United States v. Richard Ben

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 6, 2019
• Docket: 18-60378
• Status: Unpublished

Opinion

Case: 18-60378 Document: 00515188383 Page: 1 Date Filed: 11/06/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 18-60378 FILED November 6, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

RICHARD BEN,

Defendant - Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:16-CV-1

Before CLEMENT, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: * Richard Ben pled guilty to violating 18 U.S.C. § 924(c)(1) for using a firearm during a crime of violence. Ben argues his conviction should be vacated because the predicate crime of robbery, 18 U.S.C. § 2111, is no longer “a crime of violence” under § 924(c)(1). In United States v. Brewer, we held that robbery by intimidation under 18 U.S.C. § 2113(a) is “a crime of violence.” 848 F.3d 711, 716 (5th Cir. 2017). The definitions of robbery under both § 2113(a) and §

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 18-60378 Document: 00515188383 Page: 2 Date Filed: 11/06/2019

No. 18-60378 2111 are the same. Ben’s counsel conceded that Brewer controls in this case during oral argument. Ben cannot prevail because Brewer forecloses the argument that robbery under § 2111 is not a predicate “crime of violence.” For the reasons described, we AFFIRM the district court’s judgment.