United States Court of Appeals

for the Fifth Circuit

No. 20-10052

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Michael Wright; Rickey Cherry, 

Defendants—Appellants.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:15-CR-191-1

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:*

A jury convicted Michael Wright of three counts of interference with 

commerce by robbery and aiding and abetting, 18 U.S.C. §§ 1951(a) & 2; two

counts of using, carrying, and brandishing a firearm during and in relation to 

a crime of violence (COV) and aiding and abetting, 18 U.S.C.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 18, 2021

Lyle W. Cayce

Clerk

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§§ 924(c)(1)(A)(ii), (C)(i) & 2; one count of using or carrying, or aiding and 

abetting another in using or carrying, a firearm during and in relation to a 

COV, §§ 924(c)(1)(A)(i), (C)(i) & 2; and one count of possessing a firearm 

after a felony conviction, 18 U.S.C. §§ 922(g)(1) & 924(a)(2). The same jury 

convicted Rickey Cherry of two counts of interference with commerce by 

robbery and aiding and abetting, §§ 1951(a) & 2, and two counts of using, 

carrying, and brandishing a firearm during and in relation to a COV and 

aiding and abetting, §§ 924(c)(1)(A)(ii), (C)(i) & 2. The district court 

sentenced Wright to a cumulative prison term of 438 months and Cherry to 

a cumulative prison term of 308 months. Additionally, the district court 

sentenced each to a cumulative supervised release term of three years. 

On appeal, Wright posits one issue in two parts, centered on the 

invocation of the Fifth Amendment testimonial privilege by counsel for

Kameron Robinson, one of Wright’s codefendants and a potential witness. 

First, Wright asserts that the district court erred by allowing counsel for

Robinson to invoke the privilege on Robinson’s behalf; second, he contends 

that the court erred by allowing a blanket invocation instead of conducting a 

particularized inquiry of Robinson himself. Because Wright did not object 

when the district court said that it would allow Robinson’s counsel to invoke 

the privilege and did not request a particularized inquiry, we review both 

issues for plain error. See United States v. Rodriguez, 602 F.3d 346, 350–51 

(5th Cir. 2010); see also United States v. Fernandez-Cusco, 447 F.3d 382, 384 

(5th Cir. 2006).

Under the plain error standard, Wright must show (1) a forfeited error 

(2) that is clear or obvious, i.e., not “subject to reasonable dispute,” and (3) 

that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135

(2009). If he meets those burdens, then we have “the discretion to remedy 

the error”—discretion that will not be exercised if the error has no serious 

effect on “the fairness, integrity or public reputation of judicial 

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proceedings.” Id. (emphasis in original); see United States v. Escalante-Reyes, 

689 F.3d 415, 425 (5th Cir. 2012) (en banc).

We reject Wright’s first argument, that it was a clear or obvious error 

for the district court to allow counsel to invoke the Fifth Amendment 

privilege for Robinson. Wright points us to no precedent holding that 

counsel may not advise the district court that his client invokes the privilege. 

Furthermore, his reliance on United States v. Colyer, 571 F.2d 941, 945 (5th 

Cir. 1978) is misplaced. We will not extend precedent on plain error review. 

See United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). At best, Wright 

may be able to show that the question is subject to reasonable debate. But 

that is not enough. See Puckett, 556 U.S. at 135; see also United States v. Ellis, 

564 F.3d 370, 377–78 (5th Cir. 2009).

Wright’s second argument likewise fails. Wright contends the district 

court erred by failing to make a particularized inquiry into the scope of 

Robinson’s invocation of the Fifth Amendment. See United States v. 

Goodwin, 625 F.2d 693, 701 (5th Cir. 1980); United States v. Gomez-Rojas, 507 

F.2d 1213, 1220 (5th Cir. 1975). Wright asserts that instead of probing 

Robinson’s invocation of his Fifth Amendment privilege, the district court 

impermissibly allowed Robinson’s counsel to make a blanket assertion of the 

privilege. See United States v. Mares, 402 F.3d 511, 514–15 (5th Cir. 2005). 

After a Fifth Amendment privilege is asserted, the district court 

should inquire “into the legitimacy and scope of the . . . assertion.” Goodwin, 

625 F.2d at 701. Typically, “[a] blanket refusal to testify is unacceptable.” 

United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). But we 

have upheld a district court’s acceptance of an invocation without further 

questioning when the district court was “presented with sufficient evidence 

with which to understand the likely implications of [the witness’s] testimony 

and, thus, the scope of his privilege.” Mares, 402 F.3d at 515.

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Here, we cannot conclude that it is obvious that the district court 

lacked “sufficient evidence with which to understand the likely implications 

of [Robinson’s] testimony and, thus, the scope of his privilege.” Id. Before 

his counsel invoked the Fifth Amendment privilege, Robinson had written 

two letters to Wright’s counsel stating that Wright was not involved in one 

of the charged robberies, giving rise to Wright’s desire to call Robinson as a 

witness. After discussion with counsel for both Wright and the Government, 

the district court called Robinson’s attorney to the stand, where he invoked 

the privilege on Robinson’s behalf. By then, Robinson had entered guilty 

pleas on two counts against him but had yet to be sentenced. See Mitchell v. 

