IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20697

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

CLARENCE BERNARD BUCK, also known as BB; KENDAL ALLEN, 

 Defendants - Appellants

Appeals from the United States District Court 

for the Southern District of Texas

Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.

WIENER, Circuit Judge:

Defendants-Appellants Clarence Bernard Buck and Kendall Allen 

(collectively “defendants”) were charged with various crimes, including robbery

in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They proceeded to jury trial,

but three days into it the district court granted their motions for a mistrial. At 

the conclusion of the second jury trial, Buck and Allen were convicted on all 

counts. Buck was sentenced to 1,846 months of imprisonment, and Allen was 

sentenced to 1,435 months. They now appeal, contending that the retrial of 

their case violated their constitutional rights and that the classification of 

Hobbs Act robbery as a crime of violence was error. In addition, Buck asserts

that the Hobbs Act robbery jury instruction was flawed, the abduction 

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2017

Lyle W. Cayce

Clerk

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enhancement to his sentence was error, and his restitution obligation should 

be shared with others; and Allen appeals his 119-year sentence as a violation 

of the Eighth Amendment and the introduction of his statements to a 

government witness as reversible error. We affirm.

I.

FACTS AND PROCEEDINGS

A. Facts

Buck and Allen, along with other individuals, were accused of

participated in armed robberies of various T-Mobile stores and a flea market 

jewelry store in the Houston area between November 2012 and July 2013. The 

robberies followed similar patterns, including forcing store employees from the 

front of the store to the back, where cellular phones were stored. All of the 

robberies in question included defendants or their co-conspirators brandishing 

firearms during the commission of those crimes.

B. Procedure

In March 2015, defendants entered pleas of not guilty and proceeded to

trial by jury. Three days into the trial, it came to light that the government 

had not turned over all of the required discovery materials, including witness 

statements, a police interview with Buck, and two police lineups. The district

court held a hearing in which it admonished the government for its failure to 

turn over such materials. The court then granted defendants’ motions for 

mistrial, but it denied their motions for dismissal of the case with prejudice. 

A second jury trial took place some five months later, in August 2015. 

Between the first and second trials, defendants again filed motions to dismiss 

the case with prejudice, which the court denied in a summary order. The jury 

convicted Buck and Allen of conspiracy to interfere with commerce by robbery, 

in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Buck was also convicted of

(1) seven counts of committing, or aiding and abetting, Hobbs Act robbery, (2)

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seven counts of using and carrying, or aiding and abetting the use of and 

carrying of a firearm during and in relation to a crime of violence, in violation 

of 18 U.S.C. § 924(c)(1)(A), and (3) being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g)(1). Allen was convicted of six counts of Hobbs 

Act robbery and six counts of using and carrying a firearm during and in 

relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).

The district court sentenced Buck to concurrent sentences of 240 months

of imprisonment on the robbery counts; a consecutive 22-month term on the 

charge of being a felon in possession of a firearm; a mandatory consecutive 84-

month term of imprisonment on one firearm count; and five additional 

consecutive terms of 300 months of imprisonment on the remaining firearm 

counts, for a total of 1,846 months of imprisonment. The court sentenced Allen 

to 151 months for the robberies; a mandatory consecutive term of 84 months; 

and four additional consecutive terms of 300 months of imprisonment on the 

firearms counts for a total of 1,435 months of imprisonment. Both defendants 

appeal their convictions and sentences.

II.

THE SECOND TRIAL

Defendants challenge the second jury trial for different reasons. Allen 

insists that the second trial amounts to double jeopardy and that his 

constitutional rights under Brady v. Maryland1 were violated. Buck asserts 

 

1 373 U.S. 83 (1963).

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that the district court should have sanctioned the government for discovery 

violations by dismissing the case against him with prejudice. 

A. Standard of Review

The Fifth Amendment protects individuals from “repeated prosecutions 

for the same offense.”2 We review challenges to the prohibition against double 

jeopardy de novo.3 We review sanctions imposed by the district court for 

discovery-related violations for abuse of discretion.4 We only reverse the trial 

court’s factual findings related to double jeopardy challenges and discoveryrelated violations if they are clearly erroneous.5

B. Analysis

The government may not use a jury as a focus group; neither may it use 

a jury trial as a discovery tool.6 When a trial is terminated over defense 

objection, retrial is prohibited absent “manifest necessity.”7 Retrial of a case 

following a motion for mistrial by the defense is allowed, however, unless 

government conduct that was “intended to ‘goad’ the [defense] into moving for 

a mistrial” prompted the defense’s motion.8 

In this case, it was not until the third day of the initial trial that it came 

to light that the government had failed to turn over some discovery materials, 

including various interviews with witnesses – including Buck – and records of 

police line-ups. When that matter was brought to the attention of the district 

court, it held a hearing and granted defendants’ motion for mistrial, but denied 

defendants’ motions for dismissal of the case with prejudice. 

