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File Name: 16a0614n.06

Case No. 15-6069

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICKLESS WHITSON,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE MIDDLE DISTRICT OF 

TENNESSEE 

BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.

SUTTON, Circuit Judge. Looking for cocaine, marijuana, and cash, Nickless Whitson 

robbed two houses with two sets of co-conspirators. That led to eight criminal convictions, 

several of which he challenges on appeal. We affirm nearly all of the convictions but must 

vacate two of the § 924(c) convictions and remand for entry of a revised judgment and sentence.

In 2011, Whitson planned and executed the robbery of a house in LaVergne, Tennessee, 

where Chris Leggs, a cocaine dealer, lived. See United States v. Vichitvongsa, 819 F.3d 260, 265 

(6th Cir. 2016). Whitson met with Manila Vichitvongsa, Jatavius Sanders, Sithana Keonoi, Beth 

Keonoi, and Jessica Parker at a KFC and caravanned to the house. Leggs wasn’t home, but 

Dominique Baker was. The co-conspirators stuck guns in Baker’s face, forced her inside onto a 

couch, and tied her up. Hoping to find cocaine and money from Leggs’ drug dealing, the co-
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conspirators forcibly interrogated Baker, kicking her in the face and threatening to kill her. An 

armed Whitson served as a lookout. The conspirators didn’t find any cocaine or cash, settling 

instead for two guns and some jewelry. 

Vichitvongsa and his friend Blake Byrd wanted to retaliate against Daniel Crowe, a 

marijuana distributor who had beaten up Byrd in February 2011. Around the spring of 2011, 

Byrd began talking with Vichitvongsa about the Elmwood house, where they thought Crowe had 

stashed about $300,000 in drug proceeds. Vichitvongsa’s plan to rob the house took shape 

during the summer of 2011. Byrd, Vichitvongsa, and Whitson went to case the house. Soon 

after, Vichitvongsa, Nickless Whitson, Angela Whitson, Sithana Keonoi, Beth Keonoi, and 

Sanders travelled to the Elmwood house and hid nearby until the sun set. That night, several of 

the conspirators, including an armed Whitson, left the cover of the woods and broke into the 

house. Lorraine and William Webb, Crowe’s mother and stepfather, were sleeping inside, but 

Crowe was not there. The robbers cuffed the Webbs’ hands with zip ties, put guns to their heads, 

and ransacked the house looking in vain for marijuana and money. When the frustrated 

assailants threatened to burn Lorraine Webb alive, William Webb freed himself from his 

restraints and lunged at the robbers with a hard plastic knife sheath. Sithana Keonoi shot 

William Webb (who survived), and the robbers fled the house with grow lights, some guns, and 

the Webbs’ car. See Vichitvongsa, 819 F.3d at 265.

The government indicted Whitson on eight counts. As to the LaVergne robbery, the jury 

found him guilty of (1) conspiring to violate the Hobbs Act, 18 U.S.C. § 1951; (2) aiding and 

abetting the possession of a firearm in relation to a crime of violence, id. §§ 2, 924(c)(1)(A); 

(3) conspiring to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846; and (4) aiding and abetting the 

possession of a firearm in relation to a drug-trafficking crime, 18 U.S.C. §§ 2, 924(c)(1)(A). 
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As to the Elmwood robbery, the jury found Whitson guilty of (1) conspiring to violate the Hobbs 

Act; (2) brandishing a firearm in relation to a crime of violence, id. §§ 2, 924(c)(1)(A); 

(3) conspiring to distribute marijuana, 21 U.S.C. §§ 841(a)(1), 846; and (4) brandishing a firearm 

in relation to a drug-trafficking crime, 18 U.S.C. §§ 2, 924(c)(1)(A). The district court sentenced 

Whitson to 1,252 months. 

