Case: 20-10228 Document: 00515798483 Page: 1 Date Filed: 03/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 26, 2021
No. 20-10228 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Andre Levon Glover; Maurice Lamont Davis,
Defendants—Appellants.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-94-1
Before King, Smith, and Haynes, Circuit Judges.
Per Curiam:*
Appellants Andre Levon Glover and Maurice Lamont Davis were
convicted of multiple offenses for a series of robberies committed in June
2014. They appealed, and we affirmed all but one of their convictions,
vacated their sentences in full, and remanded to the district court for entry of
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-10228
a revised judgment and for resentencing.1 United States v. Davis, 784 F.
App’x 277, 278 (5th Cir. 2019) (per curiam).2 On remand, the district court
resentenced Glover to 271 months of imprisonment and three years of
supervised release and Davis to 300 months of imprisonment and three years
of supervised release. Appellants timely appealed their new sentences. We
AFFIRM the district court’s judgments.
I. Glover’s Challenge
On appeal, Glover argues that the district court erred in applying a six-
level firearm enhancement under U.S. Sentencing Guideline
§ 2B3.1(b)(2)(B) for three of his four Hobbs Act robbery convictions (Counts
Three, Four, and Five, but not Count Six). He contends that because he was
convicted of a § 924(c) violation in connection with his fourth Hobbs Act
conviction (Count Six), the firearm enhancement cannot be applied to
Counts Three, Four, and Five under U.S. Sentencing Guideline § 2K2.4. As
Glover objected to the application of this enhancement before the district
court, we review the district court’s application de novo. United States v.
Valdez, 726 F.3d 684, 692 (5th Cir. 2013).
The sentencing guideline for § 924(c) convictions is Guideline
§ 2K2.4. U.S. Sent’g Guidelines Manual § 2K2.4 (U.S. Sent’g
Comm’n 2018). Note 4 of that guideline explains that when a sentence
under that guideline is imposed in conjunction with a sentence for an
underlying offense, no weapon enhancement, such as Guideline § 2B3.1, is
to be applied for that underlying offense. Id. cmt. n.4. For further
1
Before we made this holding, the Supreme Court had remanded this case to our
court twice in Davis v. United States, 138 S. Ct. 1979, 1979 (2018) (mem.), and United States
v. Davis, 139 S. Ct. 2319, 2336 (2019).
2
We vacated Count Two, an 18 U.S.C. § 924(c) conviction. Davis, 784 F. App’x
at 278.
2
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No. 20-10228
clarification, note 4 provides an example: “if a defendant is convicted of two
armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in
connection with only one of the robberies, a weapon enhancement would
apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c)
conviction.” Id.
Just like the example, Glover’s six-level enhancement was applied to
only those robbery convictions which were not the basis for his § 924(c)
conviction. Therefore, we hold that the district court did not err in applying
the six-level enhancement to Glover’s convicted robberies charged in Counts
Three, Four, and Five, and we affirm his sentence.
II. Davis’s Challenge
Turning to Davis’s appeal, he argues that his conviction for Count
Eight—being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2)—should be vacated in light of the Supreme
Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).3 After a
panel of our court affirmed Davis’s Count Eight conviction twice,4 the
3
Davis makes two additional arguments on appeal, but he agrees that those
arguments are foreclosed. First, he argues that the district court erred in enhancing his
sentence for Count Eight by concluding that his three previous burglary convictions under
Texas Penal Code § 30.02(a)(1), (3) were “violent felon[ies]” under the Armed Career
Criminal Act of 1984, 18 U.S.C. § 924(e). However, we have already held that burglary
under Texas Penal Code § 30.02(a)(1), (3) is a “violent felony.” United States v. Herrold,
941 F.3d 173, 182 (5th Cir. 2019) (en banc), cert. denied, 141 S. Ct. 273 (2020) (mem.).
Second, Davis argues that the district court erred in concluding that Count Six (a Hobbs
Act robbery conviction) was a “crime of violence” under 18 U.S.C. § 924(c). A panel of
our court has already rejected that argument. United States v. Davis, 903 F.3d 483, 485 (5th
Cir. 2018) (per curiam), aff’d in part, vacated in part on other grounds, 139 S. Ct. 2319 (2019).
Accordingly, both of Davis’s additional arguments are foreclosed by precedent and lack
merit. See Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
4
United States v. Davis, 677 F. App’x 933 (5th Cir. 2017) (per curiam), vacated on
other grounds, 138 S. Ct. 1979 (2018) (mem.); Davis, 784 F. App’x at 277.
