    Case: 17-50526    Document: 00514706677     Page: 1   Date Filed: 11/01/2018




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

                                 No. 17-50526                          FILED
                                                                November 1, 2018
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                  Plaintiff–Appellee,

versus

MARVIN LEWIS,

                  Defendant–Appellant.



                Appeals from the United States District Court
                      for the Western District of Texas




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Lewis was indicted for crimes related to a series of robberies. On appeal,
Lewis raises three issues. First, he asserts that we should vacate his conviction
and sentence on count 23 of the indictment—possession, use, and carrying a
firearm during and in relation to a crime of violence: brandishing, in violation
of 18 U.S.C. §§ 2 and 924(c) (2012)—because conspiracy to commit a Hobbs Act
robbery, the predicate offense, is not a crime of violence (“COV”). Second,
Lewis maintains that the district court erred by including the four-level
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                                 No. 17-50526
§ 3B1.1(a) enhancement in his sentencing guidelines calculation. Third, Lewis
contends that the sentence was procedurally and substantially unreasonable.

      At oral argument, both parties agreed that under United States v. Davis,
903 F.3d 483, 484–86 (5th Cir. 2018), petition for cert. filed (Oct. 3, 2018)
(No. 18-431), Lewis’s conviction of conspiracy to commit Hobbs Act robbery
(count 1) cannot serve as the underlying COV predicate for his initial § 924(c)
conviction (count 23). Accordingly, we vacate the conviction on count 23. Fur-
thermore, because that conviction affected the sentences for the other § 924(c)
convictions (counts 25 and 26), “the proper remedy . . . is to vacate the entire
sentence and remand for resentencing.” United States v. Aguirre, 926 F.2d
409, 410 (5th Cir. 1991).

                                          I.
      Lewis and his co-defendant, Brandon Grubbs, participated in a series of
jewelry store robberies in Austin and Houston, Texas, between November 2014
and November 2015. Lewis was involved in a robbery in Strongsville, Ohio, in
June 2015. After his arrest in November 2015, Grubbs reached a plea agree-
ment to testify against Lewis at trial.

      Lewis was charged in a second superseding indictment with twenty-
seven counts, including conspiracy to interfere with commerce by threats or
violence, in violation of 18 U.S.C. § 1951 (count 1); money laundering, in viola-
tion of 18 U.S.C. § 1956 (counts 2–14); spending proceeds, in violation of
18 U.S.C. § 1957 (count 15); interference with commerce by threats or violence,
in violation of 18 U.S.C. §§ 2 and 1951 (counts 16–22); possession, use, and
carrying a firearm during and in relation to a crime of violence: brandishing,
in violation of 18 U.S.C. §§ 2 and 924(c) (counts 23–26); and felon in possession
of a firearm, in violation of 18 U.S.C. §§ 2 and 922(g) (count 27). Lewis was
later convicted on 25 of 27 counts and acquitted on two of the money laundering
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                                      No. 17-50526
counts (counts 2 and 3).

       The court granted the government’s motion to dismiss count 24 for rea-
sons unrelated to this appeal. 1 On the counts that did not require a mandatory
minimum (counts 1, 4–22, and 27; collectively the “non-§ 924(c) counts”), the
court determined that the advisory guidelines yielded 360 months to life.
Limited by the statutory maximums, however, the court imposed a sentence of
240 months on counts 1, 4–14, and 16–22 and 120 months on counts
15 and 27. 2 The court determined that the sentences on those counts should
be served concurrently. The court then sentenced Lewis to an 84-month man-
datory minimum on count 23, see 18 U.S.C. § 924(c)(1)(A)(ii), a 300-month man-
datory minimum on count 25, see id. § 924(c)(1)(C)(i), and a 300-month manda-
tory minimum on count 26. See id. The sentences on counts 23, 25, and 26
(collectively the “§ 924(c) counts”) were to be served consecutively to one
another and to the sentences on the non-§ 924(c) counts, as required by statute.
See id. § 924(c)(1)(D)(ii).

                                             II.
       Lewis contends that his conviction and sentence on count 23—knowingly
using, carrying, or brandishing a firearm to interfere with commerce by rob-
bery, in violation of 18 U.S.C. §§ 2 and 924(c)—should be vacated because the
predicate offense, conspiracy to commit a Hobbs Act robbery, is not a COV.
“Whether a particular offense is a [COV] is a question of law for the court to
resolve.” United States v. Buck, 847 F.3d 267, 274 (5th Cir.) (citation omitted),
cert. denied, 138 S. Ct. 149 (2017). Because Lewis failed to raise this in the



       1 Count 24 related to the “possession, use, and carrying a firearm during and in rela-
tion to a crime of violence: brandishing,” in violation of 18 U.S.C. §§ 2 and 924(c).
       2 The statutory maximum for counts 1, 4–14, and 16–22 was 240 months, and the
statutory maximum for counts 15 and 27 was 120 months.
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                                   No. 17-50526
district court, we review it for plain error.       See United States v. Suarez,
879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). “A plain error that affects
substantial rights may be considered even though it was not brought to the
court’s attention.” FED. R. CRIM. P. 52(b).

