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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12106
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:14-cr-60190-JIC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

WALLACE LEE BREWTON,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 29, 2016)

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:
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      Wallace Brewton was convicted on one count of conspiracy to commit

Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a); one count of committing

Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a); one count of conspiracy

to use and brandish a firearm during the commission of a crime of violence, in

violation of 18 U.S.C. § 924(o); and one count of using and brandishing a firearm

during the commission of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A). The district court imposed a sentence of 360 months’

imprisonment. Brewton now appeals his conviction and sentence on various

grounds.

                                         I.

      On the afternoon of July 25, 2014, two men robbed Oceans Jewelers, a

jewelry store in Davies, Florida. One of the robbers was unarmed. The other used

a gun to threaten and coerce the store’s manager, Abraham Bendahan. After

relieving the store of cash and jewels, and unsuccessfully attempting to smash its

surveillance equipment, the robbers fled. Although Bendahan was the only

eyewitness present at the time, much of the robbery was caught on the store’s

security footage.

      During the ensuing investigation, the police quickly discovered evidence of

Brewton’s involvement in the robbery. One of the robbers, the unarmed one, left

behind palm and fingerprints, which crime scene technicians later identified as



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Brewton’s. Bendahan also positively identified Brewton from a photographic

lineup as one of the robbers. Based on the print evidence and Bendahan’s

identification, the police arrested Brewton.

      After the arrest, police interviewed two of Brewton’s former girlfriends.

Both women said that Brewton gave or attempted to give them jewelry as gifts

toward the end of July 2014. Both women turned over the jewelry to the police

and those pieces matched missing inventory from the jewelry store. Both women

positively identified Brewton from the jewelry store’s security footage. One

woman also told police that Brewton had showed her a video clip of the robbery

(which had appeared on the news), asked her if she could identify him from the

video, and asked whether she thought he would get caught.

      For Brewton’s involvement in the July 2014 robbery, the government

charged him with four counts: (i) conspiracy to commit Hobbs Act Robbery,

(ii) Hobbs Act Robbery, (iii) conspiracy to use and brandish a firearm during the

commission of a crime of violence, and (iv) using and brandishing a firearm during

the commission of a crime of violence. At trial, the government introduced

evidence and testimony from Bendahan, Brewton’s former girlfriends, and police

investigators. The parties also stipulated that “Oceans Jewelers is a company that

operates in interstate commerce by selling products that travel in and affect




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interstate commerce.” Brewton did not testify at trial and the defense rested

without presenting any evidence or calling any witnesses.

      At the close of trial, Brewton moved for a judgment of acquittal under Rule

29 of the Federal Rules of Criminal Procedure. The district court denied the

motion. Before excusing the jurors to deliberate, the district court asked Brewton’s

counsel whether he had any objections to the proposed jury instructions. Defense

counsel replied that he had no objections. The jury found Brewton guilty on all

counts.

                                          II.

      Brewton first challenges the sufficiency of the evidence against him. “We

review de novo whether there is sufficient evidence in the record to support a

jury’s verdict in a criminal trial, viewing the evidence in the light most favorable to

the government, and drawing all reasonable factual inferences in favor of the jury’s

verdict.” United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009).

“Accordingly, the evidence will be sufficient to support a conviction if a

reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.” Id. (quotation marks omitted).

                                          A.

      Brewton contends that the evidence was insufficient to show that he used or

brandished a firearm during the robbery, in violation of 18 U.S.C.



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§ 924(c)(1)(A)(ii), or that he conspired to do so, in violation of 18 U.S.C. § 924(o).

He argues that the evidence shows that he was unarmed and that only his

confederate used and brandished a gun during the robbery. According to Brewton,

that is not enough to establish that he used or agreed to the use of a gun during the

robbery.

      To sustain a conviction under § 924(c)(1)(A), the government must show

that the defendant: “(1) knowingly (2) possessed a firearm (3) during and in

relation to a drug trafficking crime or a crime of violence.” United States v.

