United States v. Robinson ( 2023 )

Case: 21-10708 Document: 00516749339 Page: 1 Date Filed: 05/12/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 12, 2023
No. 21-10708 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Edward Eugene Robinson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-352-2
______________________________
Before Richman, Chief Judge, and King and Higginson, Circuit
Judges.
Stephen A. Higginson, Circuit Judge:
Defendant-appellant Edward Eugene Robinson was convicted by a
jury on five counts arising from a series of armed robberies of cell-phone
stores in the Fort Worth, Texas area. He now appeals his convictions and
sentence. We AFFIRM.
I.
From May through September 2019, Robinson and coconspirators
Aaron Hardrick and Ncholeion Hollie cased and robbed multiple Sprint and
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T-Mobile stores in the Fort Worth area. Two of those robberies, committed
in June of 2019, are relevant to this appeal.
A.
First, on June 14, 2019, Robinson and Hardrick entered a Sprint store
in Fort Worth, wearing hoodies, baseball caps, masks, and gloves. Robinson
had a taser, and Hardrick had a gun. They maintained an open-line phone
call with Hollie, who was outside the store on lookout. Once inside, Hardrick
confronted the employee at the front counter, gripping a gun in his
waistband, and told her to go to the back of the store and open the safe. When
the employee did not immediately stand up, Hardrick slapped a cell phone
from her hand, grabbed her arm, and pushed her to the back of the store.
Hardrick removed the gun from his waistband and pointed it at her.
Robinson followed Hardrick and the employee to the storage room with a
duffel bag in hand.
Once in the room, Robinson got the store keys and locked the front
door. Robinson and Hardrick instructed the employee to open two safes and
told her to turn around and face the wall. After Robinson threatened her with
his taser, the employee complied, and Hardrick zip-tied her hands behind her
back. Robinson and Hardrick put all the phones from one of the safes into a
duffel bag, and eventually left the store through the back exit. Fort Worth
police later determined that Robinson and Hardrick had stolen $23,257.68
worth of merchandise.
Five days later, on June 19, 2019, Robinson and Hardrick robbed a
Sprint store in Bedford, Texas. Again, Robinson and Hardrick entered the
store, where only one employee was present, while Hollie acted as lookout.
Hardrick pointed his gun at the employee and pushed her into the back
storage room, followed by Robinson holding the duffel bag. Robinson and
Hardrick got the keys from the employee, locked the front door, and told the
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employee to open two safes. Though they attempted to zip-tie her, she “did
not let them,” and they proceeded to remove cell phones from the safe. The
employee managed to escape through the back door and began screaming for
help. As she ran away, Hardrick chased her, grabbed her by her hair, and hit
her in the head with his gun. Both Hardrick and the employee fell to the
ground. The employee ran into a neighboring business, and Hardrick
returned to the Sprint store. He and Robinson exited through the front door
with the duffel bag, having stolen $3,501.97 worth of cell phones.
Robinson, Hardrick, and other unidentified coconspirators later
robbed multiple T-Mobile stores in the Fort Worth area on July 7, July 21,
and July 23, 2019.
B.
Robinson was arrested on September 23, 2019 in Odessa, in the
Western District of Texas. He was transferred to the Northern District of
Texas, where a federal public defender was appointed to represent him.
On October 16, 2019, Robinson’s public defender and Hardrick’s
counsel filed a joint, unopposed motion to continue the time for the
Government to indict. In the motion, the parties noted that the Speedy Trial
Act requires that an indictment be returned within thirty days of the
defendant’s arrest or service with a summons. This meant that, for Robinson
and Hardrick, the indictment deadline was to be October 23, 2019. Counsel
stated that the Government was “planning to indict both defendants on
October 17, 2019,” i.e., the following day. The movants sought a forty-five-
day extension of the Speedy Trial Act’s indictment deadline “to allow time
to review discovery, investigate the case, discuss the case and discovery with
their clients, and engage in plea negotiations with the government.” They
contended that “the granting of th[e] continuance would be in the interest of
judicial economy, would serve the ends of justice, and would outweigh the
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interest of the public in a speedy trial.” The magistrate judge granted the
motion the next day, setting the deadline to indict as December 9, 2019.
