                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 17-3784
                                     _____________

                           UNITED STATES OF AMERICA

                                             v.

                               BRANDON MCKELVEY,
                                        Appellant

                                    ______________

                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D. C. Civil No. 2-15-cr-00061-004)
                   District Court Judge: Honorable Gene E. K. Pratter
                                    ______________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
                                  December 11, 2018
                                   ______________

           Before: SMITH, Chief Judge, McKEE and FISHER, Circuit Judges

                              (Opinion filed: July 10, 2019)

                               _______________________

                                      OPINION *
                               _______________________




*
 This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.

        Appellant Brandon McKelvey appeals his conviction under 18 U.S.C. § 924(c),

which carries a mandatory minimum sentence where a defendant “uses or carries a

firearm” during a predicate “crime of violence.” 1 For the reasons that follow, we will

affirm the judgment of the district court.

        Appellant principally argues that he was “at most, a co-conspirator or an aider and

abetter to the [predicate crime of] Hobbs Act robbery” and that “those crimes –

conspiracy and aiding and abetting – do not qualify as ‘crimes of violence’” under §

924(c). 2 His argument is foreclosed by our decision in United States v. Robinson 3 and

appears to rest on misunderstandings of 18 U.S.C. § 924(c) and on aiding and abetting

liability.

        We held, in Robinson, “that when, as here, the two offenses, robbery and

brandishing a gun, have been tried together and the jury has reached a guilty verdict on

both offenses, the Hobbs Act robbery qualifies as a crime of violence under the ‘elements

clause’ of 18 U.S.C. § 924(c)(3)(A).” 4 We held that because the jury convicted Robinson

of both crimes, “the combined convictions before us make clear that the ‘actual or

threatened force, or violence, or fear of injury’ in Robinson’s Hobbs Act robbery sprang


1
  The district court had original jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction to hear the appeal under 28 U.S.C. § 1291. We review the district court’s
decision for plain error. United States v. Robinson, 844 F.3d 137, 140 (3d Cir. 2016),
cert. denied, 138 S. Ct. 215 (2017).
2
  Appellant’s Br. 10, 14.
3
  844 F.3d at 137.
4
  Id. at 139.

                                             2
from the barrel of a gun.” 5 The same is true here. We reasoned in Robinson that the

“language [of the Hobbs Act Robbery statute] would seem adequate in and of itself to

satisfy the ‘elements’ clause of §924(c)(2)(B),” but that where the defendant was

convicted of brandishing a firearm while committing Hobbs Act robbery, “the question . .

. [was] not ‘is Hobbs Act robbery a crime of violence?’ but rather ‘is Hobbs Act

robbery committed while brandishing a firearm a crime of violence?’” 6 We held “[t]he

answer to this question must be yes.” 7

         McKelvey contends that we should reach a different result here because, whereas

Robinson was the person who brandished the gun in the robberies he was convicted of,

McKelvey was, “at most, a co-conspirator or an aider and abetter.” 8 This is a distinction

without a difference. It does not matter whether McKelvey was convicted as a principal

or as an aider and abetter to Hobbs Act robbery because, under the aiding and abetting

statute, a person who “aids, abets, [or] counsels” the commission of a federal offense “is




5
    Id. at 144.

         When the predicate offense, Hobbs Act robbery, and the § 924(c) offense are
         contemporaneous and tried to the same jury, the record of all necessary facts
         are before the district court. The jury’s determination of the facts of the
         charged offenses unmistakably shed light on whether the predicate offense
         was committed with “the use, attempted use, or threatened use of physical
         force against the person or property of another.”

 Id. at 141.
6
  Id. at 144 (emphasis in original).
7
  Id.
8
  Appellant’s Br. 10.

                                              3
punishable as a principal.” 9 Aiding and abetting is not a separate crime, but rather “an

alternative charge that permits one to be found guilty as a principal for aiding or

procuring someone else to commit the offense.” 10 His conviction for aiding and abetting

is therefore treated as a conviction for the crime. 11 Because we have held that where a

jury convicts a defendant of both Hobbs Act robbery and brandishing a gun, the Hobbs

Act robbery conviction qualifies as a crime of violence under the elements clause of 18

U.S.C. § 924(c)(3)(A), Appellant’s argument fails.

       For the foregoing reasons, we will affirm the judgment of the district court.




9
  18 U.S.C. § 2.
10
   United States v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015) (internal quotation marks
omitted).
11
   See In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016) (“Because an aider and abettor
is responsible for the acts of the principal as a matter of law, an aider and abettor of a
Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act
robbery.”).
                                             4