Isnadin, 742 F.3d 1278, 1307 (11th Cir. 2014). “Possession may be actual or

constructive, joint or sole.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.

2004). “[U]nder § 924(c), a defendant may be liable for a co-conspirator’s

possession [of a firearm] if possession was reasonably foreseeable.” Id. And “if a

defendant continues to participate in a crime after a gun was displayed or used by a

confederate, the jury can permissibly infer from his failure to object or withdraw

that he had such knowledge.” Rosemond v. United States, 572 U.S. ___, 134

S. Ct. 1240, 1250 n.9 (2014).

      To sustain a conviction under § 924(o), the government must show: “(1) a

conspiracy existed to commit the substantive offense; (2) [the defendant] knew of

the conspiracy, and (3) [the defendant], with knowledge, voluntarily joined it.”

Isnadin, 742 F.3d at 1307. “The existence of a conspiracy may be proved by



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circumstantial evidence and may be inferred from concert of action.” United

States v. Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005) (quotation marks

omitted). “Indeed, because the crime of conspiracy is predominantly mental in

composition, it is frequently necessary to resort to circumstantial evidence to prove

its elements.” United States v. Pineiro, 389 F.3d 1359, 1369 (11th Cir. 2004)

(quotation marks and alteration omitted).

      The evidence shows that Brewton and his confederate acted in concert to rob

the jewelry store. When Brewton’s confederate pulled out the gun, Brewton did

not object or withdraw from the robbery. Instead, when Brewton’s confederate

revealed the gun, trained it on the store’s manager, and threatened him with it,

Brewton emptied the manager’s pockets, took his money, and grabbed the store’s

cash and jewelry. The jury could reasonably infer from that concerted effort that

Brewton knew that his confederate would use and brandish a gun to execute the

robbery. As such, the evidence was sufficient to sustain Brewton’s convictions

under §§ 924(c)(1)(A) and 924(o).

                                          B.

      Brewton next contends that the evidence was insufficient to show the

interstate commerce nexus necessary to sustain his convictions for committing and

conspiring to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a). He

points to the fact that the government, in its superseding indictment, and the district



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court, in responding to a question from the jury, identified Bendahan as the victim

of the robbery. He argues that because the victim was an individual, rather than a

business engaged in interstate commerce, the government failed to show an

interstate commerce nexus. He is wrong.

      “The Hobbs Act prohibits robbery or extortion, and attempts or conspiracies

to commit robbery or extortion, that in any way or degree obstruct, delay or affect

commerce or the movement of any article or commodity in commerce.” United

States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) (quotation marks and

alterations omitted). “Only a de minimis nexus with interstate commerce is

required.” United States v. Farrell, 877 F.2d 870, 875 (11th Cir. 1989). And

“[w]hile the Hobbs Act usually is applied to robberies of businesses, criminal acts

directed toward individuals also may violate the Hobbs Act.” Diaz, 248 F.3d at

1084. The government may, for instance, prosecute a defendant for Hobbs Act

robbery aimed at an individual when “the crime causes the individual to deplete the

assets of an entity engaged in interstate commerce.” Id. at 1084–85.

      The parties stipulated that Oceans Jewelers was a company that operated in

interstate commerce by selling products that travel in and affect interstate

commerce. The evidence presented at trial showed that the robbery was directed

toward Bendahan, who also testified that Oceans Jewelers suffered a total loss of

about $250,000. That evidence, in combination with the parties’ stipulation,



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showed that Brewton’s actions caused Bendehan to deplete the assets of an entity

engaged in interstate commerce. That was all that was needed to show an

interstate commerce nexus to support Brewton’s Hobbs Act robbery convictions.

                                         III.

      Brewton next contends that the district court improperly instructed the jury

on the government’s theory of aiding and abetting the use or brandishing of a fire

arm during the robbery. We have said that “where a defendant agrees to the

court’s proposed instructions, the doctrine of invited error applies, meaning that

review is waived even if plain error would result.” United States v. Carter, 776

F.3d 1309, 1323 (11th Cir. 2015). Here, Brewton’s attorney accepted the court’s

proposed jury instructions by affirmatively stating that he had no objections to

them. As such, any error was invited and Brewton has waived his right to

challenge the jury instruction on appeal.

