United States v. Nathaniel Bowens

Case: 17-10822 Document: 00514695402 Page: 1 Date Filed: 10/24/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10822 United States Court of Appeals

Fifth Circuit

FILED

October 24, 2018

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff–Appellee,

versus

NATHANIEL BOWENS,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Nathaniel Bowens was tried and convicted of various crimes committed

during robberies of wireless-telecommunications stores in the Dallas-Fort

Worth area. On appeal, Bowens raises three issues. First, he contends that

the evidence was insufficient to support his conviction of using a firearm in

furtherance of Hobbs Act robbery under an aiding-and-abetting theory of

liability (count four). Second, Bowen maintains that we should vacate his

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sentence on his subsequent 18 U.S.C. § 924(c) conviction (count six) because

the evidence was insufficient to support his conviction on the predicate § 924(c)

conviction (count four). Third, he asserts, contrary to circuit precedent, that

Hobbs Act robbery does not qualify as a crime of violence (“COV”) predicate,

which is required for his § 924(c) convictions. We find no error and affirm.

I.

Bowens was convicted of conspiracy to interfere with commerce by

robbery, in violation of 18 U.S.C. § 1951(a) (2012) (count one); interference with

commerce by robbery, in violation of 18 U.S.C. §§ 2 and 1951(a) (counts three

and five); using, carrying, and brandishing a firearm during and in relation to,

and possessing and brandishing a firearm in furtherance of, a COV, in viola-

tion of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii) (count four); and using, carrying, and

brandishing a firearm during and in relation to, and possessing and brandish-

ing a firearm in furtherance of, a COV, in violation of 18 U.S.C. §§ 2 and

924(c)(1)(C)(i) (count six).

Bowens and others robbed several retail stores in the Dallas-Fort Worth

area between October 2015 and December 2016. Two men would enter a

wireless-telecommunications store when there were likely to be few customers.

The robbers would use masks and gloves to cover their faces and hands.

Because of this, witnesses at the various robberies were only able to identify

the individuals as African-American males. During the robberies, at least one

of the perpetrators would carry a handgun, and they would generally move any

persons toward the back of the location. The robbers would then fill trash bags

with inventory, including mobile smartphones, tablets, and other electronic

devices, from a store room in back. They would also steal money from cash

registers, then exit through the rear door, where a vehicle would be waiting.

The specific details of only one robbery are relevant on appeal. Bowens

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and an associate, Keon Blanks, robbed a T-Mobile store in Fort Worth. Blanks

testified about his role and claimed Bowens “had the gun,” while he (Blanks)

served as “the bagger.” When shown a surveillance photograph taken during

the robbery, Blanks identified himself as the man wearing a white shirt and

Bowens as the man in a black shirt. The photo shows the man in a black shirt

holding what seems to be a firearm, while an object, or gesture, in the shape of

a handgun appears under the shirt of the man in white. 1

Although it remains unclear whether both defendants possessed a gun

during the robbery (and exactly how many firearms were involved), the jury

found Bowens guilty on all five counts. The district court sentenced him to 400

months: 16 months on counts one, three, and five; 84 months on count four,

consecutive to the sentences imposed for counts one, three, and five; and 300

months on count six, consecutive to the sentences imposed for counts one,

three, four and five.

II.

Bowens asserts, inter alia, that the evidence was insufficient on count

four. Because Bowens properly preserved his challenge to sufficiency by mov-

ing for judgment of acquittal, we review this issue de novo. See, e.g., United

States v. Read, 710 F.3d 219, 226 (5th Cir. 2012). In “reviewing the sufficiency

of the evidence, [we] view[ ] all evidence . . . in the light most favorable to the

1 Based on the evidence, there is some confusion as to whether both defendants pos-

sessed a firearm during the robbery. The store manager, Adrian Ramirez, initially identified

Blanks (“the taller, skinnier one” wearing a white shirt) as the man that he remembered

possessing the handgun. Ramirez, however, later revised his testimony when shown surveil-

lance photos. Nonetheless, when asked whether he thought “their guns were real,” Ramirez

replied, “Yes.” Additionally, on cross-examination, Bowens’s trial counsel asked Blanks,

“And you’re aware that every one of your codefendants puts the gun with you. Isn’t that—

Are you aware of that?” Blanks answered, “Somewhat.” The attorney then asked, “Some-

what. Okay. But yet you still deny that you’ve ever owned a gun or ever had access to a gun.

Isn’t that correct?” Blanks answered, “That is correct.”