 

2 United States v. Dinitz, 424 U.S. 600, 606 (1976).

3 United States v. Dugue, 690 F.3d 636, 637-38 (5th Cir. 2012). 

4 United States v. Dvorin, 817 F.3d 438, 453 (5th Cir. 2016). 

5 See Dugue, 690 F.3d at 637-38. 

6 See United States v. DiFrancesco, 449 U.S. 117, 128 (1980). 

7 Martinez v. Caldwell, 644 F.3d 238, 243 (5th Cir. 2011). 

8 Oregon v. Kennedy, 456 U.S. 667, 676 (1982). 

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1. Allen’s Claim of Double Jeopardy

Allen contends that the government “goaded” him into seeking a mistrial 

because the trial was “not going well” for the government and defense counsel 

had pointed out weaknesses in the government’s case. “Goading” is narrowly 

defined, and “[g]ross negligence by the prosecutor, or even intentional conduct 

that seriously prejudices the defense, is insufficient” to be characterized as 

“goading.”9 “Instead, there must be ‘intent on the part of the prosecutor to 

subvert the protections afforded by the Double Jeopardy Clause.’”10

The government counters that it had no prior knowledge of the missing

items of discovery. It says that it asked the state agencies that initially 

investigated defendants’ crimes if they had turned over “everything” in their

possession, to which the state agencies responded affirmatively. The 

government also relies on its open-file discovery policy and on the fact that it 

continued to produce materials promptly as it received them. 

It is true that in the first trial, the government heard defendants’ 

opening statements and their cross-examination of government witnesses, and 

had the opportunity to gauge jury reactions to their own witnesses. Regardless, 

the “objective facts and circumstances” in this case do not suggest that the 

prosecutors engaged in “conduct . . . intended to provoke the defendant[s] into 

moving for a mistrial.”11 We are satisfied that the government did not goad 

Allen into seeking a mistrial and that his double jeopardy rights thus were not 

violated. 

 

9 United States v. El-Mezain, 664 F.3d 467, 561 (5th Cir. 2011). 

10 Id. (quoting United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003)). 

11 Kennedy, 456 U.S. at 675, 679.

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2. Allen’s Brady Claim

Allen also urges that the government failed to meet its constitutional 

obligations imposed by Brady.12 Under Brady, “the individual prosecutor has 

a duty to learn of any favorable evidence known to the others acting on the 

government’s behalf in this case, including the police.”13 A Brady violation 

requires that the evidence withheld by the government be either exculpatory 

or impeaching, and that prejudice ensued.14 Allen has not identified any

exculpatory or impeaching evidence that was withheld by the prosecution. The 

retrial of the criminal case against Allen did not violate his constitutional 

rights under Brady and its progeny.

3. Buck’s Claims

Buck acknowledges that his being retried is not barred by the double 

jeopardy clause. Instead, Buck contends that, given the concerns underlying 

double jeopardy and the rules of procedure,15 the district court erred by 

allowing the retrial. We have held that, with regard to the imposition of 

sanctions for discovery violations, district courts should consider: “1) the 

reasons why disclosure was not made; 2) the amount of prejudice to the 

opposing party; 3) the feasibility of curing such prejudice with a continuance 

of the trial; and 4) any other relevant circumstances.”16

As to the first factor, the government again asserts that the failure to 

disclose the evidence in question was not intentional. Generally, a district 

court will not impose severe sanctions in the absence of bad faith.17 As 

 

12 373 U.S. 83. 13 Strickler v. Greene, 527 U.S. 263, 281 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 

433-34 (1995)). 

14 Id. at 281-82. 

15 The procedural rules that Buck appears to be relying on are Brady and Rule 16 of 

the Federal Rules of Criminal Procedure.

16 United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000). 17 Dvorin, 817 F.3d at 453.

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discussed above, nothing in the record suggests that the government’s failure 

to disclose evidence was intentional. Thus, this factor weighs against dismissal

with prejudice as a sanction.

As to the second factor, Buck – like Allen – argues that by hearing his 

opening statement and his defense theory in the first trial, the government 

was given a significant advantage. However, there is no evidence that 

defendants were prejudiced by the first trial. Thus, this factor is neutral.

The third factor weighs against dismissal with prejudice as a sanction 

because Buck had almost five months to prepare a new strategy based on the 

new discovery. 

