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UNPUBLISHED OPINION FILED.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]
Date Filed: 05/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
May 3, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
KEITH DESHAWN STEPHENS, also known as Nook,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 05/03/2017
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
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.
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.
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