Connection to interstate commerce. On appeal, Whitson argues that the government 

failed to show that the Hobbs Act robberies affected interstate commerce. “In order to obtain a 

conviction under the Hobbs Act for the robbery or attempted robbery of a drug dealer,” the 

Supreme Court has said, “the Government need not show that the drugs that a defendant stole or 

attempted to steal either traveled or were destined for transport across state lines. Rather, to 

satisfy the Act’s commerce element, it is enough that a defendant knowingly stole or attempted 

to steal drugs or drug proceeds, for, as a matter of law, the market for illegal drugs is ‘commerce 

over which the United States has jurisdiction.’” Taylor v. United States, 136 S. Ct. 2074, 2081 

(2016); see Gonzales v. Raich, 545 U.S. 1 (2005). The government satisfied the commerce 

element of the Hobbs Act because it proved that Whitson and his co-conspirators attempted to 

steal marijuana, cocaine, and drug proceeds. See Taylor, 136 S. Ct. at 2081–82.

Some justices and judges, it is true, have expressed skepticism about the reach of federal 

power in this area, noting the federal government’s limited and enumerated powers and the 

oddity that it can punish “local, small-scale robberies that States traditionally prosecute.” E.g.,

id. at 2089 (Thomas, J., dissenting). But those expressions have come through dissents. As for 

majority decisions in this area, the rule is that “it makes no difference . . . that any actual or 

threatened effect on commerce in [this] particular case is minimal.” Id. at 2081. That Whitson 

and his co-conspirators attempted to steal drugs that were in interstate commerce is all that 
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matters. See Raich, 545 U.S. at 22; United States v. Conyers, 603 F. App’x 462, 465–66 (6th 

Cir. 2015).

Hobbs Act robbery instructions. In a variation on this theme, Whitson asked the district 

court to instruct the jury that each robbery “involved private citizens/individuals and was 

directed at a private residence rather than a business. The robber[ies] . . . had no ‘realistic 

probability’ of affecting interstate commerce.” R. 830 at 2. The proposed instructions were part 

and parcel of the defense’s theory that, because Whitson and his co-conspirators robbed private 

homes rather than legitimate businesses, the government faced a higher bar for the commerce 

element and had to show that these particular conspiracies had “a realistic probability of 

affecting interstate commerce.” R. 928 at 213–14. But the Supreme Court’s decision in Taylor 

makes such an instruction unnecessary—and indeed incorrect. All the government had to show 

was that Whitson “knowingly stole or attempted to steal drugs or drug proceeds.” Taylor, 136 S. 

Ct. at 2081. The government did not have to show that these drugs “either traveled or were 

destined for transport across state lines.” Id. A district court does not abuse its discretion by 

rejecting inaccurate instructions. 

Two separate sets of conspiracies. Whitson adds that the government failed to prove

beyond a reasonable doubt that there were “two separate drug conspiracies and two separate 

conspiracies to violate the Hobbs Act.” Appellant’s Br. 15. As he sees it, there was just one 

extended Hobbs Act robbery conspiracy and one extended drug conspiracy that covered the 

LaVergne and Elmwood robberies. But another panel of this court has already rejected this 

argument. It held that the LaVergne conspiracies were distinct from the Elmwood conspiracies. 

Vichitvongsa, 819 F.3d at 272–74. That by itself suffices to reject the argument.
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Out of an abundance of caution, we will address the point nonetheless. At stake is 

whether there was a “single agreement to commit several crimes constitut[ing] one [robbery] 

conspiracy” and one drug conspiracy or instead “multiple agreements to commit separate crimes 

constitut[ing] multiple [robbery] conspiracies” and multiple drug conspiracies. Id. at 273

(quotation omitted). That inquiry turns on “a five-factor ‘totality of the circumstances’ test” that 

“consider[s] the elements of: 1) time; 2) persons acting as co-conspirators; 3) the statutory 

offenses charged in the indictments; 4) the overt acts charged by the government or any other 

description of the offenses charged which indicates the nature and scope of the activity which the 

government sought to punish in each case; and 5) places where the events alleged as part of the 

conspiracy took place.” Vichitvongsa, 819 F.3d at 273 (quotation omitted). The district court’s 

application of this test receives clear-error review. Id. 

