     Case: 17-60668      Document: 00514798407         Page: 1    Date Filed: 01/16/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                      No. 17-60668                          FILED
                                                                     January 16, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

MARIO DEVANT CHEERS,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:16-CV-125


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:*
       Mario Devant Cheers moved to vacate his sentence and conviction for
brandishing a firearm under 18 U.S.C. § 924(c) after the Supreme Court
invalidated the “residual clause” in § 924(e) as unconstitutionally vague. The
district court denied the motion. We AFFIRM.
       In 2003, Cheers pled guilty to two counts of aiding and abetting armed
bank robbery, in violation of 18 U.S.C. § 2113(a), (d), and also of 18 U.S.C. § 2


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60668
dealing with aiding and abetting the commission of an offense. He also pled
guilty to one count of using, carrying, and brandishing a firearm during, in
relation to, and in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c). The district court sentenced him to 403 months in prison, five years
of supervised release, and restitution of $5,607.90.
       In 2016, Cheers moved to vacate his sentence and conviction for
brandishing after the Supreme Court ruled that the residual clause definition
of “violent felony” set forth in Section 924(e) is unconstitutionally vague. See
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). We decline to consider
the government’s argument raised for the first time on appeal that Cheers’s
motion was untimely. Wood v. Milyard, 566 U.S. 463, 474 (2012).


           I.   Brandishing Conviction
       Cheers argues his brandishing conviction under Section 924(c) must be
vacated because that statute’s residual clause is also unconstitutionally vague.
We recently accepted the argument in another case that Section 924(c)(3)(B) is
unconstitutionally vague. See United States v. Davis, 903 F.3d 483, 485-86
(5th Cir. 2018), cert. granted, No. 18-431, 2019 WL 98544 (Jan. 4, 2019). 1
       Vagueness of the residual clause, though, does not require that Cheers’s
Section 924(c) conviction be vacated. In Davis, we were presented the same
question about a Section 924(c) conviction premised on Hobbs Act robbery. Id.
at 486. We “decline[d] to extend Dimaya’s holding that far” because it “only
addressed, and invalidated, a residual clause mirroring the residual clause in
[Section] 924(c)[(3)(B)];     it   did    not       address   the   elements   clause”    in



       1 The government’s petition for certiorari presented only a question of whether
Section 924(c)(3)(B) is unconstitutionally vague. See Pet. for Cert., Davis, 2018 WL 4896751,
at *I. The Court’s grant of the petition does not make our decision here less certain since
reversal would mean the statute is not unconstitutionally vague.
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Section 924(c)(3)(A). Id. at 485. “Whatever arguments [might have been]
made opposing Hobbs Act robbery’s inclusion under the elements clause as a
crime of violence, Dimaya has not affected them, and therefore, they [were]
foreclosed to us” by a prior panel opinion that held Hobbs Act robbery satisfied
the elements clause. Id.
      This means that Cheers’s brandishing conviction survives so long as his
underlying Section 2113(a) conviction for armed bank robbery “has as an
element the use, attempted use, or threatened use of physical force against the
person or property of another.” § 924(c)(3)(A). It does, since we already have
held Section 2113(a) satisfies an identical elements clause contained in the
Sentencing Guidelines. United States v. Brewer, 848 F.3d 711, 714-16 (5th Cir.
2017). Armed bank robbery therefore constitutes a crime of violence under
Section 924(c)(3)(A) for the same reasons.


      II.   Career Offender Enhancement
      Cheers also seeks to vacate his sentence on the ground that he was
sentenced as a career offender under provisions of the Sentencing Guidelines
that are unconstitutionally vague after Johnson. Cheers was held to be a
career offender under U.S.S.G. §§ 4B1.1-2 (2002) based on his five prior
Tennessee convictions for aggravated robbery.
      Section 4B1.2(a) of the 2002 Guidelines contained a residual clause
identical to the one invalidated by Johnson. Cheers was sentenced under the
pre-Booker mandatory Guidelines, so his challenge is not strictly foreclosed by
the determination that advisory Guideline sentences are not subject to
challenges for vagueness. Beckles v. United States, 137 S. Ct. 886, 895 (2017).
      It is not necessary for us to resolve whether mandatory Guideline
sentences are subject to Johnson vagueness challenges after Beckles unless
Section 4B1.2(a) was vague as applied to Cheers. Id. at 897-98 (Ginsburg, J.,
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concurring). When Cheers was sentenced, “the official commentary to the
career-offender Sentencing Guideline expressly designated his offense of
conviction,” which was robbery, as a crime of violence. Id.; § 4B1.2 comment,
n.1 (2002). The “generic, contemporary definition of robbery encompassed by
the [G]uidelines corresponds to the definition found in a majority of states’
criminal codes . . . . [and] may be thought of as aggravated larceny, containing
at least the elements of misappropriation of property under circumstances
involving [immediate] danger to the person.” United States v. Montiel-Cortes,
849 F.3d 221, 226 (5th Cir. 2017) (last alteration in original) (citations
omitted).
      We agree with the district court that the Tennessee convictions for
aggravated robbery were within the scope of the generic robbery crime
enumerated in the 2002 commentary to the Guidelines. Under Tennessee law,
robbery was “taking from the person of another property of any value by
violence or putting the person in fear,” TENN. CODE. ANN. § 39-13-401(a)
(1989), while aggravated robbery is “robbery . . . (1) [a]ccomplished with a
deadly weapon or by display of any article used or fashioned to lead the victim
to reasonably believe it to be a deadly weapon; or (2) [w]here the victim suffers
serious bodily injury,” TENN. CODE. ANN. § 39-13-402(a) (1989).
      Since Cheers’s career sentencing enhancement was based on his
Tennessee convictions for aggravated robbery, the Guidelines cannot have
been vague as applied to him. Beckles, 137 S. Ct. at 897-98.
      AFFIRMED.




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