USA v. Clarence Buck, et al

Filing

PUBLISHED OPINION FILED. [15-20697 Affirmed] Judge: JLW, Judge: EBC, Judge: SAH. Mandate pull date is 02/22/2017 for Appellants Kendal Allen and Clarence Bernard Buck [15-20697]

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

No. 15-20697

FILED
February 1, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
CLARENCE BERNARD BUCK, also known as BB; KENDAL ALLEN,
Defendants - Appellants

Appeals from the United States District Court
for the Southern District of Texas
Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants Clarence Bernard Buck and Kendall Allen
(collectively “defendants”) were charged with various crimes, including robbery
in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They proceeded to jury trial,
but three days into it the district court granted their motions for a mistrial. At
the conclusion of the second jury trial, Buck and Allen were convicted on all
counts. Buck was sentenced to 1,846 months of imprisonment, and Allen was
sentenced to 1,435 months. They now appeal, contending that the retrial of
their case violated their constitutional rights and that the classification of
Hobbs Act robbery as a crime of violence was error. In addition, Buck asserts
that the Hobbs Act robbery jury instruction was flawed, the abduction

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enhancement to his sentence was error, and his restitution obligation should
be shared with others; and Allen appeals his 119-year sentence as a violation
of the Eighth Amendment and the introduction of his statements to a
government witness as reversible error. We affirm.
I.
FACTS AND PROCEEDINGS
A.

Facts
Buck and Allen, along with other individuals, were accused of

participated in armed robberies of various T-Mobile stores and a flea market
jewelry store in the Houston area between November 2012 and July 2013. The
robberies followed similar patterns, including forcing store employees from the
front of the store to the back, where cellular phones were stored. All of the
robberies in question included defendants or their co-conspirators brandishing
firearms during the commission of those crimes.
B.

Procedure
In March 2015, defendants entered pleas of not guilty and proceeded to

trial by jury. Three days into the trial, it came to light that the government
had not turned over all of the required discovery materials, including witness
statements, a police interview with Buck, and two police lineups. The district
court held a hearing in which it admonished the government for its failure to
turn over such materials. The court then granted defendants’ motions for
mistrial, but it denied their motions for dismissal of the case with prejudice.
A second jury trial took place some five months later, in August 2015.
Between the first and second trials, defendants again filed motions to dismiss
the case with prejudice, which the court denied in a summary order. The jury
convicted Buck and Allen of conspiracy to interfere with commerce by robbery,
in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Buck was also convicted of
(1) seven counts of committing, or aiding and abetting, Hobbs Act robbery, (2)
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seven counts of using and carrying, or aiding and abetting the use of and
carrying of a firearm during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A), and (3) being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Allen was convicted of six counts of Hobbs
Act robbery and six counts of using and carrying a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).
The district court sentenced Buck to concurrent sentences of 240 months
of imprisonment on the robbery counts; a consecutive 22-month term on the
charge of being a felon in possession of a firearm; a mandatory consecutive 84month term of imprisonment on one firearm count; and five additional
consecutive terms of 300 months of imprisonment on the remaining firearm
counts, for a total of 1,846 months of imprisonment. The court sentenced Allen
to 151 months for the robberies; a mandatory consecutive term of 84 months;
and four additional consecutive terms of 300 months of imprisonment on the
firearms counts for a total of 1,435 months of imprisonment. Both defendants
appeal their convictions and sentences.
II.
THE SECOND TRIAL
Defendants challenge the second jury trial for different reasons. Allen
insists that the second trial amounts to double jeopardy and that his
constitutional rights under Brady v. Maryland 1 were violated. Buck asserts

1

373 U.S. 83 (1963).

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that the district court should have sanctioned the government for discovery
violations by dismissing the case against him with prejudice.
A.

Standard of Review
The Fifth Amendment protects individuals from “repeated prosecutions

for the same offense.” 2 We review challenges to the prohibition against double
jeopardy de novo. 3 We review sanctions imposed by the district court for
discovery-related violations for abuse of discretion. 4 We only reverse the trial
court’s factual findings related to double jeopardy challenges and discoveryrelated violations if they are clearly erroneous. 5
B.

