United States v. Gooch

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0050p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

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> No. 15-4360

v. │

│

│

ERIC GOOCH, │

Defendant-Appellant. │

┘

Appeal from the United States District Court for

the Northern District of Ohio at Cleveland.

No. 1:13-cr-00282—Solomon Oliver, Jr., Chief District Judge.

Argued: January 27, 2017

Decided and Filed: March 2, 2017

Before: GUY, CLAY, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan,

for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,

for Appellee. ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand

Rapids, Michigan, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE,

Cleveland, Ohio, for Appellee.

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OPINION

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RALPH B. GUY, JR., Circuit Judge. Defendant Eric Gooch appeals his jury

convictions and sentences for conspiracy to obstruct commerce by means of robbery,

No. 15-4360 United States v. Gooch Page 2

obstructing commerce by means of robbery, armed bank robbery, and carrying a firearm

during the commission of a crime of violence. We affirm.

I.

Defendant helped plan armed robberies of a discount store and two banks. During

the discount store robbery, defendant accompanied two others to the business in a

getaway car. Defendant planned to enter, but changed his mind. Defendant witnessed

Shawn Caldwell give a firearm to codefendant Larnell Tripp, who robbed the cashier and

the business’s safe at gunpoint. A month later, defendant, Caldwell, and Greg Williams

robbed a bank. Caldwell remained in the car while defendant and Williams brandished

firearms and robbed the bank’s vault. Three weeks later, defendant accompanied

Caldwell and Williams to another bank, but remained outside the bank entrance.

Williams robbed the bank at gunpoint, placing the firearm against the bank manager’s

head and pistol-whipping a security guard. Defendant neither admitted nor denied

knowing prior to the robbery that Williams would use a firearm.

The prosecution charged defendant in a seven-count indictment consisting of two

counts of conspiracy to obstruct commerce by means of robbery, a.k.a. “Hobbs Act

robbery” (18 U.S.C. §§ 1951(a), 1951(b)(1), and 2); three counts of using, carrying and

brandishing a firearm during and in relation to a crime of violence (18 U.S.C.

§§ 924(c)(1)(A) and 2); and two counts of armed bank robbery (18 U.S.C. §§ 2113(a),

2113(d), and 2).1 Although the district court initially adjudged defendant incompetent to

stand trial, he later passed multiple competency evaluations.

Defendant filed and subsequently withdrew notice of his intent to present evidence

that he was not guilty by reason of insanity. Defendant also sought to represent himself.

The district court engaged defendant in an extended self-representation colloquy and

1

The prosecution indicted defendant alongside codefendants Larnell Tripp, Jr., and Ashley White. Other

participants in the robberies at issue – Shawn Caldwell and Greg Williams, Jr. – pleaded guilty to their involvement

and separately appealed their sentences. Defendant Gooch is the sole party to this appeal.

No. 15-4360 United States v. Gooch Page 3

allowed him to self-represent with appointed counsel as standby. Defendant cross-

examined some witnesses but did not present an affirmative defense. He instead moved

for a judgment of acquittal based on insufficient evidence, which the district court denied.

The jury found defendant guilty, and the district court sentenced him to 664 months’

incarceration.

On appeal, defendant challenges the sufficiency of the evidence that he aided and

abetted the discount store robbery and second bank robbery, alleges the district court

erred in allowing him to self-represent and in sentencing him to consecutive sentences on

his § 924(c) convictions, and argues that Hobbs Act robbery is not a crime of violence.

II.

a. Sufficiency of the Evidence

We review the sufficiency of the evidence for a conviction “in the light most

favorable to the prosecution” to determine whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Circumstantial evidence alone may sustain a

conviction. United States v. Tarwater, 308 F.3d 494, 504 (6th Cir. 2002).

Aiding and abetting in the carrying of a firearm during commission of a crime of

violence requires that the defendant “associate himself with the venture, that he

participates in it as something he wishes to bring about, and that he seek by his action to

make it succeed.” United States v. Lowery, 60 F.3d 1199, 1202 (6th Cir. 1995) (quoting

United States v. Lawson, 872 F.2d 179, 181 (6th Cir. 1983)). The prosecution must show

that defendant had advance knowledge that a firearm would be used in the course of the

crime. Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014). The intent requirement

of aiding and abetting “preserves the distinction between assisting the predicate . . . crime

and assisting the broader § 924(c) offense.” Id. at 1248.