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[g]overnment with all reasonable inferences to be made in support of the jury’s

verdict.” United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997) (citation

omitted). “The evidence is sufficient to support a conviction if a rational trier

of fact could have found the essential elements of the crime beyond a reasona-

ble doubt.” Id. (citation omitted). We do not reevaluate “the weight of the

evidence or . . . the credibility of the witnesses.” 2

Bowens also contends that the Hobbs Act robbery charges (counts three

and five) may not serve as the COV predicates for his § 924(c) convictions

(counts four and six). Because he first raised this issue as part of a motion to

dismiss, it was properly preserved for appeal, so we review it de novo. 3

III.

Bowens was convicted of using, carrying, and brandishing a firearm dur-

ing and in relation to, and possessing and brandishing a firearm in furtherance

of, a COV, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii) (count four). In this

case, the COV predicate was Hobbs Act robbery, codified at 18 U.S.C. § 1951(a),

which makes it a federal crime, inter alia, to “obstruct[], delay[], or affect[]

commerce or the movement of any article or commodity in commerce, by rob-

bery.” 4 Relatedly, 18 U.S.C. § 2 provides that any individual who “aids” or

“abets” an offense against the United States is liable as a principal. As noted

2 United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005) (quoting United

States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)).

3 See United States v. Flores-Vasquez, 641 F.3d 667, 669 (5th Cir. 2011) (“This court

reviews de novo the characterization of a prior offense as a [COV].”); United States v. Jen-

nings, 195 F.3d 795, 797 (5th Cir. 1999) (“Since the issue of whether a crime constitutes a

[‘COV’] is a matter of statutory interpretation, we review this decision de novo . . . .”); see also

United States v. Credit, 95 F.3d 362, 364 (5th Cir. 1996).

4 The statute defines robbery, in relevant part, 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 . . . .” 18 U.S.C. § 1951(b)(1).

4

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in Standefer v. United States, 447 U.S. 10, 20 (1980), “[w]ith the enactment of

[§ 2], all participants in conduct violating a federal criminal statute are ‘princi-

pals.’ As such, they are punishable for their criminal conduct; the fate of other

participants is irrelevant.”

A.

The crux of Bowens’s claim is that he cannot be guilty of count four on

an aiding-and-abetting theory because he was the only person to use, carry, or

brandish a firearm during the robbery. He correctly asserts that “[o]ne cannot

aid or abet himself.” United States v. Shear, 962 F.2d 488, 495 n.10 (5th Cir.

1992).

In response, the government highlights circuit caselaw demonstrating

that it was not required to prove who was the principal actor. “In a prosecution

for aiding and abetting a crime, the [g]overnment need not identify a specific

person or group of individuals as the principal.” 5 Accordingly, the government

also asserts that “rather than instruct the jury to determine who was the prin-

cipal gunman, it instructed the jury on an aiding and abetting theory, which

required the government to prove only that ‘some person’ used a gun in further-

ance of the robbery.” Consequently, “the government did not, in its closing

argument, ask the jury to find that Bowens specifically carried the gun during

the robbery.”

A review of this circuit’s pattern jury instructions supports the govern-

ment’s position. To convict on count four, the jury was required to find the

5 United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996) (citation omitted); see also

United States v. Campa, 679 F.2d 1006, 1013 (1st Cir. 1982) (“Proving . . . that a specific

person is the principal is not an element of the crime of aiding and abetting. The identity of

the principal need not be established . . . . The prosecution need only prove that the substan-

tive offense [has] been committed by someone and . . . the defendant aided and abetted him.”);

Hendrix v. United States, 327 F.2d 971, 975 (5th Cir. 1964)).

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following four elements beyond a reasonable doubt:

First: That the offense of using, carrying, and brandishing a fire-

arm during and in relation to, and possessing and brandishing a

firearm in furtherance of a crime of violence, as charged in [c]ount

[f]our, was committed by some person in the course of committing

the offense of [i]nterference with [c]ommerce by [r]obbery, as al-

leged in [c]ount [t]hree;

Second: That the defendant associated with the criminal venture;

Third: That the defendant purposefully participated in the crim-

inal venture; and

Fourth: That the defendant sought by action to make that venture

successful.

The government presented evidence that was more than sufficient to establish,

beyond a reasonable doubt, each of the elements comprising count four.

