United States v. Wooten

Case: 21-20068 Document: 00516057140 Page: 1 Date Filed: 10/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 15, 2021
No. 21-20068
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Robert Charles Wooten,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-333-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Robert Charles Wooten appeals his conviction of five counts of
brandishing a firearm during a crime of violence (“COV”). Wooten was
found guilty on those five counts after jurors first found him guilty of five
predicate counts of interference with commerce by robbery.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-20068 Document: 00516057140 Page: 2 Date Filed: 10/15/2021
No. 21-20068
Prior to trial, Wooten moved to dismiss the firearms charges on the
ground that interference with commerce by robbery, Hobbs Act robbery, is
not categorically a COV. See 18 U.S.C. § 1951(a). The motion was denied.
This court reviews de novo the denial of a motion to dismiss counts in an
indictment. United States v. Cline, 986 F.3d 873, 875–76 (5th Cir. 2021).
A defendant’s sentence is governed by 18 U.S.C. § 924(c)(1)(A)(ii) if
he or she has brandished a firearm during and in relation to a COV. The
relevant definition of a COV in this case is found in the “elements clause”: a
felony that “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” § 924(c)(3)(A).
We have previously held that Hobbs Act robbery is a COV under the
elements clause and may be a predicate conviction for sentencing under
Section 924(c)(1)(A)(ii). See United States v. Buck, 847 F.3d 267, 274–75 (5th
Cir. 2017). The Supreme Court invalidated a different COV definition as
being unconstitutionally vague, but we have held that the definition relying
on the elements of the offense is still sound. United States v. Smith, 957 F.3d
590, 592–93 (5th Cir.), cert. denied, 141 S. Ct. 828 (2020) (analyzing the
invalidation of Section 924(c)(3)(B) in United States v. Davis, 139 S.Ct. 2319,
2336 (2019)). Wooten argues that whether Hobbs Act robbery is a COV is
an open question because the Supreme Court has granted a writ of certiorari
to consider a sister circuit’s holding that attempted Hobbs Act robbery is not
a COV. See United States v. Taylor, 979 F.3d 203, 208 (4th Cir. 2020), cert.
granted, 141 S. Ct. 2882 (2021). One of Wooten’s five counts of conviction
under the Hobbs Act was for an attempt. Nonetheless, until the Supreme
Court has made a holding to the contrary, we apply our circuit precedent. See
Wicker v. McCotter, 798 F.2d 155, 157–58 (5th Cir. 1986). To the extent that
Wooten is making a vagueness challenge to the elements clause, an issue he
did not raise in the district court, he fails to show plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009). AFFIRMED.
2