RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0050p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

E RIC G OOCH , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 15-4360

Appeal from the United St ates District Court for the Northern District of Ohio at Cleveland. No. 1:13-cr-00282—Solomon Oliver, Jr., Chief District Judge. Argued: January 27, 2017 Decided and Filed: March 2, 2017 Before: GUY, CLAY, and GRIFFIN, Circuit Judges.

_________________ COUNSEL ARGUED: Kenneth P. Tableman, KENNETH P. TA BLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Daniel R. Ranke, UNITED ST ATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ RALPH B. GUY, JR., Circuit Judge. De fendant Eric Gooch appeals his jury convictions and sentences for conspiracy to obstruct commerce by means of robbery, 

### >No. 15-4360 United States v. Gooch Page 2

obstructing commerce by means of robbery, ar med bank robbery, and carrying a firearm during the commission of a crime of violence. We affirm.

I. Defendant helped plan armed robberies of a discount store and two banks. During the discount store robbery, defendant accomp anied two others to the business in a getaway car. Defendant planne d to enter, but changed his mind. Defendant witnessed Shawn Caldwell give a firearm to codefendant Larnell Tripp, who ro bbed the cashier and the business’s safe at gunpoi nt. A month later, defendant, Caldwell, and Greg Williams robbed a bank. Caldwell rema ined in the car while defenda nt and Williams brandished firearms and robbed the bank’s vault. Three weeks later, defendant accompanied Caldwell and Williams to another bank, but remained outside the bank entrance. Williams robbed the bank at gunpoint, placing the firear m against the bank manager’s head and pistol-whipping a security guard. Defendant neither admitted nor denied knowing prior to the robbery th at Williams would use a firearm. The prosecution charged defendant in a se ven-count indictment consisting of two counts of conspiracy to obstruct commerc e by means of robbery, a.k.a. “Hobbs Act robbery” (18 U.S.C. §§ 1951 (a), 1951(b)(1), and 2); three counts of using, carrying and brandishing a firearm during and in relation to a crime of violence (18 U.S.C. §§ 924(c)(1)(A) and 2); and tw o counts of armed bank robb ery (18 U.S.C. §§ 2113(a), 2113(d), and 2). 1 Although the district court initially adjudged defendant incompetent to stand trial, he later passed mu ltiple competency evaluations.

Defendant filed and su bsequently withdrew notice of hi s intent to present evidence that he was not guilty by reason of insanity. Defendant also sought to represent himself. The district court engaged defendant in an extended self-repres entation colloquy and

1 The prosecution indicted defendant alongside codefendants Larnell Tripp, Jr., and Ashley White. Other participants in the robberies at issue – Shawn Caldwell a nd Greg Williams, Jr. – pleaded guilty to their involvement and separately appealed their sentences. Defenda nt Gooch is the sole party to this appeal.No. 15-4360 United States v. Gooch Page 3

allowed him to self-representwith appointed counsel as standby. Defendant crossexamined some witnesses but di d not present an affirmative defense. He instead moved for a judgment of acquittal based on insufficient eviden ce, which the district court denied. The jury found defend ant guilty, and the district cour t sentenced him to 664 months’ incarceration. On appeal, defendant challenge s the sufficiency of the evidence that he aided and abetted the discount store robbery and seco nd bank robbery, alleges the district court erred in allowing him to sel f-represent and in sentencing him to consecutive sentences on his § 924(c) convictions, and argues that Hobbs Act robbery is not a crime of violence.

II.

a. Sufficiency of the Evidence We review the sufficiency of the evidence for a conv iction “in the light most favorable to the prosecution” to determine whether “ any rational trier of fact could have found the essential elem ents of the crime beyo nd a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (197 9). Circumstantial evidence alone may sustain a conviction. United States v. Tarwater , 308 F.3d 494, 504 (6th Cir. 2002). Aiding and abetting in the carrying of a firearm during commission of a crime of violence requires that the defendant “associ ate himself with the venture, that he participates in it as something he wishes to bring about, and that he seek by his action to make it succeed.” United States v. Lowery , 60 F.3d 1199, 1202 (6th Cir. 1995) (quoting United States v. Lawson , 872 F.2d 179, 181 (6 th Cir. 1983)). The pr osecution must show that defendant had advance knowledge that a fi rearm would be used in the course of the crime. Rosemond v. United States , 134 S. Ct. 1240, 1249 (2014). The intent requirement of aiding and abetting “preserves the distincti on between assisting the predicate . . . crime and assisting the broader § 924(c) offense.” Id . at 1248.No. 15-4360 United States v. Gooch Page 4