With respect to the first element, evidence demonstrated that “some per-

son” used and brandished a firearm while interfering with commerce by rob-

bery. Bowens’s co-conspirator, Keon Blanks, testified that he and Bowens

robbed a T-Mobile store on October 5, 2015. Blanks further maintained that

during the robbery “Mr. Bowens had the gun” and that he (Blanks) “was the

bagger.” Surveillance photos from the robbery show Bowens (in a black shirt)

holding what seems to be a firearm, while an object or gesture that looks like

a handgun appears under Blanks’s white shirt. It remains unclear whether

both defendants used, carried, and brandished a firearm during the robbery,

but as the government correctly notes, viewed in the light most favorable to

the verdict, “a reasonable juror could easily have concluded beyond a reasona-

ble doubt that ‘the offense of using, carrying, and brandishing a firearm . . . in

furtherance of a [COV] . . . was committed by some person in the course of’” the

robbery. 6

6Bowens also asserts that “the Supreme Court recently refined the scope of aiding

and abetting [liability] under § 924(c).” In Rosemond v. United States, 572 U.S. 65, 67 (2014),

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Concerning the second element of count four—that the defendant asso-

ciated with the criminal venture—Bowens concedes on appeal that he was

involved in the October 5, 2015, robbery. This is supported by sufficient evi-

dence, including testimony from Blanks and Ramirez, as well as surveillance

photos from inside the store.

Finally, with respect to the last two elements—purposeful participation

and seeking by action to make the venture successful—the evidence also ade-

quately supports the jury’s finding. Bowens and Blanks purposely entered the

store with the intent to steal inventory, including several brand-new cell

phones. A weapon was used by either one or both to obtain the merchandise

without paying for it, and both, at one point or another, carried a bag full of

stolen goods.

Ultimately, Bowens’s theory—admitting that he was the principal of the

crime for which he was convicted to avoid liability as an accomplice—is too

clever by half. Viewed in the light most favorable to the verdict, evidence was

more than sufficient to sustain the jury’s finding, beyond a reasonable doubt,

that Bowens was guilty of aiding and abetting the offense of using a firearm in

furtherance of Hobbs Act robbery.

the Court held that “the [g]overnment makes its case by proving that the defendant actively

participated in the underlying drug trafficking or violent crime with advance knowledge that

a confederate would use or carry a gun during the crime’s commission.” Here, and unlike in

Rosemond, Bowens was fully aware that a gun would be used during the commission of the

offense, and “[t]he jury . . . could infer [intent] from [Bowens’s] advance knowledge that the

plan included a firearm.” Id. at 79. Furthermore, the Rosemond Court maintained that “for

purposes of aiding and abetting law, a person who actively participates in a criminal scheme

knowing its extent and character intends that scheme’s commission.” Id. at 77. Thus, be-

cause Bowens purposefully facilitated or encouraged the use of a firearm and had “advance

knowledge of [its] presence,” the evidence was sufficient to support the jury’s finding on the

first element. Id. at 69, 81.

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B.

Section 924(c)(1)(C)(i) states, “In the case of a second or subsequent

conviction under this subsection, the person shall . . . be sentenced to . . . not

less than 25 years . . . .” Bowens maintains that if the evidence was insuffi-

cient to support his conviction on the predicate § 924(c) offense (count four),

then we must find that this sentencing enhancement was improperly applied

to his conviction on count six. Because, however, the evidence was more than

sufficient on count four, the sentence under count six was properly enhanced. 7

IV.

Bowens contends that Hobbs Act robbery, see 18 U.S.C. § 1951(a), (b)(1),

does not qualify as a COV predicate as defined in § 924(c)(1)(A). 8 The term

COV is defined in § 924(c)(3)(A), which “contains both an elements clause and

a residual clause.” United States v. Davis, 903 F.3d 483, 485 (5th Cir. 2018)

(per curiam), petition for cert. filed (Oct. 3, 2018) (No. 18-431). Under the ele-

ments clause, an offense qualifies as a COV if it “has as an element the use,

attempted use, or threatened use of physical force against the person or prop-

erty of another.” 18 U.S.C. § 924(c)(3)(A). Alternatively, under the residual

clause, an offense qualifies as a COV if it “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.” Id. § 924(c)(3)(B).

In Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018), the Court held that

7 Cf. United States v. Chapman, 851 F.3d 363, 373 (5th Cir. 2017) (finding that “[t]he

district court erred in declining to apply the 25-year enhanced penalty to [the] second con-

viction under § 924(c)”).

8 Section 924(c)(1)(A) provides, in relevant part, “[A]ny person who, during and in

relation to any [COV] . . . uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm, shall, in addition to the punishment provided for such [COV] . . . if the

firearm is brandished, be sentenced to . . . not less than 7 years.”