3
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Supreme Court held in Rehaif that a defendant charged with violating
§ 922(g) must “kn[o]w he belonged to the relevant category of persons
barred from possessing a firearm” at the time of his offense. Id. at 2200.
Davis contends that three Rehaif errors occurred: (1) the Government
presented no evidence at trial that Davis knew he was a felon at the time he
committed the offenses, (2) the grand jury did not find that Davis had such
knowledge, and (3) the district court did not instruct the jury that it must find
that Davis had such knowledge.
On the sufficiency-of-the-evidence issue, the question is whether,
based on the evidence presented at trial, any reasonable jury could have found
the essential elements of the crime beyond a reasonable doubt. United States
v. Staggers, 961 F.3d 745, 756 (5th Cir.), cert. denied, 141 S. Ct. 388 (2020)
(mem.); see also United States v. Burden, 964 F.3d 339, 348 (5th Cir.), petition
for cert. filed, No. 20-5939 (U.S. Sept. 30, 2020), and petition for cert. filed sub
nom. Scott v. United States, No. 20-5949 (U.S. Sept. 30, 2020). Assuming
arguendo that de novo review applies,5 we hold that a reasonable jury would
have found beyond a reasonable doubt that Davis knew of his felon status at
the time of the offense. At trial, Davis stipulated that he was a felon and a
witness confirmed his status. Davis does not claim that he was ignorant of
his status as a felon when he committed his § 922(g) offense, much less point
to any evidence showing that such a claim was viable. As Davis concedes, we
have previously held, on two occasions, that a defendant’s stipulation to his
felon status at trial was legally sufficient to support his § 922(g)(1)
conviction. Staggers, 961 F.3d at 757; Burden, 964 F.3d at 348. Accordingly,
5
In Burden, we observed that there may be inconsistency in our case law on
whether de novo or plain error review applies for a Rehaif sufficiency-of-the-evidence claim
when, as here, the defendant raised general objections but not Rehaif objections to the
sufficiency of the evidence. See 964 F.3d at 347 & n.6. Because we need not resolve this
issue today, we decline to do so.
4
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we reach the same conclusion here. See Jacobs v. Nat’l Drug Intel. Ctr., 548
F.3d 375, 378 (5th Cir. 2008) (explaining that “one panel of our court may
not overturn another panel’s decision, absent an intervening change in the
law, such as by a statutory amendment, or the Supreme Court, or our en banc
court”).
On the indictment and jury instruction issues, we review Davis’s
challenges for plain error, as Davis did not raise them in district court.
Staggers, 961 F.3d at 754. Under that standard of review, Davis must show
that “there was (1) error, (2) that is plain, and (3) that affects [his] substantial
rights.” Id. (internal quotation marks and citations omitted). If those
conditions are met, then we may exercise our discretion to correct the error
if the error “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 755. Because Rehaif errors in the indictment and
jury instructions are plain errors, see Burden, 964 F.3d at 347, our analysis
turns on whether the errors affected Davis’s substantial rights.
To show that an error affected his substantial rights, Davis must
“show a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” Staggers, 961 F.3d at 755 (internal
quotation marks and citations omitted). Assessing the record as a whole, we
conclude that Davis cannot meet this burden. First, as we determined above,
there was legally sufficient evidence—Davis’s stipulation to being a felon at
trial and the witness’s confirmation of his felon status—for a reasonable jury
to convict Davis for Count Eight. See id. (stating that a Rehaif error does not
affect a defendant’s substantial rights unless “there is a reasonable
probability that a properly instructed jury viewing the evidence actually
admitted at trial would have returned a different verdict”). Additionally, in
assessing this prong, we can consider judicially noticeable facts, which
further support the conclusion that Davis was not ignorant of his status; for
example, not long before his § 922(g) offense, Davis had been sentenced to
5
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18 months of imprisonment for a felony burglary. United States v. Huntsberry,
956 F.3d 270, 285-86 (5th Cir. 2020); see also Burden, 964 F.3d at 348
(holding that a defendant could not show that Rehaif errors in the indictment
and jury instructions affected his substantial rights when he “stipulated at
trial [to being a] felon[]” and had recently been released from prison for the
felony offense). It is thus “unrealistic” to believe “that the government
would have been unable to prove” that Davis was unaware of his convicted-
felon status. Burden, 964 F.3d at 348. Accordingly, Davis failed to establish
that the Rehaif errors in the indictment and jury instructions affected his
substantial rights.
The judgments of the district court are AFFIRMED.
6