On December 3, 2019—six days before the Government’s extended
deadline to indict—a grand jury returned an indictment charging Robinson,
Hardrick, and Hollie on three counts related to the robberies.
On January 15, 2020, a grand jury charged Robinson with five counts
in a superseding indictment: (1) conspiracy to interfere with commerce by
robbery, based on the robberies dated June 14, June 19, July 7, July 21, and
July 23, 2019, in violation of 18 U.S.C. § 1951(a); (2) interference with
commerce by robbery, based on the June 14 robbery, in violation of 18 U.S.C.
§§ 1951(a) and 2; (3) using, carrying, and brandishing a firearm during a
crime of violence, i.e., the June 14 robbery, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii) and 2; (4) interference with commerce by robbery, based
on the June 19 robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and
(5) using, carrying, and brandishing a firearm during a crime of violence, i.e.,
the June 19 robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2.
Throughout 2020, Robinson cycled through multiple lawyers. On
November 16, 2020, Robinson through trial counsel filed a motion to dismiss
the indictment based on a Speedy Trial Act violation. Robinson asserted that
his original public defender did not consult him when she decided to move
for a continuance of the time to indict. He pointed to the absence of any
“signature or mark” on the motion “indicat[ing] that he has given his
express or implied consent to afford the government more time in which to
seek formal charges against him.” Robinson contended that his Speedy Trial
Act rights were therefore violated because his December 3, 2019 indictment
came down too long after his arrest.
The district court denied the motion. The court noted that
Robinson’s counsel had requested an extension of the Government’s
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deadline to indict and explained that the Speedy Trial Act excludes time
“resulting from a continuance granted by any judge . . . at the request of the
defendant or his counsel.” The court rejected Robinson’s assertion that his
consent was required for the filing of such a motion.
Shortly before trial, the district court docketed four pro se filings it
received by mail from Robinson. Among those filings was a “supplemental”
motion to dismiss on the basis of purported Speedy Trial Act violations, in
which Robinson re-urged his prior motion’s assertion that his original public
defender moved to continue the indictment deadline without consulting him,
and contended that “[i]f not for the additional time given to the government
by [counsel]’s motion for a continuance, the very strong likelihood exists that
Mr. Robinson would not have been indicted.” At a status conference held
the same day, the district judge orally denied all of Robinson’s pro se motions
without prejudice.
C.
Robinson’s jury trial lasted from March 8 through March 10, 2021.
The Government and defense counsel agreed that the case was about
identity—that is, whether Robinson was one of the people who committed
the robberies. The Government called a number of witnesses and presented
evidence seeking to show that Robinson was among the robbers of the cell-
phone stores. The Government’s evidence included eyewitness
identifications of Robinson, records from Robinson’s phone showing contact
with his coconspirators during the robberies, police identification of
Robinson based on surveillance footage, identification of Robinson’s voice on
phone-call audio from both robberies, and FBI expert testimony placing
Robinson near cell towers in the area of the crime scenes on both June 14 and
June 19. The defense did not call any witnesses.
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At the end of trial, the district judge read the jury charge. As to counts
two and four1—affecting commerce by robbery—the charge read as follows:
Title 18, United States Code, Section 1951(a), makes it a crime
for anyone to obstruct, delay, or affect commerce by robbery.
Robbery means the unlawful taking or obtaining of or attempting
or conspiring to unlawfully take or obtain personal property
from the person or in the presence of another, against her will,
by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to her person or property in her
custody or possession.
The jury charge continued:
For you to find the defendant guilty of this crime, you must be
convinced that the government has proved each of the
following beyond a reasonable doubt:
First: That the defendant unlawfully obtained or attempted
to obtain personal property from a person or in her
presence, against her will;
Second: That the defendant did so by means of actual or
threatened force, or violence, or fear of injury,
immediate or future, to her person or property in her
custody or possession; and
Third: That the defendant’s conduct in any way or degree
obstructed, delayed or affected commerce or the
movement of any article or commodity in
commerce.