i. Discount Store Robbery Defendant argues that he was merely pres ent during Tripp’s armed robbery of the discount store and therefore not gu ilty as an aider and abettor. See United States v. Winston , 687 F.2d 832, 835 (6th Cir. 1982). The record undermines his claim. Defendant admitted, and his c odefendants corroborated, that he helped plan the robbery and witnessed Caldwell give Tripp a firearm. Active participation in the planning phase of an armed robbery constitutes inte nt to bring about the offense. See Phifer v. United States , 221 F.3d 1335, 2000 WL 924451, at *2 (6th Cir. 2000) (unpublished table decision) (affirming conviction for aiding and abetting armed robb ery where defendant knew of principal’s intent to rob victim at gunpoint). The prosecution thus put forth sufficient evidence that defendant aided and abetted the armed robbery of the discount store.

ii. Second Bank Robbery No testimony or other record evidence es tablished – or rebutted – that defendant knew Williams possessed a fi rearm during the second bank robbery. The prosecution relies on defendant’s participa tion in the previous two armed robberies and knowledge that firearms figured in both crimes to argue that defendant had advance knowledge Williams would use a firearm in the last bank robbery. We have reversed § 924(c) convictions wher e jury instructions were insufficiently clear as to the defendant’s inte nt to aid an armed offense. United States v. Henry , 797 F.3d 371, 374-77 (6th Cir. 2005 ) (applying plain error revi ew to unpreserved jury instruction issue). Henry established that the intent in struction must go to the entire crime – the predicate offense and the violence component under § 924(c) – such that the jury convicts the defendant of armed bank robbery. Id . at 374. Here, the jury instructions amply apprised the jurors that they must find defendant “knew in advance that his confederate would brandish, carry, or use a firearm during theNo. 15-4360 United States v. Gooch Page 5

robbery.” We presume that jurors follow the district court’s instructions. United States v. Lester , 238 F. App’x 80, 83 (6th Cir. 2007) (collecting cases). Defendant’s participation in the two prior armed robberies with most of the same codefendants is strong circumstantial evidence that he was aware of the group’s modus operandi of using firearms in the commission of robberies. Vi ewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find that defendant had advance knowledge Williams would use a firearm duri ng the final bank robbery. Sufficient evidence therefore supported defendant ’s aiding-and-abetting convictions.

b. Right to Counsel

Where a defendant asserts a violation of the right to counsel, we review the district court’s factual findings for clear error and its legal conclusions de novo

. United States v. Cromer , 389 F.3d 662, 679 (6th Cir. 2004). We ha ve recognized that a district court’s decision that a mentally compromised defenda nt may self-represent “merits deference.” United States v. Stafford , 782 F.3d 786, 791 (6th Cir. 2015).

Defendant claims the distri ct court deprived him of his right to counsel by allowing him to self-represent when he was incapable of gi ving a knowing and intelligent waiver. See Faretta v. California , 422 U.S. 806, 835 (1975). In this circuit, district courts must conduct a colloquy akin to that in section 1.02 of the Bench Book for United States District Judges

. See United States v. McBride , 362 F.3d 360, 366 (6th Cir. 2004); see also United States v. McDowell , 814 F.2d 245, 249-50 (6th Cir. 1987).

The district court’s discussion with defend ant coincided nearly verbatim with the colloquy provided in the Bench Book . The district court al so thoroughly admonished defendant that a trained lawyer could better represent him and that it was unwise to selfrepresent. Defendant neverthe less chose to represent himself with counsel as standby. Whether he chose wisely is not the issue on appeal. See Godinez v. Moran , 509 U.S. 389, 400 (1993); see also United States v. Dubrule , 822 F.3d 866, 880 (6th Cir. 2016)No. 15-4360 United States v. Gooch Page 6

