USA v. Keith Stephen


UNPUBLISHED OPINION FILED. [16-20475 Affirmed] Judge: EGJ, Judge: JES, Judge: JEG. Mandate pull date is 05/24/2017 for Appellant Keith Deshawn Stephens; denying motion placing case in abeyance filed by Appellant Mr. Keith Deshawn Stephens [8413949-3]; granting motion for summary affirmance filed by Appellee USA [8412893-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8412893-3] [16-20475]

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Case: 16-20475 Document: 00513978711 Page: 1 Date Filed: 05/03/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-20475 Summary Calendar United States Court of Appeals Fifth Circuit FILED May 3, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KEITH DESHAWN STEPHENS, also known as Nook, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:15-CR-264-1 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Keith Deshawn Stephens pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), and discharging a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). He was sentenced to 210 months on the robbery charge and 120 months on the firearm charge, for a total of 330 months of imprisonment, as well as five years of supervised release and $76,290 in restitution. Stephens appeals the factual basis for his guilty plea to his § 924(c) 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-20475 Document: 00513978711 Page: 2 Date Filed: 05/03/2017 No. 16-20475 conviction, arguing that federal armed bank robbery under § 2113(a) is not a crime of violence and cannot serve as a predicate offense for the § 924(c) firearm conviction. Specifically, he argues that the residual clause definition of crime of violence in § 924(c)(3)(B) cannot support his conviction because that definition is void for vagueness after Johnson v. United States, 135 S. Ct. 2551 (2015). The Government has filed a motion for summary affirmance, or in the alternative, for an extension of time to file a brief. The Government contends that Stephens’s argument that § 924(c)(3)(B) is void for vagueness based on Johnson is foreclosed by this court’s decision in United States v. GonzalezLongoria, 831 F.3d 670, 672 (5th Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259)). Stephens’s argument is foreclosed by Gonzalez-Longoria, 831 F.3d at 675-77, in which we rejected a Johnson-based challenge to 18 U.S.C. § 16(b), which includes language nearly identical to that of § 924(c)(3)(B). Government’s motion for summary affirmance is granted. The We deny, as unnecessary, its alternative motion for an extension of time for briefing, and we affirm the judgment of the district court. Stephens moves to hold the appeal in abeyance until the Supreme Court decides whether § 16(b) is unconstitutionally vague in Lynch v. Dimaya, 137 S. Ct. 31 (2016) (granting certiorari). The motion is denied. Gonzalez-Longoria is binding precedent unless overruled by this court en banc or by the Supreme Court, and a grant of certiorari does not override this court’s precedent. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). JUDGMENT AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED; MOTION FOR AN EXTENSION OF TIME DENIED, MOTION TO HOLD APPEAL IN ABEYANCE DENIED. 2

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