Analysis
The government may not use a jury as a focus group; neither may it use

a jury trial as a discovery tool. 6 When a trial is terminated over defense
objection, retrial is prohibited absent “manifest necessity.” 7 Retrial of a case
following a motion for mistrial by the defense is allowed, however, unless
government conduct that was “intended to ‘goad’ the [defense] into moving for
a mistrial” prompted the defense’s motion. 8
In this case, it was not until the third day of the initial trial that it came
to light that the government had failed to turn over some discovery materials,
including various interviews with witnesses – including Buck – and records of
police line-ups. When that matter was brought to the attention of the district
court, it held a hearing and granted defendants’ motion for mistrial, but denied
defendants’ motions for dismissal of the case with prejudice.

United States v. Dinitz, 424 U.S. 600, 606 (1976).
United States v. Dugue, 690 F.3d 636, 637-38 (5th Cir. 2012).
4 United States v. Dvorin, 817 F.3d 438, 453 (5th Cir. 2016).
5 See Dugue, 690 F.3d at 637-38.
6 See United States v. DiFrancesco, 449 U.S. 117, 128 (1980).
7 Martinez v. Caldwell, 644 F.3d 238, 243 (5th Cir. 2011).
8 Oregon v. Kennedy, 456 U.S. 667, 676 (1982).
2
3

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1. Allen’s Claim of Double Jeopardy
Allen contends that the government “goaded” him into seeking a mistrial
because the trial was “not going well” for the government and defense counsel
had pointed out weaknesses in the government’s case. “Goading” is narrowly
defined, and “[g]ross negligence by the prosecutor, or even intentional conduct
that seriously prejudices the defense, is insufficient” to be characterized as
“goading.” 9 “Instead, there must be ‘intent on the part of the prosecutor to
subvert the protections afforded by the Double Jeopardy Clause.’” 10
The government counters that it had no prior knowledge of the missing
items of discovery. It says that it asked the state agencies that initially
investigated defendants’ crimes if they had turned over “everything” in their
possession, to which the state agencies responded affirmatively. The
government also relies on its open-file discovery policy and on the fact that it
continued to produce materials promptly as it received them.
It is true that in the first trial, the government heard defendants’
opening statements and their cross-examination of government witnesses, and
had the opportunity to gauge jury reactions to their own witnesses. Regardless,
the “objective facts and circumstances” in this case do not suggest that the
prosecutors engaged in “conduct . . . intended to provoke the defendant[s] into
moving for a mistrial.” 11 We are satisfied that the government did not goad
Allen into seeking a mistrial and that his double jeopardy rights thus were not
violated.

United States v. El-Mezain, 664 F.3d 467, 561 (5th Cir. 2011).
Id. (quoting United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003)).
11 Kennedy, 456 U.S. at 675, 679.
9

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2. Allen’s Brady Claim
Allen also urges that the government failed to meet its constitutional
obligations imposed by Brady. 12 Under Brady, “the individual prosecutor has
a duty to learn of any favorable evidence known to the others acting on the
government’s behalf in this case, including the police.” 13 A Brady violation
requires that the evidence withheld by the government be either exculpatory
or impeaching, and that prejudice ensued. 14 Allen has not identified any
exculpatory or impeaching evidence that was withheld by the prosecution. The
retrial of the criminal case against Allen did not violate his constitutional
rights under Brady and its progeny.
3. Buck’s Claims
Buck acknowledges that his being retried is not barred by the double
jeopardy clause. Instead, Buck contends that, given the concerns underlying
double jeopardy and the rules of procedure, 15 the district court erred by
allowing the retrial. We have held that, with regard to the imposition of
sanctions for discovery violations, district courts should consider: “1) the
reasons why disclosure was not made; 2) the amount of prejudice to the
opposing party; 3) the feasibility of curing such prejudice with a continuance
of the trial; and 4) any other relevant circumstances.” 16
As to the first factor, the government again asserts that the failure to
disclose the evidence in question was not intentional. Generally, a district
court will not impose severe sanctions in the absence of bad faith. 17 As