      Plain-error review proceeds in four steps. First, “there must be an error
or defect . . . [a] ‘deviation from a legal rule’ [] that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the appellant.” Puck-
ett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano,
507 U.S. 725, 732–33 (1993)). Second, the error must be plain; that is, “the
legal error must be clear or obvious, rather than subject to reasonable dispute.”
Id. Third, “the error must have affected the appellant’s substantial rights,
which in the ordinary case means he must demonstrate that it ‘affected the
outcome of the district court proceedings.’”        Id. (quoting Olano, 507 U.S.
at 734). Fourth, “if the above three prongs are satisfied, [we have] the discre-
tion to remedy the error—discretion which ought to be exercised only if the
error ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting Olano, 507 U.S. at 736).

                                         III.
      Section § 1951 (which codified the Hobbs Act) provides, in relevant part,
that “[w]hoever . . . obstructs, delays, or affects commerce or the movement of
any article or commodity in commerce, by robbery or extortion or attempts or
conspires so to do, or commits or threatens physical violence to any person or
property in furtherance of a plan or purpose to do anything” is liable under the
statute. 3 Relatedly, § 924(c) punishes “any person who, during and in relation


      3 18 U.S.C. § 1951 (emphasis added). Lewis was also charged per § 2, which makes
one who aids or abets “an offense against the United States” liable as a principal.
18 U.S.C. § 2.
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                                        No. 17-50526
to any crime of violence . . . uses or carries a firearm.” 18 U.S.C. § 924(c)(1)(A).
As defined in § 924(c)(3), a COV is
       an offense that is a felony and [] (A) has as an element the use,
       attempted use, or threatened use of physical force against the per-
       son or property of another, or (B) that by its nature, involves a sub-
       stantial risk that physical force against the person or property of
       another may be used in the course of committing the offense.[ 4]
       At oral argument, the government conceded, “[I]t is true in this case that
Davis is presently binding precedent on this court, and that the [§] 924(c) count
. . . count 23, which is linked to Lewis’s conspiracy to commit Hobbs Act
robbery, which was count 1, must be vacated . . . .” Consequently, both sides
agree that in the wake of Davis, the conviction for conspiracy to commit Hobbs
Act robbery (count 1) may not serve as the COV predicate for the § 924(c)
conviction (count 23).

       “[C]onspiracy to commit an offense is merely an agreement to commit an
offense.” Davis, 903 F.3d at 485 (citing United States v. Gore, 636 F.3d 728,
731 (5th Cir. 2011)). Consequently, conspiracy to commit Hobbs Act robbery
fails to satisfy the requirements of § 924(c)(3)(A)’s elements clause because it
“does not necessarily require proof that a defendant used, attempted to use, or
threatened to use force.” Id. Further, the “residual clause” of § 924(c)(3)(B) “is
unconstitutionally vague” under the categorical approach. Id. at 486. Accord-
ingly, in Davis we vacated the convictions of knowingly using, carrying, or
brandishing a firearm to aid and abet conspiracy to interfere with commerce
by robbery because the conspiracy charge did not qualify as a COV predicate
under either clause of § 924(c)(3).

       The reasoning in Davis mandates a similar result here, even under plain


       4 18 U.S.C. § 924(c)(3). Section 924(c)(3)(A) is commonly referred to as the “elements
clause” and § 924(c)(3)(B) as the “residual clause.” See, e.g., United States v. Eshetu, 898 F.3d
36, 38 n.2 (D.C. Cir. 2018); Buck, 847 F.3d at 274.
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                                        No. 17-50526
error review. The error was clear and affected Lewis’s substantial rights. 5
Further, it seriously affected the fairness, integrity, and public reputation of
judicial proceedings because Lewis’s sentence was enhanced by an additional
twenty-five years by the error. Failure to remedy the mistake would be mani-
festly unfair.

       We vacate the conviction (and the sentenced imposed) on count 23 for
knowingly using, carrying, or brandishing a firearm to interfere with com-
merce by robbery.          Additionally, given that the sentencing enhancements
applied to Lewis’s subsequent § 924(c) convictions (counts 25 and 26) were
predicated on his initial § 924(c) conviction (count 23), the sentence was
improperly enhanced under § 924(c)(1)(A)(ii) and (C)(i).                     Therefore, we
VACATE the entire sentence and REMAND for resentencing.

       Nothing in this opinion should be taken to cast doubt on the district
court’s initial application of the § 3B1.1(a) sentencing enhancement or on the
procedural or substantive reasonableness of the sentences imposed on the non-
§ 924(c) counts (1, 4–22, and 27). Although 18 U.S.C. § 3553 “as modified by
Booker, contains an overarching provision instructing district courts to ‘impose
a sentence sufficient, but not greater than necessary,’ to accomplish the goals
of sentencing,” 6 district courts have long possessed the authority “to exercise
broad discretion in imposing a sentence within a statutory range.” 7 We leave
it to the district court to decide the appropriate sentence on remand.




       5See Puckett, 556 U.S. at 135; see also Rosales-Mireles v. United States, 138 S. Ct.
1897, 1911 (2018).
       6   Kimbrough v. United States, 552 U.S. 85, 101 (2007) (quoting 18 U.S.C. § 3553(a)).
       7United States v. Booker, 543 U.S. 220, 233 (2005) (citation omitted); see also Dean v.
United States, 137 S. Ct. 1170, 1175 (2017) (citation omitted).
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