_____________________
1
There is no dispute on appeal about the jury instructions on the conspiracy charge
(Count 1).
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As to counts three and five—using, carrying, or brandishing a firearm
during and in relation to a crime of violence—the jury charge instructed as
follows:
Title 18, United States Code, Section 924(c)(1) makes it a
crime for anyone to knowingly use, carry, or brandish a firearm
during and in relation to a crime of violence.
For you to find the defendant guilty of this crime, you must be
convinced that the government has proven each of the
following beyond a reasonable doubt:
First: That the defendant committed the crime alleged in
Counts Two and Four. I instruct you that affecting
commerce by robbery is a crime of violence; and
Second: That the defendant aided and abetted Aaron
Hardrick in committing the crime of violence alleged
in Counts Two and Four, and knew in advance that
Aaron Hardrick would be armed.
On March 10, 2021, the jury returned its verdict, finding Robinson
guilty on all five counts: the conspiracy count (Count 1), and the two
robberies (Counts 2 and 4) with their respective firearm counts (Counts 3
and 5).
D.
Robinson was sentenced on July 8, 2021. The district court calculated
that Robinson had a total offense level of 35 as to the primary robbery counts
(Counts 1, 2, and 4), which, with a criminal history category of IV, resulted
in a guideline range of 235 to 293 months’ imprisonment. As to the firearm
counts (Counts 3 and 5), Robinson faced a mandatory minimum of seven
years per count, to run consecutively with other counts. See 18 U.S.C.
§ 924(c)(1)(A)(ii).
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Robinson sought a downward variance, based on his difficult
childhood and family support. The Government sought an upward variance,
based on victim impact and a comparison to Hardrick’s sentence. The court
varied upward, imposing a sentence of 124 months as to Counts 1, 2, and 4,
and 84 months as to counts 3 and 5, with all counts to run consecutively,
resulting in a total sentence of 540 months. The court also sentenced
Robinson to three years of supervised release as to Counts 1, 2, and 4, and
five years of supervised release as to Counts 3 and 5, with all counts to run
concurrently. The court also ordered restitution.
The district judge explained that an upward variance was warranted
“for several reasons.” He explained:
[T]his defendant is a determined recidivist. That is, he has
continually engaged in criminal conduct for almost four
decades, indeed going back to when he was 14-years-old up to
the present time. The only time that his criminal conduct has
ever been hindered is during his terms of incarceration.
Indeed, even while he was incarcerated the defendant has had
numerous disciplinary problems. Additionally, the defendant
has went [sic] on a spree of robberies which were not
considered in the guideline calculations . . . .
...
If you look at Mr. Robinson’s criminal record, he came out with
a criminal history category of IV. However, there were five
felonies or other crimes that he committed as an adult that
weren’t even included in his . . . criminal history category
calculations. I think that it’s a very good case, indeed the
classic case, where the underrepresentation of somebody’s
criminal history category — at a minimum, his criminal history
category to me and his history of violent crimes looks more to
me like it should be a category VI, at the very least a category
V criminal history. I think it’s understated as the way the
calculations came up.
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I think it’s also worth noting that this is one of the most heinous
crimes, if not the most heinous crime, that I’ve had to preside
over as a judge, either on the State District Court, as a Federal
prosecutor when I used to do criminal work, on the Court of
Appeals for the State of Texas, or indeed these last two years
presiding over 300 criminal sentencings here in the Northern
District of Texas. This is absolutely abhorrent. This defendant
has no regard for the law. No regard for the welfare of others
or their property.
I think it’s also worth noting that this sentence and this
variance is necessary and appropriate to avoid unnecessary
sentencing disparity with the codefendant, Mr. Hardrick, who
received the same sentence. Indeed, you could argue that I
could go even higher, considering that all the evidence
demonstrated to me that Mr. Robinson was the leader in this
spree.
The court stated that the 540-month sentence was sufficient, but not greater
than necessary, to comply with the purposes set forth in 18 U.S.C. § 3553(a).
Robinson objected to the sentence on Eighth Amendment grounds,
arguing that the sentence was excessive. The court overruled the objection.