373 U.S. 83.
Strickler v. Greene, 527 U.S. 263, 281 (1999) (quoting Kyles v. Whitley, 514 U.S. 419,
433-34 (1995)).
14 Id. at 281-82.
15 The procedural rules that Buck appears to be relying on are Brady and Rule 16 of
the Federal Rules of Criminal Procedure.
16 United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000).
17 Dvorin, 817 F.3d at 453.
12
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discussed above, nothing in the record suggests that the government’s failure
to disclose evidence was intentional. Thus, this factor weighs against dismissal
with prejudice as a sanction.
As to the second factor, Buck – like Allen – argues that by hearing his
opening statement and his defense theory in the first trial, the government
was given a significant advantage. However, there is no evidence that
defendants were prejudiced by the first trial. Thus, this factor is neutral.
The third factor weighs against dismissal with prejudice as a sanction
because Buck had almost five months to prepare a new strategy based on the
new discovery.
As to the fourth factor, Buck does not address other relevant
circumstances, but relies exclusively on policy arguments that his case should
be dismissed with prejudice as a sanction for the government’s discovery
violations. Even if we were persuaded that such policy arguments weigh in
favor of dismissal, the district court did not abuse its discretion in refusing to
dismiss the case based on the government’s discovery violations.
III.
HOBBS ACT ROBBERY AS A CRIME OF VIOLENCE
Defendants insist that their Hobbs Act robbery convictions do not qualify
as crimes of violence under 18 U.S.C. § 924(c)(3)(A) and that they cannot

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qualify under § 924(c)(3)(B) because the clause is vague and crediting it would
violate due process.
A.

Standard of Review
Because this challenge is asserted for the first time on appeal, we review

it for plain error. 18
B.

Analysis
Section 924(c) punishes “any person who, during and in relation to any

crime of violence uses or carries a firearm. . . .” 19 When the firearm is
brandished during and in relation to any crime of violence the statutory
minimum becomes seven years’ imprisonment. 20
Section 924(c) contains two definitions of a crime of violence. Under §
924(c)(3)(A), a crime of violence is a felony that “has an element the use,
attempted use, or threatened use of physical force against the person or
property of another.” 21 Under § 924(c)(3)(B), which is referred to as the
“residual clause,” a crime of violence is a felony 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.” 22
Whether a particular offense is a crime of violence is a question of law
for the court to resolve. 23 The Supreme Court applies a categorical approach,
looking only to the statutory definitions – i.e., the elements – of a defendant’s
offense, and not to the particular facts underlying the convictions. 24 The Hobbs
Act defines robbery, in pertinent part, as “the unlawful taking or obtaining of

United States v. Williams, 343 F.3d 423, 431 (5th Cir. 2003).
18 U.S.C. § 924(c)(1)(A).
20 18 U.S.C. § 924(c)(1)(A)(ii).
21 18 U.S.C. § 924(c)(3)(A).
22 18 U.S.C. § 924(c)(3)(B).
23 United States v. Credit, 95 F.3d 362, 364 (5th Cir. 1996).
24 Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).
18
19

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personal property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property.” 25 Allen argues 26 that because
an individual could be convicted under the Hobbs Act for nothing more than
threatening some future injury to the property of a person who is not present,
this cannot be a crime of violence under the statute. 27
In United States v. Hill, the Second Circuit concluded that the Hobbs
Act’s reference to actual or threatened force or violence “would appear, selfevidently, to satisfy” the standard needed for a crime of violence under
§ 924(c)(3)(A). 28 In addition, the Third, Eighth, and Eleventh Circuits have
held that the Hobbs Act definition of robbery describes a crime of violence
under § 924(c)(3)(A), and the Ninth Circuit has reached the same conclusion in
an unpublished opinion. 29 It was not error – plain or otherwise – for the district
court to classify a Hobbs Act robbery as a crime of violence.

18 U.S.C. § 1951(b)(1).
Buck’s challenge to § 924(c) appears to rely only on his claim that § 924(c)(3)(B) is
unconstitutional. As discussed below, we need not address § 924(c)(3)(B) to hold that the
district court did not err in classifying the Hobbs Act robbery as a crime of violence.
27 Allen argues that because his alleged criminal conduct could be defined as
“obtaining of personal property . . . in the presence of another, against his will by means of .
. . fear of injury, immediate or future, to . . . the . . . property of a . . . member of his family,”
his conviction cannot be a crime of violence because it does not require the kind of violent
force needed for a crime of violence under this clause of § 924. Allen cites Johnson v. United
States, for the proposition that the Supreme Court interprets “physical force” to mean “violent
force – that is, force capable of causing physical pain or injury to another person.” 559 U.S.
133, 140 (2010).
28 832 F.3d 135, 140 (2d Cir. 2016).
29 United States v. Robinson, 844 F.3d 137, 140-41 (3d Cir. 2016); In re Fleur, 824 F.3d
1337, 1341 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); United
States v. Howard, 650 F.. App’x 466, 468 (9th Cir. 2016).
25
26

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IV.
HOBBS ACT ROBBERY JURY INSTRUCTION
Buck also objects to the district court’s use of the Fifth Circuit pattern
jury instruction 30 on the Hobbs Act to the extent that it does not require the
jury to find that he had a culpable mental state regarding the effect of his
conduct on interstate commerce.
A.

