United States v. Tibbs
| Decision Date | 10 April 2017 |
| Docket Number | No. 15-1060,15-1060 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRISTOPHER LAJUAN TIBBS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
HELENE N. WHITE, Circuit Judge. A jury convicted defendant-appellant Christopher Tibbs of aiding and abetting Hobbs Act robbery and aiding and abetting possession of a firearm in furtherance of a crime of violence. The district court imposed a within-Guidelines sentence totaling 346 months of imprisonment. Tibbs appeals, challenging the district court's application of a career-offender enhancement under the Guidelines, and in a pro se supplemental brief, further argues that Hobbs Act robbery is not a § 924(c) crime of violence, the evidence is insufficient to support his convictions, and that his sentence is unreasonable. We AFFIRM.
This case arises out of the robbery of a Little Caesars restaurant in Redford Township, Michigan, by members or recruits of the Vice Lords, a street gang active across the Midwest.The Government's theory is that Tibbs, known as "K" or "Fatah," was a leader of the gang's Michigan branch, the Mafia Insane Vice Lords; that Tibbs met with four Vice Lords members and prospects—Davone "Gudda" Baker, Clinton "Money" Edwards, Delaino "Jamaica" Eppenger, and Marlin "Ill Will" Smith—to discuss robbing the Little Caesars; that Tibbs gave the four advice, and the next morning, Baker, Edwards, and Smith executed the robbery while Eppenger stood watch nearby; and that the robbers then met with Tibbs to celebrate and get tattoos, and gave him a large portion of the money, which Tibbs used to pay for the group to attend a Vice Lords reunion in Chicago.
A grand-jury indictment charged Tibbs with aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and 1951(a), and aiding and abetting possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c), as well as a street-gang enhancement, 18 U.S.C. § 521. At the four-day jury trial, the Government focused on establishing Tibbs's involvement in the planning of the robbery, relying mainly on the testimony of the other Vice Lords. The Government cast the robbery as a gang initiation orchestrated by Tibbs to finance the gang. The Vice Lords witnesses testified that, among other things, Tibbs told the crew that they would need weapons, face masks, and gloves; that they would need to do something about the cameras; and that they should make sure to leave no evidence.
The jury returned a verdict of guilty on both counts, and additionally found that Tibbs had aided and abetted brandishing (as opposed to simple possession), and that he committed one of the offenses while participating in a street gang. The Presentence Report (PSR) calculated a career-offender-enhanced Guidelines sentencing range of 262 to 327 months of imprisonment for the robbery, and a mandatory-minimum 84-month consecutive sentence for the firearm offense.Tibbs filed a sentencing memorandum that requested a variance but did not object to the calculation of the Guidelines range in the PSR.
At sentencing, the district court adopted the PSR Guidelines range without objection. After denying Tibbs's request for a variance, the district court imposed a sentence of 346 months of imprisonment, consisting of 262 months' imprisonment for the robbery offense (the bottom of the Guidelines range) and 84 months' consecutive imprisonment for the firearm offense (the statutory mandatory minimum).
Tibbs first asserts that the district court erred in sentencing him as a career offender under the Guidelines. The Guidelines provide for an increased sentence if the defendant is a career offender. U.S.S.G. § 4B1.1(a) explains:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Tibbs argues that one of his two prior felony convictions—Michigan armed robbery, Mich. Comp. Laws § 750.529—is not a crime of violence. Additionally, Tibbs, in a supplemental brief, argues that his other prior felony conviction—Michigan delivery/manufacture of a controlled substance of less than 50 grams, Mich. Comp. Laws § 333.7401—is not a proper career-offender predicate because the Michigan statute is overbroad.
At the time of Tibbs's conviction and sentencing, the crime-of-violence Guideline provided:
U.S.S.G. § 4B1.2(a). The commentary to this section, captioned "Application Notes," stated:
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as 'crimes of violence' if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
The definition of crime violence is comprised of three clauses: the force clause, the enumerated-offense clause, and the residual clause. See, e.g., United States v. Rodriguez, 664 F.3d 1032, 1036 (6th Cir. 2011). Physical force means violent force—that is, force capable of causing physical pain or injury to another. Johnson v. United States, 130 S. Ct. 1285, 1270-72, (2010)
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held the residual clause of the Armed Career Criminal Act of 1984 (ACCA) void for vagueness. In United States v. Pawlak, 822 F.3d 902, 904-11 (6th Cir. 2016), we held that Johnson's reasoning invalidated U.S.S.G. § 4B1.2(a)'s identically worded residual clause. The invalidation of the residual clause prompted a new wave of litigation focusing on the force-as-an-element clause of the definition and on the commentary's application notes. Such was the law when Tibbs filed his appeal. However, the Supreme Court recently rejected a vagueness challenge to U.S.S.G. § 4B1.2(a)'s residual clause, concluding that the Guidelines, unlike the ACCA, do not fix the permissible range of sentences and "merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Beckles v. United States, No. 15-8544,2017 WL 855781, at *6 (U.S. Mar. 6, 2017).1 Thus, we analyze Tibbs's claim under the Guideline as it existed at the time of his sentencing, giving effect to the residual clause.
The parties disagree regarding the proper standard of review. Tibbs contends that ordinary, de novo review applies, Rodriguez, 664 F.3d at 1035; the government argues that because Tibbs conceded the issue below and challenges the enhancement for the first time on appeal, our review is for plain error.2 Tibbs responds that plain-error review does not apply because the district court did not adequately follow United States v. Bostic, 371 F.3d 865 (6th Cir. 2004); the government contends that the Bostic question was adequate. We need not further address the standard of review because Tibbs' claim fails even de novo review.
Tibbs contends that Michigan armed robbery is not a crime of violence.3 At the time of his 1994 conviction, Michigan's armed robbery statute provided:
Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years' imprisonment in the state prison.
Mich. Comp. Laws § 750.529 (1994), amended by 2004 Pub. Acts No. 128. This 1994 version of the armed robbery statute has three elements: "(1) an assault, (2) a felonious taking of property from the victim's person or presence, and (3) the defendant must be armed with a weapon described in the statute." People v. Hendricks, 503 N.W.2d 689, 691 (Mich. Ct. App. 1993), aff'd, 521 N.W.2d 546, 553 (Mich. 1994); accord People v. Rodgers, 645 N.W.2d 294, 298 (Mich. Ct. App. 2001); People v. Norris, 600 N.W.2d 658, 660 (Mich. Ct. App. 1999); People v. Carines, 597 N.W.2d 130, 135 (Mich. Ct. App. 1999); People v. Johnson, 547 N.W.2d 65, 71 (Mich. Ct. App. 1996); People v. Allen, 505 N.W.2d 869, 871 (Mich. Ct. App. 1993).
We take a "categorical" approach to determining whether an offense is a crime of violence, "looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor v. United...
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United States v. Johnson
...that "Michigan's controlled-substance statute is divisible")(citing Mich. Comp. Laws § § 333.7401 and United States v. Tibbs, No. 15-060, 685 F. App'x 456 (6th Cir. 2017)). Because Mich. Comp. Laws § 333.7401 is divisible, the modified categorical approach applies. See Descamps v. United St......