(“[G]iven the frequency with which pro se defendants . . . espouse strange [legal] theories, we decline to hold that the district court abused its discretion by failing to order a competency hearing on the basis of strange statements contained in a few . . . pre-trial motions.”). Defendant asserts he was mentally incompetent to waive his right to representation. Because he ha s not appealed the district co urt’s competency ruling, it is not before us. Nevertheless, the record show s that the district court gave, and defendant seized, abundant opportunities to raise the issue of his comp etency. Although an initial evaluation found defendant inco mpetent to stand trial, each of the multiple subsequent evaluations and hearings found that he was competent de spite certain “malingering” behaviors. With the assistance of standb y counsel, defendant moved for a competency evaluation soon after asserting his right to se lf-represent. The district court again found him competent. The competency standa rd for standing trial is identic al to the standard for selfrepresentation. Godinez , 509 U.S. at 396-97. It is immaterial that the district court did not review defendant’s competency with a sp ecific eye toward self-representation: it adjudged him mentally competent, and found th at his waiver of the right to counsel was knowing and intelligent. The district court di d not deny defendant the right to counsel by allowing him to self-represent.

c. Consecutive Sentencing Defendant challenges the district c ourt’s imposition of consecutive 25-year sentences for his multiple § 924 (c) convictions. He raises this argument solely to preserve it for appeal to the Supreme Court of the United States. Defendant contends that the Supreme Court wrongly decided Deal v. United States , 508 U.S. 129 (1987). There, the Court held that when a defendant is convi cted of multiple § 924(c) offenses in the same case, each conviction is a second or subsequent convic tion for purposes of § 924(c),No. 15-4360 United States v. Gooch Page 7

allowing multiple cons ecutive sentences. Deal is still good law, and we are bound by the decision unless and until the S upreme Court overrules it. See Hohn v. United States , 524 U.S. 236, 252-53 (1998).

d. Crime of Violence

Defendant contends that a Hobbs Act c onviction does not qualify as a crime of violence under § 924(c)(3). Becau se defendant did not argue th is issue below, we review it for plain error. United States v. Olano , 507 U.S. 725, 732-35 (1993). Liability for a crime of violence under § 924(c)(3) attaches where the predicate offense is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or propert y of another, or (B) that by its nature, involves a substantial risk that physical force agains t the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3). To determine whethe r a conviction offense is a “crime of violence,” we apply a categoric al approach “focus[ing] on th e statutory definition of the offense, rather than the manner in which the offender may have violated the statute in a particular circumstance.” United States v. Rafidi , 829 F.3d 437, 44 4 (6th Cir. 2016) (quoting United States v. Denson , 728 F.3d 603, 607 (6th Ci r. 2013)). Where, as here, a defendant is convicted of violating a divisi ble statute, we review a narrow category of documents to determine which por tion the defendant violated. See id

. The Hobbs Act provides that Whoever 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 do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do a nything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.No. 15-4360 United States v. Gooch Page 8

18 U.S.C. § 1951(a). It goes on to define robbery as the unlawful taking or obtaining of persona l 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, or property in his custody or po ssession, or the person or pr operty of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. 18 U.S.C. § 1951(b)(1). It defines extortion as “the obtaining of property from another, with his consent, induced by wr ongful use of actual or threat ened force, violence, or fear, or under color of official ri ght.” 18 U.S.C. § 1951(b)(2). Defendant contends that one can satisfy the offense elements of the Hobbs Act without using, attempting, or threatening phys ical force against the person or property of another as required by § 924(c)(3)(A). For example, defendant posits that one could nonviolently extort property from someone under color of official right. This is only so if the Hobbs Act is indivisible, i.e., if Hobbs Act extortion and Hobbs Act robbery are one and the same offense. See Rafidi , 829 F.3d at 444.