Standard of Review
We review the use of a particular jury instruction for abuse of

discretion. 31 We ask “whether the instruction, taken as a whole, is a correct
statement of law and whether it clearly instructs jurors as to the principle of
the law applicable to the factual issues confronting them.” 32
B.

Analysis
The Hobbs Act imposes criminal penalties on, “[w]hoever in any way or

degree obstructs, delays, or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or attempts or conspires so to

30

The Fifth Circuit pattern jury instruction for Hobbs Act robbery, which was given
at the second trial, states in relevant part:
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 obtained [attempted to obtain][conspired to obtain]
property from another with that person's consent;
Second: That the defendant did so by wrongful use of actual or threatened
force, violence, or fear; and
Third: That the defendant's conduct in any way or degree obstructed
[delayed][affected] commerce [the movement of any article or commodity in
commerce].
The government is not required to prove that the defendant knew that his conduct
would obstruct [delay][affect] commerce [the movement of any article or commodity in
commerce]. It is not necessary for the government to show that the defendant actually
intended or anticipated an effect on commerce by his actions. All that is necessary is
that the natural and probable consequence of the acts the defendant took would be to
affect commerce. If you decide that there would be any effect at all on commerce, then
that is enough to satisfy this element. Fifth Cir. Pattern Jury Instr. 2.73A (2015).
31 United States v. Anderson, 560 F.3d 275, 279 (5th Cir. 2009).
32 Id. (internal quotation marks omitted).

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do . . . .” 33 This language “is unmistakably broad . . . reach[ing] any obstruction,
delay, or other effect on commerce, even if small, and the Act’s definition of
commerce encompasses ‘all . . . commerce over which the United States has
jurisdiction.’” 34
Buck submitted proposed jury instructions, which included the
requirement that the government prove the “defendant knew that his conduct,
or the conduct of another which he aided or abetted, would or could materially
obstruct, delay, or affect commerce.” He requested that the final paragraph of
the portion of the pattern jury instruction, which states that the government
is not required to prove intent, knowledge, or anticipation of an affect on
commerce, not be submitted to the jury. The district court denied Buck’s
request and used the entire Hobbs Act pattern jury instruction to instruct the
jury.
We have held that the Hobbs Act “does not require that the defendant
have specifically intended to affect interstate commerce,” or that he acted with
knowledge interstate commerce would be affected. 35 Courts have routinely
held that a criminal defendant need not know of a federal crime’s connection
to interstate commerce to be found guilty. 36 Thus, the use of the Fifth Circuit
pattern jury instruction for Hobbs Act robbery was not an abuse of discretion
by the district court.

18 U.S.C. § 1951(a).
Taylor v. United States, 136 S. Ct. 2074, 2079 (2016) (quoting 18 U.S.C. § 1951(b)(3)).
35 United States v. Hebert, 131 F.3d 514, 523 (5th Cir. 1997).
36 See, e.g. id.; United States v. Jinian, 725 F.3d 954, 964-66 (9th Cir. 2013); United
States v. Lindemann, 85 F.3d 1232, 1241 (7th Cir. 1996); United States v. Blackmon, 839 F.2d
900, 907 (2d Cir. 1988).
33
34

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V.
THE ABDUCTION ENHANCEMENT
Buck objects to an enhancement of his sentence based on abduction.
A.

Standard of Review
We review the district court’s interpretation of the Sentencing

Guidelines de novo. 37 We review the district court’s factual findings for clear
error. 38
B.