                                         IV.

      Brewton contends that the district court violated his due process rights when

it admitted Bendahan’s out-of-court identification. Because Brewton failed to

object to the introduction of Bendahan’s out-of-court identification in the district

court, we review only for plain error. United States v. Chilcote, 724 F.2d 1498,

1503 (11th Cir. 1984).




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      We use “a two-step analysis in assessing the constitutionality of a trial

court’s decision to admit an out-of-court identification.” Diaz, 248 F.3d at 1102.

We must first “determine whether the original identification procedure was unduly

suggestive.” Id. “If we conclude that it was suggestive, we then must consider

whether, under the totality of the circumstances, the identification was nonetheless

reliable.” Id.

      There is absolutely no indication that the procedure by which Bendahan

identified Brewton was unduly suggestive. Indeed, Brewton does not allege that

the identification procedure was unduly suggestive. He instead asserts that

Bendahan’s identification was unreliable “because the robbery lasted only a few

minutes and Mr. Bendahan . . . was under a great amount of stress.” Without

more, that is insufficient to show that the district court plainly erred by admitting

Bendahan’s out-of-court identification.

                                          V.

      Brewton also contends that the combination of trial errors warrant reversal

of his conviction under the cumulative error doctrine. Because Brewton has failed

to establish that any of the district court’s rulings were erroneous, “the argument

that cumulative trial error requires that this Court reverse [his] convictions is

without merit.” United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005).

                                          VI.



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      Finally, Brewton challenges his sentence on three grounds.

                                          A.

      He first argues that the district court erred in calculating his base offense

level under U.S.S.G. § 2K2.1 and in applying the career offender enhancement

under U.S.S.G. § 4B1.1. Under § 2K2.1, a defendant’s base offense level is 24 “if

the defendant committed any part of the instant offense subsequent to sustaining at

least two felony convictions of either a crime of violence or a controlled substance

offense.” U.S.S.G. § 2K2.1(a)(2). The § 4B1.1 career offender enhancement

applies when, among other things, “the defendant has at least two prior felony

convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1(a). The definition of “crime of violence” is the same in both

§ 2K2.1 and § 4B1.1.

      The district court identified five potential predicate offenses, all from

Florida: (1) robbery; (2) burglary of a dwelling; (3) battery on a law enforcement

officer; (4) escape; and (5) resisting an officer with violence. Brewton contends

that in light of the Supreme Court’s decision in Johnson v. United States, 576 U.S.

___, 135 S. Ct. 2551 (2015), his convictions for Florida burglary, battery on law

enforcement officer, and escape no longer qualify as crimes of violence.

      Brewton’s argument fails for two independently sufficient reasons. The first

independently sufficient reason that his argument fails is because, as Brewton



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himself concedes, his convictions for robbery and resisting arrest an officer with

violence still qualify as crimes of violence under our circuit’s binding precedent.

See United States v. Lockley, 632 F.3d 1238, 1241–42 (11th Cir. 2011); United

States v. Hill, 799 F.3d 1318, 1321–23 (11th Cir. 2015). Thus, even if his

convictions for Florida burglary, battery on law enforcement officer, and escape no

longer qualify as crimes of violence, he still has at least two other felony

convictions that do qualify has crimes of violence. Accordingly, the district court

did not err in calculating his base offense level under § 2K2.1 and in applying the

career offender enhancement under § 4B1.1.

      The second independently sufficient reason his argument fails is because it is

foreclosed by our decision in United States v. Matchett, 802 F.3d 1185 (11th Cir.

