     Case: 16-10127      Document: 00513909335         Page: 1    Date Filed: 03/13/2017




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

                                    No. 16-10127
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         March 13, 2017
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

JESSE LEE BELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-376-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       A jury found Jesse Lee Bell guilty of four counts of interference with
commerce by robbery in violation of 18 U.S.C. §§ 2 and 1951 (“Hobbs Act”
robbery); one count of attempted interference with commerce by robbery in
violation of Sections 2 and 1951; one count of using, carrying, and brandishing
a firearm during and in relation to a crime of violence in violation of Sections
2 and 924(c)(1)(A)(ii); four counts of using, carrying, and brandishing a firearm


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10127

during and in relation to a crime of violence in violation of Sections 2 and
924(c)(1)(C)(i); and one count of felon in possession of a firearm in violation of
Sections 922(g)(1) and 924(a)(2).
      Six months after trial but before sentencing, Bell moved to dismiss the
five counts in his superseding indictment stemming from Section 924(c) and to
vacate the jury’s guilty verdicts as to those counts. In support of the motion,
Bell argued that his Hobbs Act robbery offenses did not qualify as crimes of
violence for purposes of Section 924(c). The district court denied the motion.
      On appeal, Bell argues that his robbery offenses do not qualify as crimes
of violence. Consequently, the Section 924(c) counts in his indictment failed to
state an offense, and the district court should have dismissed the five Section
924(c) counts and vacated the jury verdicts as to those counts. His arguments
rest on the following, both of which he must show to prevail: (1) the “crime of
violence” definition in Section 924(c)(3)(B) is unconstitutionally vague in light
of Johnson v. United States, 135 S. Ct. 2551 (2015), and (2) Section 1951(a)
robbery offenses are not categorically crimes of violence under Section
924(c)(3)(A) because they can be accomplished in ways that do not require
violent physical force.
      We review Bell’s claims for plain error. See United States v. Blevins, 755
F.3d 312, 319 (5th Cir. 2014). We recently held that 18 U.S.C. § 16(b) remains
constitutional in the wake of Johnson. United States v. Gonzalez-Longoria,
831 F.3d 670, 672 (5th Cir. 2016) (en banc), petition for cert. filed, (Sept. 29,
2016) (No. 16-6259). We agree with a later non-precedential opinion that
because Section 16(b) and Section 924(c)(3)(B) are materially identical, there
is no merit in arguing that Section 924(c)(3)(B) was rendered unconstitutional
by Johnson. United States v. Davis, ___ F. App’x ____, 2017 WL 436037, at *2
(5th Cir. Jan. 31. 2017).       Although the Supreme Court recently granted



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                                  No. 16-10127

certiorari in Lynch v. Dimaya, 137 S. Ct. 31 (2016), to consider whether Section
16(b) is unconstitutionally vague in light of Johnson, our own precedent
controls unless and until that precedent is altered by a decision of the Supreme
Court. See Wicker v. McCotter, 798 F.2d 155, 157–58 (5th Cir. 1986).
      We      also   recently   held   that   Hobbs    Act     robbery     satisfies
Section 924(c)(3)(A)’s crime-of-violence definition. United States v. Buck, 847
F.3d 267, 274–75 (5th Cir. 2017). Bell’s argument as to Section 924(c)(3)(A) is
foreclosed.
      Bell cannot show error, plain or otherwise, in the characterization of his
robbery offenses as crimes of violence under Sections 924(c)(3)(A) or (B).
      AFFIRMED.




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