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language identical to that in § 924(c)(3)(B) was unconstitutionally vague. 9

Consequently, we recently found, based on Dimaya, that “§ 924(c)’s residual

clause is unconstitutionally vague.” Davis, 903 F.3d at 486. Therefore, to

affirm Bowens’s convictions on counts four and six, we must find that Hobbs

Act robbery qualifies as a COV predicate under § 924(c)(3)(A)’s elements

clause.

As the government correctly notes, binding circuit precedent forecloses

Bowens’s claim that Hobbs Act robbery is not a COV predicate under 18 U.S.C.

§ 924(c)(3)(A). In Buck, we held that “[i]t was not error—plain or otherwise—

for the district court to classify a Hobbs Act robbery as a [COV].” 10 We have

reiterated Buck in at least five cases. 11 Accordingly, we reject Bowens’s conten-

tion that Hobbs Act robbery fails to qualify as a COV predicate.

9 The statute there, 18 U.S.C. § 16(b), provides, “The term [‘COV’] means . . . any other

offense that is a felony and 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.”

10Buck, 847 F.3d at 275 (emphasis added). In determining whether a crime qualifies

as a COV, we apply the categorical approach, see id. at 274, which requires us to look at the

elements of an offense, rather than the specific facts of a case. See Taylor v. United States,

495 U.S. 575, 600 (1990); see also Leocal v. Ashcroft, 543 U.S. 1, 7 (2004).

11 See Davis, 903 F.3d at 485 (“Whatever arguments may be made opposing Hobbs Act

robbery’s inclusion under the elements clause as a [COV], Dimaya has not affected them, and

therefore, they are foreclosed to us in light of Buck.” (emphasis added)); United States v. Gar-

cia, 735 F. App’x 837, 838 (5th Cir. 2018) (per curiam) (“[A]s [the defendant] concedes, our

court held in Buck, 847 F.3d at 274−75, that Hobbs Act robbery qualifies as a [COV] under

the [elements] clause of § 924(c)(3)(A).”), cert. denied, No. 18-5847, 2018 U.S. LEXIS 5882

(Oct. 9, 2018); United States v. Jones, 854 F.3d 737, 740 n.2 (5th Cir.) (citing Buck to support

its conclusion that “carjacking is also a [COV] under § 924(c)(3)(A)”), cert. denied, 138 S. Ct.

242 (2017); United States v. Miller, 681 F. App’x 381, 383 (5th Cir. 2017) (per curiam) (“We

also recently held that Hobbs Act robbery satisfies Section 924(c)(3)(A)’s [COV] definition.

[Buck, 847 F.3d at 274−75]. [The defendant’s] argument as to Section 924(c)(3)(A) is fore-

closed.”); United States v. Bell, 680 F. App’x 329, 330 (5th Cir. 2017) (per curiam) (“We also

recently held that Hobbs Act robbery satisfies Section 924(c)(3)(A)’s [COV] definition. [Buck,

847 F.3d at 274–75]. . . . [The defendant] cannot show error, plain or otherwise, in the char-

acterization of his robbery offenses as [COVs] under Section[] 924(c)(3)(A) . . . .”).

This also accords with the position taken by many sister circuits, including the Second,

9

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AFFIRMED.

Third, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits. See, e.g., United States

v. Melgar-Cabrera, 892 F.3d 1053, 1060–66 (10th Cir. 2018), petition for cert. filed (Oct. 12,

2018) (No. 18-6302); United States v. Hill, 890 F.3d 51, 55–60 (2d Cir. 2018); United States v.

Gooch, 850 F.3d 285, 290–92 (6th Cir.) (“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 [COV] under

§ 924(c)(3)(A).”), cert. denied, 137 S. Ct. 2230 (2017); United States v. Anglin, 846 F.3d 954,

964–65 (7th Cir.), rev’d on other grounds, 138 S. Ct. 126 (2017); United States v. Robinson,

844 F.3d 137, 140−44 (3d Cir. 2016) (finding that Hobbs Act robbery is a § 924(c) COV when

the defendant was simultaneously found guilty of brandishing a firearm during the robbery),

cert. denied, 138 S. Ct. 215 (2017); In re Fleur, 824 F.3d 1337, 1340−41 (11th Cir. 2016);

United States v. House, 825 F.3d 381, 387 (8th Cir. 2016), cert. denied, 137 S. Ct. 1124 (2017);

United States v. Howard, 650 F. App’x 466, 468 (9th Cir. 2016). All have found arguments

like Bowens’s to be without merit. See, e.g., Melgar-Cabrera, 892 F.3d at 1060–66; Hill,

890 F.3d at 55–60.

10