United States v. Christopher Brinson

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 23-10674

Non-Argument Calendar

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus CHRISTOPHER BRINSON,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:17-cr-60119-KAM-3

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Before WILLIAM PRYOR, Chief Judge, and NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM:

This is the second occasion that Christopher Brinson has appealed his sentence imposed for conspiring to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), committing two counts of Hobbs Act robbery, id., and brandishing a firearm in furtherance of a crime of violence, id. § 924(c)(1)(A)(ii). In his first appeal, we concluded that the district court erred in sentencing Brinson as a career offender, U.S.S.G. § 4B1.1, and remanded for resentencing without the career -offender enhancement. United States v. Simmons, 847 F. App’x 589, 594 (11th Cir. 2021). Brinson now argues, as he did in his first appeal, that we must vacate his conviction for brandishing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii), because Hobbs Act robbery does not qualify as a crime of violence under section 924(c). The United States moves for summary affirmance. Because “the position of [the United States] . . . is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), we affirm.

We review whether an offense is a crime of violence under 18 U.S.C. § 924(c) de novo. United States v. Wiley, 78 F.4th 1355, 1360 (11th Cir. 2023).

Section 924(c) prohibits using or carrying a firearm during a crime of violence. 18 U.S.C. § 924(c)(1)(A). A crime of violence is

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any felony that has as an element “the use, attempted use, or threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A). Hobbs Act robbery is a crime of violence under the elements clause of section 924(c). In re Fleur, 824 F.3d 1337, 1339–40 (11th Cir. 2016).

Summary affirmance is appropriate. See Groendyke Transp., 406 F.2d at 1162. Brinson correctly “acknowledges that [our] binding precedent precludes [his]” argument that Hobbs Act robbery does not qualify as a crime of violence under section 924(c)(3)(A). See United States v. St. Hubert, 909 F.3d 335, 348–50 (11th Cir. 2018) (reaffirming our holding in In re Fleur that Hobbs Act robbery qualifies as a crime of violence under the elements clause of section 924(c)), abrogated on other grounds by United States v. Taylor, 596 U.S. 845, 851–52 (2022) (holding that attempted Hobbs Act robbery is not a crime of violence under the elements clause of section 924(c)); In re Fleur, 824 F.3d at 1339–40. He suggests that two intervening Supreme Court decisions, Stokeling v. United States, 586 U.S. 73 (2019), and United States v. Taylor, 142 S. Ct. 2015 (2022), have undermined our precedent.

We disagree. Stokeling resolved whether Florida robbery qualifies as a violent felony under the elements clause of the Armed Career Criminal Act and did not involve Hobbs Act robbery or section 924(c). See 586 U.S. at 87. So Stokeling did not undermine our holding in In re Fleur or St. Hubert to the point of abrogation. See United States v. Dudley, 5 F.4th 1249, 1265 (11th Cir. 2021) (“[A] prior panel’s holding is binding on all subsequent panels unless and until

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it is overruled or undermined to the point of abrogation by the Supreme Court or this court sitting en banc.”). Nor did Taylor abrogate our holding in In re Fleur. See Wiley, 78 F.4th at 1364–65 (explaining that “Taylor did not disturb our holding that completed Hobbs Act robbery is a crime of violence” under section 924(c)(3)(A) because the “analysis in Taylor was limited to attempted Hobbs Act robbery ”). Because In re Fleur remains binding precedent, the district court did not err in using Hobbs Act robbery as the predicate offense for Brinson’s section 924(c) conviction. See id.; Dudley, 5 F.4th at 1265; In re Fleur, 824 F.3d at 1339–40.

Because there is no substantial question as to the outcome of the case, we GRANT the motion for summary affirmance, DENY AS MOOT Brinson’s motion to file a supplemental brief, and GRANT his motion to accept his amended response. See Groendyke Transp., 406 F.2d at 1162.

AFFIRMED.