United States, 526 U.S. 314, 326 (1999) (“Where the sentence has not yet 

been imposed a defendant may have a legitimate fear of adverse 

consequences from further testimony.”); see also United States v. Brooks, 681 

F.3d 678, 711 (5th Cir. 2012).

Robinson’s letters were initially attached to a pre-trial motion for 

continuance but later marked for identification during the proceedings. 

Thus, the letters provided the district court at least some delineation of 

Robinson’s likely testimony and, therefore, the scope of his privilege. 

Beyond that, Wright did not object to the district court’s decision to 

recognize Robinson’s Fifth Amendment privilege without a particularized 

examination or proffer questions he would have asked of Robinson. While 

perhaps a closer call, we cannot say that the district court plainly erred under 

the circumstances by failing to conduct a “particularized inquiry” into the 

areas that the defendant wanted to explore. Cf. Melchor Moreno, 536 F.2d at 

1049; see also United States v. Salgado-Palma, 551 F. App’x 776, 779–80 (5th 

Cir. 2014) (finding plain error in blanket assertion of privilege and remanding 

so that district court could “make the proper inquiry into the witnesses’ 

claims of privilege”).

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Even assuming that Wright met the first three prongs of the plain error 

standard, we decline to exercise our discretion to excuse any error in this 

case, as the purported error had no serious effect on “the fairness, integrity 

or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135. 

During his own sentencing, Robinson recanted the exculpatory statements 

he made in the letters. He further stated that he was coerced by Wright into 

writing the letters on Wright’s behalf. Additionally, we are satisfied that the 

record evidence does not call Wright’s convictions into question. Mindful of 

our standard of review, we thus find no reversible error on this issue.

That being said, Wright’s judgment contains a clerical error. The 

judgment statesthat Wright’s count seven conviction was for using, carrying, 

and brandishing a firearm during and in relation to a crime of violence. But 

the jury’s verdict shows that Wright’s count seven conviction was for using 

or carrying, or aiding and abetting another in using or carrying, a firearm 

during and in relation to a crime of violence. The district court’s 60-month 

sentence likewise reflects that offense. We therefore modify the district 

court’s judgment to correct this clerical error and conform the judgment to 

the jury’s verdict. See 28 U.S.C. § 2106; see United States v. MondragonSantiago, 564 F.3d 357, 369 (5th Cir. 2009); see also United States v. Spencer, 

609 F. App’x 781, 784 (5th Cir. 2015).

Turning now to Cherry, we reject his argument that his convictions 

and sentences for using, carrying, and brandishing a firearm in furtherance of 

a COV, namely, Hobbs Act robbery, must be vacated because Hobbs Act 

robbery is not a COV within the meaning of the statute. More specifically, 

Cherry now contends that Hobbs Act robbery does not satisfy 

§ 924(c)(3)(A). We do not decide whether Cherry preserved this claim of 

error. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). 

Regardless, precedent forecloses the claim. See United States v. Bowens, 907 

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F.3d 347, 353–54 (5th Cir. 2018); see also United States v. Buck, 847 F.3d 267, 

274–75 (5th Cir. 2017).

Additionally, reviewing for plain error, we reject the claim that the 

district court erred by enhancing Cherry’s Hobbs Act robbery sentences 

under § 2B3.1(b)(4)(A) of the Sentencing Guidelines, which authorizes a 

four-level increase of the offense level “if any person was abducted to 

facilitate commission of” robbery “or to facilitate escape” after robbery. See 

Puckett, 556 U.S. at 136; United States v. Neal, 578 F.3d 270, 272 (5th Cir. 

2009). Guidelines commentary explains that “[t]he guideline provides an 

enhancement for robberies where the victim was forced to accompany the 

defendant to another location.” U.S. Sent’g Guidelines Manual

§ 2B3.1 cmt. background. A person is abducted if “forced to accompany an 

offender to a different location.” U.S. Sent’g Guidelines Manual

§ 1B1.1 cmt. n.1(A); see § 2B3.1 cmt. n.1; see also United States v. Smith, 822 

F.3d 755, 764 (5th Cir. 2016) (per curiam).

During each robbery at issue here, Cherry accompanied a victim to a 

new location. See United States v. Redmond, 965 F.3d 416, 419–20 (5th Cir.

2020), petition for cert. filed, (U.S. Dec. 10, 2020) (No. 20-6631); see also 

United States v. Young, 470 U.S. 1, 16 (1985). According to the presentence 

report, during his first robbery, Cherry, together with Wright, forced the 

store manager into the rear storage room, where the manager unlocked the 

telephone storage area and Cherry and Wright put cellular telephones into a 

duffle bag. Also, Cherry forced the manager into a restroom and repeatedly 

struck him on the head with a firearm. Cherry and Wright then took the 

manager from the restroom to the front counter sales area, where Cherry 

accessed cellular telephones and the cash register. Also according to the 

presentence report, during his second robbery, Cherry forced the manager 

and a customer to the rear of the store, where Cherry and Wright took 

telephones from the safe. As Cherry fails to “demonstrate any error at all”

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in the application of § 2B3.1(b)(4)(A), this claim does not survive plain error 

review. See United States v. Teuschler, 689 F.3d 397, 400 (5th Cir. 2012). 

We MODIFY Wright’s judgment to correct the clerical error noted 

above. Otherwise, we AFFIRM the judgments against Wright and Cherry.

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