As to the fourth factor, Buck does not address other relevant 

circumstances, but relies exclusively on policy arguments that his case should 

be dismissed with prejudice as a sanction for the government’s discovery 

violations. Even if we were persuaded that such policy arguments weigh in 

favor of dismissal, the district court did not abuse its discretion in refusing to 

dismiss the case based on the government’s discovery violations. 

III.

HOBBS ACT ROBBERY AS A CRIME OF VIOLENCE

Defendants insist that their Hobbs Act robbery convictions do not qualify 

as crimes of violence under 18 U.S.C. § 924(c)(3)(A) and that they cannot 

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qualify under § 924(c)(3)(B) because the clause is vague and crediting it would 

violate due process.

A. Standard of Review

Because this challenge is asserted for the first time on appeal, we review 

it for plain error.18

B. Analysis

Section 924(c) punishes “any person who, during and in relation to any 

crime of violence uses or carries a firearm. . . .”19 When the firearm is 

brandished during and in relation to any crime of violence the statutory 

minimum becomes seven years’ imprisonment.20

Section 924(c) contains two definitions of a crime of violence. Under § 

924(c)(3)(A), a crime of violence is a felony that “has an element the use, 

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

property of another.”21 Under § 924(c)(3)(B), which is referred to as the 

“residual clause,” a crime of violence is a felony 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.”22

Whether a particular offense is a crime of violence is a question of law 

for the court to resolve.23 The Supreme Court applies a categorical approach,

looking only to the statutory definitions – i.e., the elements – of a defendant’s 

offense, and not to the particular facts underlying the convictions.24 The Hobbs 

Act defines robbery, in pertinent part, as “the unlawful taking or obtaining of 

 

18 United States v. Williams, 343 F.3d 423, 431 (5th Cir. 2003).

19 18 U.S.C. § 924(c)(1)(A).

20 18 U.S.C. § 924(c)(1)(A)(ii). 

21 18 U.S.C. § 924(c)(3)(A). 

22 18 U.S.C. § 924(c)(3)(B).

23 United States v. Credit, 95 F.3d 362, 364 (5th Cir. 1996).

24 Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). 

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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.”25 Allen argues26 that because 

an individual could be convicted under the Hobbs Act for nothing more than 

threatening some future injury to the property of a person who is not present, 

this cannot be a crime of violence under the statute.27

In United States v. Hill, the Second Circuit concluded that the Hobbs 

Act’s reference to actual or threatened force or violence “would appear, selfevidently, to satisfy” the standard needed for a crime of violence under 

§ 924(c)(3)(A).28 In addition, the Third, Eighth, and Eleventh Circuits have 

held that the Hobbs Act definition of robbery describes a crime of violence 

under § 924(c)(3)(A), and the Ninth Circuit has reached the same conclusion in 

an unpublished opinion.29 It was not error – plain or otherwise – for the district 

court to classify a Hobbs Act robbery as a crime of violence. 

 

25 18 U.S.C. § 1951(b)(1).

26 Buck’s challenge to § 924(c) appears to rely only on his claim that § 924(c)(3)(B) is 

unconstitutional. As discussed below, we need not address § 924(c)(3)(B) to hold that the 

district court did not err in classifying the Hobbs Act robbery as a crime of violence. 

27 Allen argues that because his alleged criminal conduct could be defined as 

“obtaining of personal property . . . in the presence of another, against his will by means of . 

. . fear of injury, immediate or future, to . . . the . . . property of a . . . member of his family,” 

his conviction cannot be a crime of violence because it does not require the kind of violent 

force needed for a crime of violence under this clause of § 924. Allen cites Johnson v. United 

States, for the proposition that the Supreme Court interprets “physical force” to mean “violent

force – that is, force capable of causing physical pain or injury to another person.” 559 U.S. 

133, 140 (2010). 

28 832 F.3d 135, 140 (2d Cir. 2016).

29 United States v. Robinson, 844 F.3d 137, 140-41 (3d Cir. 2016); In re Fleur, 824 F.3d 

1337, 1341 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); United 

States v. Howard, 650 F.. App’x 466, 468 (9th Cir. 2016). 

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IV.

HOBBS ACT ROBBERY JURY INSTRUCTION

Buck also objects to the district court’s use of the Fifth Circuit pattern 

jury instruction30 on the Hobbs Act to the extent that it does not require the 

jury to find that he had a culpable mental state regarding the effect of his 

conduct on interstate commerce.