No. 15-4360 United States v. Gooch Page 4

i. Discount Store Robbery

Defendant argues that he was merely present during Tripp’s armed robbery of the

discount store and therefore not guilty as an aider and abettor. See United States v.

Winston, 687 F.2d 832, 835 (6th Cir. 1982). The record undermines his claim.

Defendant admitted, and his codefendants corroborated, that he helped plan the robbery

and witnessed Caldwell give Tripp a firearm. Active participation in the planning phase

of an armed robbery constitutes intent to bring about the offense. See Phifer v. United

States, 221 F.3d 1335, 2000 WL 924451, at *2 (6th Cir. 2000) (unpublished table

decision) (affirming conviction for aiding and abetting armed robbery where defendant

knew of principal’s intent to rob victim at gunpoint). The prosecution thus put forth

sufficient evidence that defendant aided and abetted the armed robbery of the discount

store.

ii. Second Bank Robbery

No testimony or other record evidence established – or rebutted – that defendant

knew Williams possessed a firearm during the second bank robbery. The prosecution

relies on defendant’s participation in the previous two armed robberies and knowledge

that firearms figured in both crimes to argue that defendant had advance knowledge

Williams would use a firearm in the last bank robbery.

We have reversed § 924(c) convictions where jury instructions were insufficiently

clear as to the defendant’s intent to aid an armed offense. United States v. Henry, 797

F.3d 371, 374-77 (6th Cir. 2005) (applying plain error review to unpreserved jury

instruction issue). Henry established that the intent instruction must go to the entire

crime – the predicate offense and the violence component under § 924(c) – such that the

jury convicts the defendant of armed bank robbery. Id. at 374.

Here, the jury instructions amply apprised the jurors that they must find defendant

“knew in advance that his confederate would brandish, carry, or use a firearm during the

No. 15-4360 United States v. Gooch Page 5

robbery.” We presume that jurors follow the district court’s instructions. United States

v. Lester, 238 F. App’x 80, 83 (6th Cir. 2007) (collecting cases). Defendant’s

participation in the two prior armed robberies with most of the same codefendants is

strong circumstantial evidence that he was aware of the group’s modus operandi of using

firearms in the commission of robberies. Viewing the evidence in a light most favorable

to the prosecution, a rational trier of fact could find that defendant had advance

knowledge Williams would use a firearm during the final bank robbery. Sufficient

evidence therefore supported defendant’s aiding-and-abetting convictions.

b. Right to Counsel

Where a defendant asserts a violation of the right to counsel, we review the district

court’s factual findings for clear error and its legal conclusions de novo. United States v.

Cromer, 389 F.3d 662, 679 (6th Cir. 2004). We have recognized that a district court’s

decision that a mentally compromised defendant may self-represent “merits deference.”

United States v. Stafford, 782 F.3d 786, 791 (6th Cir. 2015).

Defendant claims the district court deprived him of his right to counsel by

allowing him to self-represent when he was incapable of giving a knowing and intelligent

waiver. See Faretta v. California, 422 U.S. 806, 835 (1975). In this circuit, district

courts must conduct a colloquy akin to that in section 1.02 of the Bench Book for United

States District Judges. See United States v. McBride, 362 F.3d 360, 366 (6th Cir. 2004);

see also United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir. 1987).

The district court’s discussion with defendant coincided nearly verbatim with the

colloquy provided in the Bench Book. The district court also thoroughly admonished

defendant that a trained lawyer could better represent him and that it was unwise to self-

represent. Defendant nevertheless chose to represent himself with counsel as standby.

Whether he chose wisely is not the issue on appeal. See Godinez v. Moran, 509 U.S. 389,

400 (1993); see also United States v. Dubrule, 822 F.3d 866, 880 (6th Cir. 2016)

No. 15-4360 United States v. Gooch Page 6

(“[G]iven the frequency with which pro se defendants . . . espouse strange [legal]

theories, we decline to hold that the district court abused its discretion by failing to order

a competency hearing on the basis of strange statements contained in a few . . . pre-trial

motions.”).