Robinson timely appealed.
II.
Robinson first contends that he suffered a Speedy Trial Act violation
because he was indicted more than thirty days after his arrest. We review
interpretations of the Speedy Trial Act de novo and factual findings for clear
error. United States v. Vinagre-Hernandez, 925 F.3d 761, 765 (5th Cir. 2019)
(citation omitted).
Under the Speedy Trial Act, an indictment or information must be
filed within thirty days from arrest or service with a summons related to the
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charges. 18 U.S.C. § 3161(b). When calculating elapsed time under the
Speedy Trial Act, courts must exclude “[a]ny period of delay resulting from
a continuance granted by any judge . . . at the request of the defendant or his
counsel,” so long as “the judge granted such continuance on the basis of his
findings that the ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A) (emphasis added). Moreover, in granting such a
continuance, the court must “set[] forth, . . . either orally or in writing, its
reasons for [so] finding.” Id.Here, because Robinson was arrested on September 23, 2019, his
initial indictment deadline was October 23, 2019. His counsel moved for a
forty-five-day continuance of the deadline on October 16, 2019. The next
day, the magistrate judge granted the continuance, for the reasons set forth
in counsel’s motion and because “the ends of justice served by the granting
of [the] continuance outweigh the best interests of the public and the
defendant in a speedy trial.” This continuance thus satisfies the statutory
criteria for excluding the resulting delay from Robinson’s thirty-day Speedy
Trial Act period. Id. Accordingly, Robinson’s thirty-day clock stopped on
October 17, and was to resume in December. On December 3—with almost
a week left to go before expiration of the continued deadline—Robinson was
indicted. His thirty days had not elapsed, and his indictment therefore did
not violate the Speedy Trial Act.
Robinson does not dispute that the continuance satisfies the statutory
language for exclusion. He contends instead that the extended time should
nonetheless not be excluded because his counsel did not consult with him
before filing the motion to continue. This argument is without merit.
First, this contention runs counter to the statutory text of the Speedy
Trial Act, which expressly carves out delays resulting from continuances
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sought “at the request of the defendant or his counsel.” 18 U.S.C.
§ 3161(h)(7)(A) (emphasis added). The text does not require that counsel
obtain her client’s consent to seek a continuance.
Second, while this court has not yet addressed this question, every
other circuit to have considered the issue has ruled that, for Speedy Trial Act
purposes, it is not necessary that the defendant consent to a continuance
sought by his counsel. See United States v. Gates, 709 F.3d 58, 66 (1st Cir.
2013) (“[D]efense counsel has the power to seek a[] [Speedy Trial Act]
continuance without first informing his client or obtaining his client’s
personal consent.”); United States v. Lynch, 726 F.3d 346, 356 (2d Cir. 2013)
(“[A] district court may grant a continuance sought by counsel without the
consent of the defendant so long as the district court determines that the ends
of justice would be served . . . and sets forth its reasons on the record.”);
United States v. Stewart, 628 F.3d 246, 254 (6th Cir. 2010) (“[W]here an
attorney seeks a continuance without the client’s approval, . . . the Speedy
Trial Act ‘does not require a defendant’s consent to the continuance’ in
order for a judge to be able to grant a motion in furtherance of the ends of
justice.” (citation omitted)); United States v. Herbst, 666 F.3d 504, 510 (8th
Cir. 2012) (“[The defendant’s] opposition to his counsel’s request for a
continuance does not prevent that time from being excluded from the speedy
trial calculation.”); United States v. Daychild, 357 F.3d 1082, 1094 (9th Cir.
2004) (excluding time resulting from continuances that were requested by
counsel “without [the defendant]’s knowledge or consent”); cf. United
States v. Fields, 39 F.3d 439, 443 (3d Cir. 1994) (“The defendant’s arguments
are disturbing because he would have us order the dismissal of his indictment
based on continuances that his own attorney sought.”); United States v.