2015). There, we held that the vagueness doctrine and the holding of Johnson do

not apply to the career offender guideline. Id. at 1193–96. Brewton cites the

Supreme Court’s recent grant of certiorari in Beckles v. United States, No. 15-

8544, 2016 WL 1029080 (U.S. June 27, 2016), which involves the question

whether Johnson applies to the sentencing guidelines, and Brewton suggests that

the Court may abrogate our Matchett decision in Beckles. As we have explained

before, however, “grants of certiorari do not themselves change the law,” and

“[u]ntil the Supreme Court issues a decision that actually changes the law, we are

duty-bound to apply this Court’s precedent.” Gissendaner v. Comm’r, Ga. Dep’t



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of Corr., 779 F.3d 1275, 1283–84 (11th Cir. 2015) (quotation marks omitted). We

are therefore bound to apply Matchett here.

                                         B.

      Brewton next argues that the district court’s imposition of a four-level

enhancement under § 2K2.1(b)(6) constituted impermissible double counting.

Because Brewton did not raise that argument in the district court, we review only

for plain error. See United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir.

2005).

      “Impermissible double count occurs only when one part of the Guidelines is

applied to increase a defendant’s punishment on account of a kind of harm that has

already been fully accounted for by application of another part of the Guidelines.”

United States v. Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006) (quotation

marks omitted). “Double counting a factor during sentencing is permitted if the

Sentencing Commission intended that result and each guideline section in question

concerns conceptually separate notions relating to sentencing.” Id. at 1227

(quotation marks and alteration omitted).

      Section 2K2.1(b)(6) directs a sentencing judge to increase a defendant’s

offense level by four if the defendant “[u]sed or possessed any firearm or

ammunition in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(6)(B). The commentary to the guidelines provides that “[i]f a sentence



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under this guideline is imposed in conjunction with a sentence for an underlying

offense, do not apply any specific offense characteristic for possession,

brandishing, use, or discharge of an explosive or firearm when determining the

sentence for the underlying offense.” Id. § 2K2.4 cmt. n.4. That means that “when

a defendant is convicted of a § 924(c) violation and an underlying offense, the

defendant’s possession of a weapon cannot be used to enhance the level of the

underlying offense.” Diaz, 248 F.3d at 1107 (emphasis omitted).

      Brewton argues that the district court applied § 2K2.1(b)(6) to enhance his

offense level for possessing a gun during the underlying Hobbs Act robbery

offense even though he was convicted of a § 924(c) violation in relation to that

robbery. However, even if the district court erred in applying the § 2K2.1(b)(6)

enhancement, that error did not prejudice Brewton because it did not affect his

sentence.

      Brewton’s adjusted offense level with the § 2K2.1(b)(6) enhancement was

30. But, after determining that Brewton qualified for the § 4B1.1 enhancement, the

court increased his offense level to 37 because that offense level was “greater than

the offense level otherwise applicable.” U.S.S.G. § 4B1.1(b). Thus, the

§ 2K2.1(b)(6) enhancement had no effect on Brewton’s total offense level and

ultimate guideline range because, absent the enhancement, his total offense level




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would have still been 37 under § 4B1.1. Accordingly, Brewton cannot establish

plain error.

                                         C.

      Lastly, Brewton argues that his 360-month total sentence was procedurally

and substantively unreasonable. He first argues that his sentence was procedurally

unreasonable because it was based on the district court’s erroneous application of

the guidelines. As we have already explained, however, the court did not err in

calculating Brewton’s base offense level or in applying the guideline

enhancements. His sentence was therefore procedurally reasonable.

      Brewton next argues that his sentence was substantively unreasonable

because the court improperly weighed the 18 U.S.C. § 3553(a) factors by failing to

adequately consider his mitigating factors such as his minor child, mental health

issues, and drug addictions. That assertion, without more, is not enough to show

that the district court made a clear error of judgment in weighing the § 3553(a)

factors. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)

(“We will defer to the district court’s judgment regarding the weight given to the

§ 3553(a) factors unless the district court has made a clear error of judgment and

has imposed a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.”) (quotation marks omitted). Moreover, his sentence was

at the low end of his advisory guideline range, which we ordinarily expect to be



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reasonable. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). He has

failed to show that his sentence is substantively reasonable.

      AFFIRMED.




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