Defendant relies on Mathis v. United States to argue that the Hobbs Act is indivisible because robbery a nd extortion are alternative me ans of violating the statute rather than distinct offenses. 136 S. Ct. 2243 (2016). In Mathis , the Supreme Court considered a state burglary statute containi ng “alternative ways of satisfying a single locational element,” id . at 2250, and held that crimes of conviction encompassing a wider range of conduct than the generic offense cannot qualify as predicate offenses for sentencing enhancement under th e Armed Career Criminal Act, id . at 2251. A single crime of conviction under the Hobbs Act could not satisfy th e elements of both robbery and extortion: the former requires a taking from another “against his will,” while the latter is a taking “with his consent.” See 18 U.S.C. § 1951(b)(1) -(2). This difference goes not to the mere means of violating the H obbs Act, but to “the ‘constituent parts’ of [the] crime’s legal definition – the things the ‘prosecution must prove to sustain aNo. 15-4360 United States v. Gooch Page 9

conviction.’” Id . at 2248 (quoting Black’s Law Dic tionary 634 (10th ed. 2014)). Accordingly, Mathis is inapplicable. That different portions of § 1951(b) provide the distinct elements of robbery and extortion suggests the stat ute is divisible. In Rafidi , we interpreted 18 U.S.C. § 111, which “sets forth three separa te crimes” – a misdemeanor, a felony, and an aggravated felony. Id . at 445 (quotation omitted). Because the defendant in Rafidi was charged with, and convicted of, viola ting § 111(b), the aggravated felony, we looked to the elements of § 111(b) only

. Id . (“We thus consider whether § 111(b) – and not § 111(a), by itself – has as an element the use, attempte d use, or threatened use of physical force against the person or property of anot her.” (quotation omitted)). Applying Rafidi ’s approach, we conclude that § 1951 is a divi sible statute setting out separate crimes of Hobbs Act robbery and Hobbs Act extortion.

Where a divisible statute “coul d be violated in a way that would constitute a crime of violence and in a way that would not, we look beyond the statutory language and examine a limited set of documents to dete rmine whether the co nviction necessarily depended on the commission of a crime of violence.” Rafidi , 829 F.3d at 444 (quotations omitted); see also Shepard v. United States , 554 U.S. 13, 19-23 (2005) (discussing relevant documents). The indictment char ged defendant with “Conspiracy to Commit Hobbs Act Robbery” and “Hobbs Act Robbery.” The jury instructions referred to “robbery as that term is defined in [18 U.S. C.] § 1951(b)(1).” We thus consider only the portion of the Hobbs Act defining robbery fo r the elements of th e conviction offense. A conviction under § 1951(b)( 1) requires a finding of “actua l or threatened force, or violence, or fear of injury, immediate or fu ture.” Section 1951(b)(1 ) clearly “has as an element the use, attempted use, or threatened use of physical for ce against the person or property of another” as nece ssary to constitute a crime of violence under § 924(c)(3)(A). The jury therefore convicted defe ndant of a crime of violence.No. 15-4360 United States v. Gooch Page 10

Other circuits have unanimously ackno wledged Hobbs Act di visibility and found that Hobbs Act robbery constitute s a crime of violence. In United States v. Hill , the Second Circuit held that the defendant commi tted “Hobbs Act robber y,” and looked to the definition of robbery in § 1951(b)(1) for the elements of the offense. 832 F.3d 135, 138-39 (2d Cir. 2016). The S econd Circuit rejected the de fendant’s argument that one could commit Hobbs Act robbery by “putting the victim in fear of injury” without violence or the thr eat of violence. Id . at 142-43. It further noted that a hypothetical nonviolent violation of the statute, without evid ence of actual applica tion of the statute to such conduct, is insufficien t to show a “realistic probab ility” that Hobbs Act robbery could encompass nonviolent conduct. Id . at 139-40, 142-43 (citing Gonzales v. DuenasAlvarez , 549 U.S. 183, 193 (2007)). Five other circuit courts have reached similar conclusions. See United States v. Anglin , 846 F.3d 954, 964- 65 (7th Cir. 2017); United States v. Howard , 650 F. App’x 466, 467-68 (9th Cir. 2016); In re Saint Fleur , 824 F.3d 1337, 1340 (11th Cir. 2016); United States v. House , 825 F.3d 381, 387 (8th Cir. 2016); cf. United States v. Robinson , 844 F.3d 137, 141-44 (3d Ci r. 2016) (defendant’s Hobbs Act robbery conviction is a § 924(c) crime of violence because he was simultaneously convicted of brandishing a firearm during the robbery), id . at 150-51 (Fuentes, J., concurring) (Hobbs Act robber y is categorically a crime of violence under § 924(c)). We join our sister circuits in ruling that Hobbs Act r obbery constitutes a crime of violence. The district court did not plainly err in senten cing defendant under § 924(c).

AFFIRMED

.