Defendant asserts he was mentally incompetent to waive his right to

representation. Because he has not appealed the district court’s competency ruling, it is

not before us. Nevertheless, the record shows that the district court gave, and defendant

seized, abundant opportunities to raise the issue of his competency. Although an initial

evaluation found defendant incompetent to stand trial, each of the multiple subsequent

evaluations and hearings found that he was competent despite certain “malingering”

behaviors. With the assistance of standby counsel, defendant moved for a competency

evaluation soon after asserting his right to self-represent. The district court again found

him competent.

The competency standard for standing trial is identical to the standard for self-

representation. Godinez, 509 U.S. at 396-97. It is immaterial that the district court did

not review defendant’s competency with a specific eye toward self-representation: it

adjudged him mentally competent, and found that his waiver of the right to counsel was

knowing and intelligent. The district court did not deny defendant the right to counsel by

allowing him to self-represent.

c. Consecutive Sentencing

Defendant challenges the district court’s imposition of consecutive 25-year

sentences for his multiple § 924(c) convictions. He raises this argument solely to

preserve it for appeal to the Supreme Court of the United States. Defendant contends that

the Supreme Court wrongly decided Deal v. United States, 508 U.S. 129 (1987). There,

the Court held that when a defendant is convicted of multiple § 924(c) offenses in the

same case, each conviction is a second or subsequent conviction for purposes of § 924(c),

No. 15-4360 United States v. Gooch Page 7

allowing multiple consecutive sentences. Deal is still good law, and we are bound by the

decision unless and until the Supreme Court overrules it. See Hohn v. United States,

524 U.S. 236, 252-53 (1998).

d. Crime of Violence

Defendant contends that a Hobbs Act conviction does not qualify as a crime of

violence under § 924(c)(3). Because defendant did not argue this issue below, we review

it for plain error. United States v. Olano, 507 U.S. 725, 732-35 (1993).

Liability for a crime of violence under § 924(c)(3) attaches where the predicate

offense is a felony and

(A) has as an element the use, attempted use, or threatened use of physical force

against the person or property of another, or (B) that by its nature, involves a

substantial risk that physical force against the person or property of another may

be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). To determine whether a conviction offense is a “crime of

violence,” we apply a categorical approach “focus[ing] on the statutory definition of the

offense, rather than the manner in which the offender may have violated the statute in a

particular circumstance.” United States v. Rafidi, 829 F.3d 437, 444 (6th Cir. 2016)

(quoting United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013)). Where, as here, a

defendant is convicted of violating a divisible statute, we review a narrow category of

documents to determine which portion the defendant violated. See id.

The Hobbs Act provides that

Whoever in any way or degree 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 in violation

of this section shall be fined under this title or imprisoned not more than twenty

years, or both.

No. 15-4360 United States v. Gooch Page 8

18 U.S.C. § 1951(a). It goes on to define robbery as

the unlawful taking or obtaining of personal property from the person or in the

presence of another, against his will, by means of actual or threatened force, or

violence, or fear of injury, immediate or future, to his person or property, or

property in his custody or possession, or the person or property of a relative or

member of his family or of anyone in his company at the time of the taking or

obtaining.

18 U.S.C. § 1951(b)(1). It defines extortion as “the obtaining of property from another,

with his consent, induced by wrongful use of actual or threatened force, violence, or fear,

or under color of official right.” 18 U.S.C. § 1951(b)(2).

Defendant contends that one can satisfy the offense elements of the Hobbs Act

without using, attempting, or threatening physical force against the person or property of

another as required by § 924(c)(3)(A). For example, defendant posits that one could

nonviolently extort property from someone under color of official right. This is only so if

the Hobbs Act is indivisible, i.e., if Hobbs Act extortion and Hobbs Act robbery are one

and the same offense. See Rafidi, 829 F.3d at 444.