Analysis

The district court applied a four-level enhancement for abduction to
Buck’s base offense level, pursuant to Sentencing Guideline § 2B3.1(b)(4)(A).
That provision allows enhancement “[i]f any person was abducted to facilitate
commission of the offense or to facilitate escape . . . .” 39 “Abducted” is defined
as “a victim was forced to accompany an offender to a different location.” 40 Buck
objects to this enhancement, claiming that the facts at issue in this case are
distinguishable from case law that supports the “abduction” enhancement and
that the term “location” in the Sentencing Guidelines is ambiguous.
Buck notes that the presentence report did not specifically address the
conduct that led to the abduction enhancement. He assumes that it refers to
the movement of victim employees from the front to the back of the T-Mobile
stores during the robberies of those stores.
We have repeatedly construed the “abduction” enhancement as
applicable when a victim is forced from one part of a building to another. 41 We

United States v. Smith, 822 F.3d 755, 762 (5th Cir. 2016).
Id.
39 U.S. SENTENCING GUIDELINES MANUAL § 2B3.1(b)(4)(A) (U.S. SENTENCING COMM’N
37
38

2015).

U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 cmt. 1(A) (U.S. SENTENCING
COMM’N 2015).
41 See Smith, 822 F.3d at 763-64 (forcing victims to move from one area of a bank to
another to aid in stealing money was “abduction” for the purposes of the Guidelines); United
40

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have also indicated that the term “different location” should be interpreted
with flexibility. 42 We are satisfied that the conspirators forcing T-Mobile
employees to move from the front of the stores to the backs was sufficient to
make the abduction enhancement applicable. 43
VI.
THE RESTITUTION AWARD
Buck claims that his restitution obligation should be allocated to other
parties, including cooperating witnesses Deandre White and Trent Davis, and
to Rafey Khan and Zeeshan Yasin, two individuals who profited by purchasing
the stolen items.
A.

Standard of Review
We review whether a restitution award is “permitted by the appropriate

law” de novo. 44 We review “the propriety of a particular award for an abuse of
discretion.” 45
B.

Analysis
The district court ordered Buck to pay $789,271.74 in restitution to the

robbery victims. That court’s judgment specified that Buck’s obligation was
“joint and several with any co-defendant who has been or will be ordered to pay
restitution.” Co-defendant Allen was also held responsible for the full amount
of restitution, and co-defendant Donald Holmes was held responsible for a
portion of the restitution. However, White, Davis, Khan, and Yasin, were not

States v. Hawkins, 87 F.3d 722, 727-28 (5th Cir. 1996) (finding that forcing victims to move
50 to 60 feet in the same parking area was “abduction” for the purposes of the Guidelines).
42 United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010).
43 Buck also contends that the term “location” and its use in the Sentencing Guidelines
is ambiguous. He asserts that the rule of lenity should be applied and his sentence vacated.
However, as used in the Guidelines, this term does not have the kind of “grievous ambiguity”
that implicates the rule of lenity. See Muscarello v. United States, 524 U.S. 125, 139 (1998).
Buck’s argument that the term “location” is ambiguous must fail.
44 United States v. Sheets, 814 F.3d 256, 259 (5th Cir. 2016).
45 Id.

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convicted of the robberies that gave rise to this restitution. White was an
unindicted co-conspirator. Davis, Khan, and Yasin were named in the original
indictment as Hobbs Act co-conspirators, but they ultimately entered pleas of
guilty to different offenses. T-Mobile and the jewelry store were “directly and
proximately harmed as a result of the commission” of the Hobbs Act robberies,
not the crimes for which those witnesses were convicted. 46 The district court
thus lacked the authority to make those parties jointly and severally liable for
the restitution obligation. 47 The district court did not abuse its discretion in
not holding White, Davis, Khan, or Yasin, jointly and severally liable for the
restitution award in this case, so Buck’s objection fails.
VII.
ALLEN’S SENTENCE AND THE EIGHTH AMENDMENT
Allen argues that his 119-year sentence violates the Eighth Amendment
because it is effectively a life sentence which is reserved for only the most
“existential” crimes. He also insists that his sentences should run concurrently.
A.

Standard of Review
The Eighth Amendment prohibits cruel and unusual punishment. 48 We

review an Eighth Amendment challenge to the constitutionality of a sentence
de novo. 49
B.