Bryant, 134 F.3d 364 (Table), 1998 WL 39393, at *3 (4th Cir. 1998) (per
curiam) (unpublished) (rejecting defendant’s argument that his consent was
necessary for a continuance in the Speedy Trial Act context because such a
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rule “would put the district court in the precarious position of having to
determine whether a defendant’s legal counsel or the defendant himself is
actually speaking for a defendant”). This court would be alone among courts
of appeals in holding that a defendant’s consent is necessary for the purpose
of obtaining an excludable continuance under the Speedy Trial Act. We join
our sister circuits in rejecting such a requirement.
Third, giving effect to a motion by counsel—without requiring
consent or acquiescence by the defendant—is consistent with the well-
established principle that, “because counsel is the defendant’s agent, the
defendant ‘must accept the consequences of the lawyer’s decisions.’”
United States v. Cabello, 33 F.4th 281, 295 (5th Cir. 2022) (cleaned up)
(quoting Taylor v. Illinois, 484 U.S. 400, 418 (1988)). Indeed, in New York v.
Hill, the Supreme Court held, in a unanimous opinion, that counsel could
effectively waive a defendant’s right to a timely trial under the Interstate
Agreement on Detainers. 528 U.S. 110 (2000). Noting that even “the most
basic rights of criminal defendants are subject to waiver,” id. at 114 (cleaned
up) (citations omitted), and that “[s]cheduling matters are plainly among
those for which agreement by counsel generally controls,” id. at 115, the
Court rejected the defendant’s argument that his assent was required for
waiver. Id.; see also Gonzalez v. United States, 553 U.S. 242, 250 (2008) (“To
hold that every instance of waiver requires the personal consent of the client
himself or herself would be impractical.”). These principles reinforce our
conclusion that, for the purposes of excluding time from a defendant’s
Speedy Trial Act calculation, the defendant is bound by counsel’s decision
to seek a continuance, and his personal consent is not required.
For these reasons, Robinson’s Speedy Trial Act claim fails. The
district court did not err in denying Robinson’s motion to dismiss the
indictment on Speedy Trial Act grounds.
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III.
Robinson also argues that the district court erred in its jury
instructions on his § 924(c) charges (Counts 3 and 5). He contends that the
court erroneously defined the predicate offense, a “crime of violence,” as
including attempted Hobbs Act robbery. Because trial counsel did not object
to the instruction below, this issue is reviewed for plain error.
To establish plain error, a litigant must show that (1) the district court
erred, (2) the error was clear and obvious, and (3) the error affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009) (citations
omitted). If he makes such a showing, this court has the discretion to correct
the error if the error seriously affects the “fairness, integrity or public
reputation of judicial proceedings.” Id. (citations omitted).
Section 924(c) imposes criminal penalties against “any person who,
during and in relation to any crime of violence . . . uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C.
§ 924(c)(1)(A). The statute defines a crime of violence as a felony offense
that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).2
Here, Robinson was charged with two violations of § 924(c), one
pertaining to the June 14 robbery and the other to the June 19 robbery. The
predicate “crime of violence” for each violation is the corresponding
substantive Hobbs Act robbery, charged in Counts 2 and 4, respectively.
_____________________
2
The statute also defined “crime of violence” in the alternative as a felony offense
“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)(B). But in 2019, the Supreme Court struck this provision as unconstitutionally
vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019).
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In charging the jury on Robinson’s Hobbs Act robbery counts, the
district court correctly instructed that the first element was satisfied if the
Government had met its burden to prove that “the defendant unlawfully
obtained or attempted to obtain personal property from a person or in her
presence, against her will.” See 18 U.S.C. § 1951(a) (imposing criminal
penalties on anyone who “obstructs, delays, or affects commerce . . . by
robbery or extortion or attempts or conspires so to do.”).
Then, on the § 924(c) counts, the district court instructed the jury
that the predicate-offense requirement was satisfied if the Government had
met its burden to prove that “the defendant committed the crime alleged in
Counts Two and Four.” The court then said, “I instruct you that affecting
commerce by robbery is a crime of violence.” The district court thus did not
distinguish between completed and attempted robbery.
