other evidence connecting these locations together other



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than the fact that they were circumstantial opportunit[ies] near the co-conspirators’ residences.”

Vichitvongsa, 819 F.3d at 274 (quotation omitted).

       Time also favors the government. The two robberies took place two weeks apart, and

only a few of the conspirators contemplated robbing the Elmwood house before they robbed the

LaVergne house. Id. at 273. The government’s success on these three factors suffices to

conclude that the court did not clearly err by treating the LaVergne conspiracies as separate from

the Elmwood conspiracies. Id. at 274.

       The other two factors, we realize, favor the government less convincingly or not at all.

While “there is overlap between the conspirators in the two robberies,” id. at 273, it is not

complete. “[T]here is no evidence linking Byrd, the person responsible for providing the ‘lead’

for the [Elmwood] residence,” or Angela Whitson to the LaVergne robbery. Id. at 274. And

Jessica Parker didn’t participate in the Elmwood conspiracies. “At best, the [persons] factor

slightly favors defendant.” Id. Second, the offenses charged in the indictment were identical for

the two sets of conspiracies except for “the place of the robbery and the kind of drugs sought.”

Id. This factor “weighs in defendant’s favor” but not sufficiently to outweigh the others. Id.

       Vagueness challenge.      Whitson claims that we should throw out his four firearm

convictions because § 924(c)(3)(B)’s definition of “crime of violence” is unconstitutionally

vague. See Johnson v. United States, 135 S. Ct. 2551 (2015). But the two firearm convictions

related to the drug distribution conspiracies were “in relation to . . . drug trafficking crime[s]”

and did not rely on the definition of “crime of violence.” 18 U.S.C. § 924(c)(1)(A). Moreover,

§ 924(c)(3)(B), we have already held, is not unconstitutionally vague. United States v. Taylor,

814 F.3d 340, 375–79 (6th Cir. 2016).




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Case No. 15-6069, United States v. Whitson


       Double jeopardy challenge to firearm charges. The government and Whitson agree that

two of his firearms convictions violated the Double Jeopardy Clause in light of Vichitvongsa,

819 F.3d at 266–70. The jury convicted Whitson on four firearm charges, two for the LaVergne

robbery and drug conspiracies and two for the Elmwood robbery and drug conspiracies. But

because Whitson “chose to use a firearm once during each robbery to simultaneously further two

conspiracies,” the district court should have “dismiss[ed] one of defendant’s § 924(c) counts for

each robbery” and drug conspiracy set. Vichitvongsa, 819 F.3d at 268, 270. Consistent with the

government’s confession of error, we vacate two of Whitson’s § 924(c) convictions, either count

2 or 4 (the LaVergne set) plus either count 6 or 8 (the Elmwood set). “[T]he proper penalties are

the same given § 924(c)’s mandatory term (regardless of which two of the four counts are

vacated),” making it appropriate to “remand to the district court for the limited purpose of

entering a revised judgment and sentence consistent with this opinion.” Id. at 270; 18 U.S.C.

§ 924(c)(1)(A)(1), (c)(1)(C)(1).

       For these reasons, we reverse and vacate two of Whitson’s § 924(c) convictions, remand

for entry of a revised judgment and sentence, and affirm the rest of the district court’s judgment.




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