Because “several of these factors differ between the [sets of] conspiracies,” “including 

the most significant factor, the nature of the co-conspirators’ actions,” the district court did not 

clearly err in determining that there were two separate sets of conspiracies. Id. at 273–74. 

“[T]here is no evidence weaving the two [robberies] together into a single, overarching plan to 

target money and drugs, or to use violence to accomplish this goal. Rather, the evidence 

confirms the robberies were acts of opportunity without overarching collaboration, with different 

co-conspirators driving each.” Id. at 274. The nature of the activities, the crucial factor, “weighs 

heavily in the government’s favor.” Id. 

The location of the sets of conspiracies favors the government too. Id. The conspirators 

staged the LaVergne robbery from a KFC and the Elmwood robbery from a Home Depot. The 

robberies “all occurred in metropolitan Nashville,” roughly an hour’s drive away from each 

other, “but the record is devoid of any other evidence connecting these locations together other 
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than the fact that they were circumstantial opportunit[ies] near the co-conspirators’ residences.” 

Vichitvongsa, 819 F.3d at 274 (quotation omitted). 

Time also favors the government. The two robberies took place two weeks apart, and 

only a few of the conspirators contemplated robbing the Elmwood house before they robbed the 

LaVergne house. Id. at 273. The government’s success on these three factors suffices to 

conclude that the court did not clearly err by treating the LaVergne conspiracies as separate from 

the Elmwood conspiracies. Id. at 274.

The other two factors, we realize, favor the government less convincingly or not at all. 

While “there is overlap between the conspirators in the two robberies,” id. at 273, it is not 

complete. “[T]here is no evidence linking Byrd, the person responsible for providing the ‘lead’ 

for the [Elmwood] residence,” or Angela Whitson to the LaVergne robbery. Id. at 274. And 

Jessica Parker didn’t participate in the Elmwood conspiracies. “At best, the [persons] factor 

slightly favors defendant.” Id. Second, the offenses charged in the indictment were identical for 

the two sets of conspiracies except for “the place of the robbery and the kind of drugs sought.” 

Id. This factor “weighs in defendant’s favor” but not sufficiently to outweigh the others. Id.

Vagueness challenge. Whitson claims that we should throw out his four firearm 

convictions because § 924(c)(3)(B)’s definition of “crime of violence” is unconstitutionally 

vague. See Johnson v. United States, 135 S. Ct. 2551 (2015). But the two firearm convictions 

related to the drug distribution conspiracies were “in relation to . . . drug trafficking crime[s]” 

and did not rely on the definition of “crime of violence.” 18 U.S.C. § 924(c)(1)(A). Moreover, 

§ 924(c)(3)(B), we have already held, is not unconstitutionally vague. United States v. Taylor, 

814 F.3d 340, 375–79 (6th Cir. 2016).
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Double jeopardy challenge to firearm charges. The government and Whitson agree that 

two of his firearms convictions violated the Double Jeopardy Clause in light of Vichitvongsa,

819 F.3d at 266–70. The jury convicted Whitson on four firearm charges, two for the LaVergne 

robbery and drug conspiracies and two for the Elmwood robbery and drug conspiracies. But 

because Whitson “chose to use a firearm once during each robbery to simultaneously further two 

conspiracies,” the district court should have “dismiss[ed] one of defendant’s § 924(c) counts for 

each robbery” and drug conspiracy set. Vichitvongsa, 819 F.3d at 268, 270. Consistent with the 

government’s confession of error, we vacate two of Whitson’s § 924(c) convictions, either count 

2 or 4 (the LaVergne set) plus either count 6 or 8 (the Elmwood set). “[T]he proper penalties are 

the same given § 924(c)’s mandatory term (regardless of which two of the four counts are 

vacated),” making it appropriate to “remand to the district court for the limited purpose of 

entering a revised judgment and sentence consistent with this opinion.” Id. at 270; 18 U.S.C. 

§ 924(c)(1)(A)(1), (c)(1)(C)(1).

For these reasons, we reverse and vacate two of Whitson’s § 924(c) convictions, remand 

for entry of a revised judgment and sentence, and affirm the rest of the district court’s judgment.