At the time of Robinson’s trial, this instruction was proper under Fifth
Circuit case law. In United States v. Smith, this court held that “[w]hen a
substantive offense would be a crime of violence under 18 U.S.C.
§ 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.”
957 F.3d 590, 595 (5th Cir. 2020) (emphasis added) (quoting United States v.
Dominguez, 954 F.3d 1251, 1261 (9th Cir. 2020)). But after Robinson’s trial,
the Supreme Court took up the question in United States v. Taylor, and
ultimately rejected this conclusion. 142 S. Ct. 2015 (2022). The Court
explained that attempted Hobbs Act robbery has two elements: “(1) The
defendant intended to unlawfully take or obtain personal property by means
of actual or threatened force, and (2) he completed a ‘substantial step’
toward that end.” Id. at 2020. “And whatever a substantial step requires, it
does not require the government to prove that the defendant used, attempted
to use, or even threatened to use force against another person or his
property.” Id. Accordingly, “[w]hatever one might say about completed
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Hobbs Act robbery, attempted Hobbs Act robbery does not satisfy” the
§ 924(c) definition of a “crime of violence.” Id. (emphasis in original).
In light of Taylor, the Government here concedes that the instruction
to Robinson’s jury was clear error and thus satisfies prongs one and two of
this court’s plain-error review. This is correct, notwithstanding that the law
was different at the time of trial. “[W]here the law at the time of trial was
settled and clearly contrary to the law at the time of appeal[,] it is enough that
an error be ‘plain’ at the time of appellate consideration.” Johnson v. United
States, 520 U.S. 461, 468 (1997); see also United States v. Escalante-Reyes, 689
F.3d 415, 423 (5th Cir. 2012) (en banc) (“[T]he ‘plainness’ of the error
should be judged by the law at the time of appeal.”)
The remaining questions, therefore, are (1) whether the error affected
Robinson’s substantial rights, and, if so, (2) whether the court should
exercise its discretion to correct the error because failing to do so would
seriously affect the fairness, integrity or public reputation of the proceeding.
See Puckett, 556 U.S. at 135. To show that the error affected his substantial
rights, Robinson must “‘show a reasonable probability that, but for the
error,’ the outcome of the proceeding would have been different.” United
States v. Jones, 935 F.3d 266, 272 (5th Cir. 2019) (quoting Molina-Martinez v.
United States, 578 U.S. 189, 194 (2016)). Robinson has not made such a
showing.
The error here is the district court’s failure to distinguish between
completed and attempted robbery when instructing on the § 924(c) counts,
or to otherwise clarify that attempted robbery is not a “crime of violence”
under § 924(c). A review of the trial record indicates that, even if this error
were corrected, Robinson still would have been convicted on the § 924(c)
counts.
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At trial, there was no suggestion, through the evidence or arguments,
that the robberies at issue were attempted rather than completed. The store
clerks from both the June 14 and June 19 robberies (i.e., the two predicates)
testified about their respective incidents, from the robbers’ entry, to the theft
of the merchandise, to their eventual escape. The predicate offenses did not
involve aborted, foiled, or otherwise partial robberies. The Government did
not state in its closing argument that attempt is sufficient to convict, nor did
it otherwise call the jury’s attention to this avenue for conviction.
Accordingly, the record suggests no possibility that the jury convicted
Robinson of Hobbs Act robbery on an attempt theory and therefore a similar
impossibility that his § 924(c) convictions rested on such a basis.
On the contrary, the fact that completed robberies occurred was
essentially undisputed at trial. The issue was not whether, or how, or to what
degree, the stores were robbed, but rather who did it. As both parties made
clear in their opening statements, the key dispute in the case was identity.
Defense counsel said in his opening: “[t]he[se] robberies probably did occur
based on what the prosecutor mentioned, but you’re not going to be able to
put my client at the scene because he’s not there.” In service of this theory,
counsel’s cross examination consistently focused on witnesses’
identifications of Robinson. In closing, defense counsel pressed this theory
home, seeking to cast doubt on the Government’s audio, video, and
photographic evidence, and telling the jury, “That’s not my client leaving
the store. Look at it.” Our review of the trial record reveals no meaningful
challenge to, or dispute about, the events constituting the predicate
robberies—much less a dispute going to an “attempt” theory. We see no
basis to conclude that the jury may have opted for an avenue to conviction
that received no airtime at trial.
