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 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

ERIC GOOCH, 

Defendant-Appellant. 

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No. 15-4360 

Appeal from the United States 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. TABLEMAN, P.C., Grand Rapids, Michigan, 

for Appellant. Daniel R. Ranke, UNITED STATES 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. Defendant 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, armed 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 accompanied two others to the business in a 

getaway car. Defendant planned to enter, but changed his mind. Defendant witnessed 

Shawn Caldwell give a firearm to codefendant Larnell Tripp, who robbed the cashier and 

the business’s safe at gunpoint. A month later, defendant, Caldwell, and Greg Williams 

robbed a bank. Caldwell remained in the car while defendant 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 firearm against the bank manager’s 

head and pistol-whipping a security guard. Defendant neither admitted nor denied 

knowing prior to the robbery that Williams would use a firearm.

The prosecution charged defendant in a seven-count indictment consisting of two 

counts of conspiracy to obstruct commerce 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 two counts of armed bank robbery (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 multiple competency evaluations. 

Defendant filed and subsequently withdrew notice of his 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-representation colloquy and 

 1

The prosecution indicted defendant alongside codefendants Larnell Tripp, Jr., and Ashley White. Other 

participants in the robberies at issue – Shawn Caldwell and Greg Williams, Jr. – pleaded guilty to their involvement 

and separately appealed their sentences. Defendant Gooch is the sole party to this appeal. 
No. 15-4360 United States v. Gooch Page 3

allowed him to self-represent with appointed counsel as standby. Defendant crossexamined some witnesses but did not present an affirmative defense. He instead moved 

for a judgment of acquittal based on insufficient evidence, which the district court denied. 

The jury found defendant guilty, and the district court sentenced him to 664 months’ 

incarceration. 

On appeal, defendant challenges the sufficiency of the evidence that he aided and 

abetted the discount store robbery and second bank robbery, alleges the district court 

erred in allowing him to self-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 conviction “in the light most 

favorable to the prosecution” to determine whether “any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” Jackson v. 

Virginia, 443 U.S. 307, 319 (1979). 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 “associate 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 (6th Cir. 1983)). The prosecution must show 

that defendant had advance knowledge that a firearm 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 distinction 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 present during Tripp’s armed robbery of the 

discount store and therefore not guilty 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 codefendants 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 intent 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 robbery 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 established – or rebutted – that defendant 

knew Williams possessed a firearm during the second bank robbery. The prosecution 

relies on defendant’s participation 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 where jury instructions were insufficiently 

clear as to the defendant’s intent to aid an armed offense. United States v. Henry, 797 

F.3d 371, 374-77 (6th Cir. 2005) (applying plain error review to unpreserved jury 

instruction issue). Henry established that the intent instruction 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 the 
No. 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. Viewing 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 during 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 have recognized that a district court’s 

decision that a mentally compromised defendant may self-represent “merits deference.” 

United States v. Stafford, 782 F.3d 786, 791 (6th Cir. 2015). 

Defendant claims the district court deprived him of his right to counsel by 

allowing him to self-represent when he was incapable of giving 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 defendant coincided nearly verbatim with the 

colloquy provided in the Bench Book. The district court also thoroughly admonished 

defendant that a trained lawyer could better represent him and that it was unwise to selfrepresent. Defendant nevertheless 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 has not appealed the district court’s competency ruling, it is 

not before us. Nevertheless, the record shows that the district court gave, and defendant 

seized, abundant opportunities to raise the issue of his competency. Although an initial 

evaluation found defendant incompetent to stand trial, each of the multiple subsequent 

evaluations and hearings found that he was competent despite certain “malingering” 

behaviors. With the assistance of standby counsel, defendant moved for a competency 

evaluation soon after asserting his right to self-represent. The district court again found 

him competent. 

The competency standard for standing trial is identical 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 specific eye toward self-representation: it 

adjudged him mentally competent, and found that his waiver of the right to counsel was 

knowing and intelligent. The district court did not deny defendant the right to counsel by 

allowing him to self-represent. 

c. Consecutive Sentencing 

Defendant challenges the district court’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 convicted of multiple § 924(c) offenses in the 

same case, each conviction is a second or subsequent conviction for purposes of § 924(c), 
No. 15-4360 United States v. Gooch Page 7

allowing multiple consecutive sentences. Deal is still good law, and we are bound by the 

decision unless and until the Supreme 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 conviction does not qualify as a crime of 

violence under § 924(c)(3). Because defendant did not argue this 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 property of another, or (B) 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. 

18 U.S.C. § 924(c)(3). To determine whether a conviction offense is a “crime of 

violence,” we apply a categorical approach “focus[ing] on the 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, 444 (6th Cir. 2016) 

(quoting United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013)). Where, as here, a 

defendant is convicted of violating a divisible statute, we review a narrow category of 

documents to determine which portion 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 anything 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 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, or 

property in his custody or possession, or the person or property 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 wrongful use of actual or threatened force, violence, or fear, 

or under color of official right.” 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 physical 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 and extortion are alternative means of violating the statute 

rather than distinct offenses. 136 S. Ct. 2243 (2016). In Mathis, the Supreme Court 

considered a state burglary statute containing “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 the Armed Career Criminal Act, id. at 2251. A single 

crime of conviction under the Hobbs Act could not satisfy the 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 Hobbs Act, but to “the ‘constituent parts’ of 

[the] crime’s legal definition – the things the ‘prosecution must prove to sustain a 
No. 15-4360 United States v. Gooch Page 9

conviction.’” Id. at 2248 (quoting Black’s Law Dictionary 634 (10th ed. 2014)). 

Accordingly, Mathis is inapplicable. 

That different portions of § 1951(b) provide the distinct elements of robbery and 

extortion suggests the statute is divisible. In Rafidi, we interpreted 18 U.S.C. § 111, 

which “sets forth three separate 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, violating § 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, attempted use, or threatened use of physical force 

against the person or property of another.” (quotation omitted)). Applying Rafidi’s 

approach, we conclude that § 1951 is a divisible statute setting out separate crimes of 

Hobbs Act robbery and Hobbs Act extortion. 

Where a divisible statute “could 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 determine whether the conviction 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 charged 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 for the elements of the conviction offense. 

A conviction under § 1951(b)(1) requires a finding of “actual or threatened force, 

or violence, or fear of injury, immediate or future.” Section 1951(b)(1) clearly “has as an 

element the use, attempted use, or threatened use of physical force against the person or 

property of another” as necessary to constitute a crime of violence under § 924(c)(3)(A). 

The jury therefore convicted defendant of a crime of violence. 
No. 15-4360 United States v. Gooch Page 10

Other circuits have unanimously acknowledged Hobbs Act divisibility and found 

that Hobbs Act robbery constitutes a crime of violence. In United States v. Hill, the 

Second Circuit held that the defendant committed “Hobbs Act robbery,” 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 Second Circuit rejected the defendant’s argument that one 

could commit Hobbs Act robbery by “putting the victim in fear of injury” without 

violence or the threat of violence. Id. at 142-43. It further noted that a hypothetical 

nonviolent violation of the statute, without evidence of actual application of the statute to 

such conduct, is insufficient to show a “realistic probability” 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 Cir. 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 robbery is categorically a crime of violence under § 924(c)). 

We join our sister circuits in ruling that Hobbs Act robbery constitutes a crime of 

violence. The district court did not plainly err in sentencing defendant under § 924(c). 

AFFIRMED.