Analysis
To reach Allen’s 119-year sentence, the district court imposed terms of

151 months for each of his six robbery convictions under the Hobbs Act, then

Sheets, 814 F.3d at 258 n.3. White was convicted of the unrelated offense of
conspiring to possess with intent to distribute more than five kilograms of cocaine. Davis was
convicted of an unrelated robbery. Khan and Yasin were convicted of misprision of a felony,
in violation of 18 U.S.C. § 4, for failing to report the T-Mobile robberies.
47 See 18 U.S.C. §§ 3663A(a)(2); 3664(f)(1)(A).
48 U.S. CONST. amend VIII.
49 United States v. King, 773 F.3d 48, 52 (5th Cir. 2014).
46

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added a series of consecutive terms for the use of firearms during the robberies,
as required by 18 U.S.C. § 924(c)(1). Section 924(c) mandates a minimum
sentence of seven years of imprisonment when a defendant brandishes a
firearm during and in relation to a crime of violence. 50 Section 924(c)(1)(D)(ii)
requires that those seven years run consecutively to the prison term for the
underlying crime of violence. 51 Section 924(c)(1)(C)(i) imposes additional
consecutive terms of 25 years for every “second or subsequent conviction
under” the statute. 52 This includes instances when the first and subsequent
convictions occur in a “single proceeding.” 53 Allen’s sentence is thus within the
statutory guidelines applicable to his case.
A sentence imposed within statutory limits may nevertheless violate the
Eighth Amendment if it “is so disproportionate to the crime committed that it
shocks human sensibilities.” 54 We conclude that this sentence does not shock
human sensibilities and is consistent with other decisions in this court. 55 The
length of Allen’s sentence is not unconstitutional.
VIII.
ALLEN’S STATEMENTS TO GOVERNMENT WITNESSES
Finally, Allen urges that admission of the statements he made while he
was in jail with a government witness, Son-Tanna Hewitt, deprived him of a
fair trial.

18 U.S.C. § 924(c)(1)(A)(ii).
18 U.S.C. § 924(c)(1)(D)(ii).
52 18 U.S.C. § 924(c)(1)(C)(i).
53 See Deal v. United States, 508 U.S. 129, 131 (1993).
54 Yeager v. Estelle, 489 F.2d 276, 276-77 (5th Cir. 1973).
55 In United States v. Thomas, the defendant was convicted of five robberies, each with
a firearm, and was sentenced to 1,435 months’ imprisonment. 627 F.3d 146, 159-60 (5th Cir.
2010). We held that the “sentence was not grossly disproportionate to the offenses he
committed.” Id. at 160.
50
51

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A. Standard of Review
We review preserved challenges to the admission of evidence for abuse
of discretion. 56
B.

Analysis
Hewitt was not involved in the November robberies; he was only involved

in the July robbery, to which Allen asserts he had no connection. 57 Allen alleges
that three months after Hewitt entered into a deal with the government he
was placed in the same segregation unit as Allen. Hewitt was called by the
government and testified as to Allen’s jailhouse admissions to having
committed each element of the crimes.
Allen argues that the use of Hewitt’s jailhouse testimony is essentially
an ambush by the prosecution because “confessions” are exempt from
disclosure under Rule 16. Allen insists that, but for Hewitt’s testimony, he
would have been acquitted because the only other evidence against him was “a
murky video and three highly discreditable witnesses.”
The Supreme Court has repeatedly held that introduction of a
defendant’s statement to a cellmate does not violate the Sixth Amendment
right to counsel. 58 Jailhouse snitches are not inherently unreliable. 59
Defendants are entitled to confront and cross-examine such witnesses to
discredit them, and Allen was afforded that right. 60 In addition, the district
court instructed this jury that testimony of cooperating accomplice witnesses

See United States v. Hefferon, 314 F.3d 211, 222 (5th Cir. 2002). Allen objected to
the testimony in question in a pretrial motion and renewed his motion at trial.
57 Five of the robberies that form the basis of this case occurred in November 2012.
One occurred in July 2013.
58 Kansas v. Ventris, 556 U.S. 586, 591-92 (2009).
59 Id. at 594 n.*.
60 See Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012).
56

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Case: 15-20697

Document: 00513859232

Page: 17

Date Filed: 02/01/2017

No. 15-20697
“is always to be received with caution and weighed with great care.” The
district court did not abuse its discretion in allowing Hewitt to testify.
IX.
CONCLUSION
For the foregoing reasons, we AFFIRM all convictions of Buck and Allen
as well as the sentences imposed by the district court.

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