While Robinson asserts that “it is not clear” on which theory—
attempted or completed—the jury relied, this generalized contention does
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not suffice to carry his burden to show a reasonable probability that the
outcome would have been different if the jury were instructed that attempt
does not qualify. See United States v. Olano, 507 U.S. 725, 734 (1993) (noting
that the difference between a harmless-error inquiry and a plain-error
substantial-rights inquiry is that under plain-error review, “[i]t is the
defendant . . . who bears the burden of persuasion”).3
Robinson correctly points out that in multiple cases this court has
vacated convictions based on jury instructions that combine valid and invalid
predicates. See, e.g., Jones, 935 F.3d at 273-74; United States v. McClaren, 13
F.4th 386, 413-14 (5th Cir. 2021); United States v. Hankton, 51 F.4th 578, 591-
94 (5th Cir. 2022). But those cases indeed reinforce that this determination,
at least on plain-error review, is case-specific and turns on the underlying
predicates as well as the evidence and arguments presented at trial. For
example, in United States v. Jones, this court vacated § 924(c) convictions
because the record demonstrated a reasonable probability that the jury would
not have convicted on § 924(c) absent the erroneous instruction that a RICO
conspiracy was a crime of violence. 935 F.3d at 273-74. The court pointed
out that the invalid predicate (RICO conspiracy) and the valid predicate
(controlled-substance conspiracy) were “not coextensive,” and that the
RICO conspiracy “included a broader range of conduct.” Id. at 273. The
court discussed the government’s opening statement and closing argument,
which suggested that the RICO conspiracy encompassed conduct beyond the
_____________________
3
At oral argument, Robinson’s counsel offered a more specific theory of why the
jury might have convicted based on attempt. The theory involved a jury question regarding
the meaning of “personal property from a person or in her presence,” and the implications
of the fact that the store clerk robbed on June 19 escaped through the back door while the
robbery continued. While we are ultimately unpersuaded by the theory, we note that we
do not consider it in the first place. The argument was not included in Robinson’s briefs,
and we do not consider arguments raised for the first time at oral argument. Jackson v.
Gautreaux, 3 F.4th 182, 188 n.* (5th Cir. 2021) (collecting cases).
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drug conspiracy, as well as witness testimony that “described RICO conduct
unrelated to the controlled-substance conspiracy.” Id. The court ultimately
found that, while it was a “close question,” the appellants had demonstrated
plain error because there was a reasonable probability that the jury would not
have convicted on § 924 if the invalid predicate were excluded from the
verdict form. Id. at 274-75. McClaren and Hankton also involved a RICO-
versus-drug-offense problem and cited Jones in vacating for plain error.
McClaren, 13 F.4th at 413-14; Hankton, 51 F.4th at 591-94.
This case does not present the same problems. Here, the invalid
predicate (attempted robbery) features nowhere at trial—through the
evidence, arguments, or elsewhere. It is for this reason that Robinson cannot
show a reasonable probability that, but for the error, the outcome of the
proceedings would have been different. See United States v. Montemayor, 55
F.4th 1003, 1011 (5th Cir. 2022) (declining to vacate a § 924(c) conviction
based on an invalid predicate, and distinguishing Jones by explaining, “[t]he
reason for reversal in Jones was that jurors were given two theories of guilt,
and some jurors may have accepted only the invalid one,” and that because
this case presented no such problem, “under plain error review, . . . the
substantial rights of the defendants were [not] affected”); see also United
States v. Steward, 793 F. App’x 188, 190 (4th Cir. 2019) (finding no reason to
vacate a § 924(c) conviction based on the erroneous instruction that
conspiracy to commit Hobbs Act Robbery was a valid predicate because
“[t]he conspiracy offense and the robbery offense are coextensive, and the
conspiracy offense related solely to the robbery offense”).