Defendant relies on Mathis v. United States to argue that the Hobbs Act is

indivisible because robbery and extortion are alternative means of violating the statute

rather than distinct offenses. 136 S. Ct. 2243 (2016). In Mathis, the Supreme Court

considered a state burglary statute containing “alternative ways of satisfying a single

locational element,” id. at 2250, and held that crimes of conviction encompassing a wider

range of conduct than the generic offense cannot qualify as predicate offenses for

sentencing enhancement under the Armed Career Criminal Act, id. at 2251. A single

crime of conviction under the Hobbs Act could not satisfy the elements of both robbery

and extortion: the former requires a taking from another “against his will,” while the

latter is a taking “with his consent.” See 18 U.S.C. § 1951(b)(1)-(2). This difference

goes not to the mere means of violating the Hobbs Act, but to “the ‘constituent parts’ of

[the] crime’s legal definition – the things the ‘prosecution must prove to sustain a

No. 15-4360 United States v. Gooch Page 9

conviction.’” Id. at 2248 (quoting Black’s Law Dictionary 634 (10th ed. 2014)).

Accordingly, Mathis is inapplicable.

That different portions of § 1951(b) provide the distinct elements of robbery and

extortion suggests the statute is divisible. In Rafidi, we interpreted 18 U.S.C. § 111,

which “sets forth three separate crimes” – a misdemeanor, a felony, and an aggravated

felony. Id. at 445 (quotation omitted). Because the defendant in Rafidi was charged

with, and convicted of, violating § 111(b), the aggravated felony, we looked to the

elements of § 111(b) only. Id. (“We thus consider whether § 111(b) – and not § 111(a),

by itself – has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.” (quotation omitted)). Applying Rafidi’s

approach, we conclude that § 1951 is a divisible statute setting out separate crimes of

Hobbs Act robbery and Hobbs Act extortion.

Where a divisible statute “could be violated in a way that would constitute a crime

of violence and in a way that would not, we look beyond the statutory language and

examine a limited set of documents to determine whether the conviction necessarily

depended on the commission of a crime of violence.” Rafidi, 829 F.3d at 444 (quotations

omitted); see also Shepard v. United States, 554 U.S. 13, 19-23 (2005) (discussing

relevant documents). The indictment charged defendant with “Conspiracy to Commit

Hobbs Act Robbery” and “Hobbs Act Robbery.” The jury instructions referred to

“robbery as that term is defined in [18 U.S.C.] § 1951(b)(1).” We thus consider only the

portion of the Hobbs Act defining robbery for the elements of the conviction offense.

A conviction under § 1951(b)(1) requires a finding of “actual or threatened force,

or violence, or fear of injury, immediate or future.” Section 1951(b)(1) clearly “has as an

element the use, attempted use, or threatened use of physical force against the person or

property of another” as necessary to constitute a crime of violence under § 924(c)(3)(A).

The jury therefore convicted defendant of a crime of violence.

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Other circuits have unanimously acknowledged Hobbs Act divisibility and found

that Hobbs Act robbery constitutes a crime of violence. In United States v. Hill, the

Second Circuit held that the defendant committed “Hobbs Act robbery,” and looked to

the definition of robbery in § 1951(b)(1) for the elements of the offense. 832 F.3d 135,

138-39 (2d Cir. 2016). The Second Circuit rejected the defendant’s argument that one

could commit Hobbs Act robbery by “putting the victim in fear of injury” without

violence or the threat of violence. Id. at 142-43. It further noted that a hypothetical

nonviolent violation of the statute, without evidence of actual application of the statute to

such conduct, is insufficient to show a “realistic probability” that Hobbs Act robbery

could encompass nonviolent conduct. Id. at 139-40, 142-43 (citing Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007)). Five other circuit courts have reached similar

conclusions. See United States v. Anglin, 846 F.3d 954, 964-65 (7th Cir. 2017); United

States v. Howard, 650 F. App’x 466, 467-68 (9th Cir. 2016); In re Saint Fleur, 824 F.3d

1337, 1340 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016);

cf. United States v. Robinson, 844 F.3d 137, 141-44 (3d Cir. 2016) (defendant’s Hobbs

Act robbery conviction is a § 924(c) crime of violence because he was simultaneously

convicted of brandishing a firearm during the robbery), id. at 150-51 (Fuentes, J.,

concurring) (Hobbs Act robbery is categorically a crime of violence under § 924(c)).

We join our sister circuits in ruling that Hobbs Act robbery constitutes a crime of

violence. The district court did not plainly err in sentencing defendant under § 924(c).

AFFIRMED.