Because Robinson has not shown that his substantial rights were
affected by the erroneous jury instruction, he fails plain-error review. We
hold alternatively that, even if the error affected his substantial rights, we
would not exercise our discretion to correct the error because, for the reasons
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discussed, the error here did not seriously affect the fairness, integrity or
public reputation of the proceeding. See Puckett, 556 U.S. at 135.
We accordingly affirm Robinson’s convictions despite the error.
IV.
Robinson also argues that the district court erred by varying upward
based on coconspirator Hardrick’s sentence, rather than on national
sentencing statistics. He concedes (1) that this issue is subject to plain-error
review because he did not object in the district court, and (2) that his
argument is foreclosed by our precedent. He is correct on both fronts, and
his claim therefore fails.
This court has held that it is plain error for a sentencing court to vary
downward based solely on national sentencing statistics. United States v.
Willingham, 497 F.3d 541, 545-46 (5th Cir. 2007). The court explained in
Willingham that “[a]lthough the statistics may show a disparity . . . , there is
no indication that the disparity is unwarranted.” Id. at 544. Along similar
lines, the court in United States v. Naidoo rejected a defendant’s argument
that his sentence was unreasonable in light of national sentencing statistics.
995 F.3d 367, 383 (5th Cir. 2021). Quoting Willingham, the court explained
that “national averages of sentences with no details underlying the sentences
are unreliable to determine unwarranted disparity.” Id. (cleaned up)
(quoting Willingham, 497 F.3d at 544).
In light of this circuit law, the district court did not plainly err in
sentencing Robinson without reference to national sentencing statistics. We
affirm Robinson’s sentence as to this issue.
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V.
Finally, Robinson argues that the district court erred by varying
upward without a showing that Robinson and Hardrick were similarly
situated. He again concedes that this issue is reviewed only for plain error
because he did not object in the district court.
Robinson contends that he and Hardrick are “not necessarily similarly
situated . . . simply because they each have been convicted of the same
offense,” and that Hardrick was sentenced for robberies in both Texas and
California, while Robinson was only sentenced for Texas robberies. He also
asserts that the district court’s sentence did not “take into account
differences between their total offense levels, criminal history categories, and
aggravating factors present for one defendant and not the other.” Robinson
does not elaborate on what those differences are.
A sentencing court shall consider, among other factors, “the need to
avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). Courts may look to codefendants’ sentences in assessing the
(a)(6) factor. See, e.g., United States v. Garcia, 789 F. App’x 410, 413 (5th
Cir. 2019) (comparing the defendant’s sentence to that of a codefendant and
concluding that the two are not similarly situated and thus the disparity
between them was not unwarranted.). Here, the only distinction that
Robinson identifies between him and Hardrick is that some of Hardrick’s
convictions were for robberies in California. But this is a distinction without
a difference; Hardrick, like Robinson, was convicted on three robbery counts
and two related firearm counts. And he, like Robinson, was sentenced to 124
months per robbery count and 84 months per firearm count. Beyond this
attempted distinction, Robinson fails to explain in what ways he and
Hardrick—who committed the charged robberies together—are not
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similarly situated. He therefore provides this court with no basis for finding
an error in the sentencing court’s comparison between the two defendants.
Finally, even if there were an error, and even if the error were clear,
Robinson has not shown that it affected his substantial rights. To make this
showing, Robinson must “‘show a reasonable probability that, but for the
error,’ the outcome of the proceeding would have been different.” Jones,
935 F.3d at 272. The district court made clear that the sentence was also
based on Robinson’s history of recidivism, as well as his view that Robinson’s
criminal-history category failed fully to account for his lengthy criminal
history, that the crime was particularly “heinous” and “abhorrent,” and that
the evidence suggested that Robinson was in fact the “leader in this spree.”
Even without a comparison to Hardrick’s sentence, Robinson’s upward
variance was still supported by the “several [other] reasons” listed by the
court.
The district court did not plainly err in varying upward based in part
on Hardrick’s sentence. We affirm Robinson’s sentence as to this issue.
VI.
For the foregoing reasons, we AFFIRM Robinson’s convictions and
sentence.
21