A. Standard of Review

We review the use of a particular jury instruction for abuse of 

discretion.31 We ask “whether the instruction, taken as a whole, is a correct 

statement of law and whether it clearly instructs jurors as to the principle of 

the law applicable to the factual issues confronting them.”32

B. Analysis

The Hobbs Act imposes criminal penalties on, “[w]hoever 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 

 

30 The Fifth Circuit pattern jury instruction for Hobbs Act robbery, which was given 

at the second trial, states in relevant part:

For you to find the defendant guilty of this crime, you must be convinced that 

the government has proved each of the following beyond a reasonable doubt:

First: That the defendant obtained [attempted to obtain][conspired to obtain]

property from another with that person's consent;

Second: That the defendant did so by wrongful use of actual or threatened 

force, violence, or fear; and

Third: That the defendant's conduct in any way or degree obstructed 

[delayed][affected] commerce [the movement of any article or commodity in 

commerce].

The government is not required to prove that the defendant knew that his conduct 

would obstruct [delay][affect] commerce [the movement of any article or commodity in 

commerce]. It is not necessary for the government to show that the defendant actually 

intended or anticipated an effect on commerce by his actions. All that is necessary is 

that the natural and probable consequence of the acts the defendant took would be to 

affect commerce. If you decide that there would be any effect at all on commerce, then 

that is enough to satisfy this element. Fifth Cir. Pattern Jury Instr. 2.73A (2015).

31 United States v. Anderson, 560 F.3d 275, 279 (5th Cir. 2009). 

32 Id. (internal quotation marks omitted). 

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do . . . .”33 This language “is unmistakably broad . . . reach[ing] any obstruction, 

delay, or other effect on commerce, even if small, and the Act’s definition of 

commerce encompasses ‘all . . . commerce over which the United States has 

jurisdiction.’”34

Buck submitted proposed jury instructions, which included the 

requirement that the government prove the “defendant knew that his conduct, 

or the conduct of another which he aided or abetted, would or could materially 

obstruct, delay, or affect commerce.” He requested that the final paragraph of 

the portion of the pattern jury instruction, which states that the government 

is not required to prove intent, knowledge, or anticipation of an affect on 

commerce, not be submitted to the jury. The district court denied Buck’s 

request and used the entire Hobbs Act pattern jury instruction to instruct the 

jury.

We have held that the Hobbs Act “does not require that the defendant 

have specifically intended to affect interstate commerce,” or that he acted with 

knowledge interstate commerce would be affected.35 Courts have routinely 

held that a criminal defendant need not know of a federal crime’s connection 

to interstate commerce to be found guilty.36 Thus, the use of the Fifth Circuit 

pattern jury instruction for Hobbs Act robbery was not an abuse of discretion 

by the district court.

 

33 18 U.S.C. § 1951(a).

34 Taylor v. United States, 136 S. Ct. 2074, 2079 (2016) (quoting 18 U.S.C. § 1951(b)(3)).

35 United States v. Hebert, 131 F.3d 514, 523 (5th Cir. 1997). 36 See, e.g. id.; United States v. Jinian, 725 F.3d 954, 964-66 (9th Cir. 2013); United 

States v. Lindemann, 85 F.3d 1232, 1241 (7th Cir. 1996); United States v. Blackmon, 839 F.2d 

900, 907 (2d Cir. 1988). 

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V.

THE ABDUCTION ENHANCEMENT

Buck objects to an enhancement of his sentence based on abduction.

A. Standard of Review

We review the district court’s interpretation of the Sentencing 

Guidelines de novo.37 We review the district court’s factual findings for clear 

error.38

B. Analysis

The district court applied a four-level enhancement for abduction to

Buck’s base offense level, pursuant to Sentencing Guideline § 2B3.1(b)(4)(A).

That provision allows enhancement “[i]f any person was abducted to facilitate 

commission of the offense or to facilitate escape . . . .”39 “Abducted” is defined 

as “a victim was forced to accompany an offender to a different location.”40 Buck 

objects to this enhancement, claiming that the facts at issue in this case are 

distinguishable from case law that supports the “abduction” enhancement and 

that the term “location” in the Sentencing Guidelines is ambiguous.

Buck notes that the presentence report did not specifically address the 

conduct that led to the abduction enhancement. He assumes that it refers to

the movement of victim employees from the front to the back of the T-Mobile 

stores during the robberies of those stores. 

We have repeatedly construed the “abduction” enhancement as 

applicable when a victim is forced from one part of a building to another.41 We 

 

37 United States v. Smith, 822 F.3d 755, 762 (5th Cir. 2016). 

38 Id.

39 U.S. SENTENCING GUIDELINES MANUAL § 2B3.1(b)(4)(A) (U.S. SENTENCING COMM’N 

2015).

40 U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 cmt. 1(A) (U.S. SENTENCING 

COMM’N 2015).

41 See Smith, 822 F.3d at 763-64 (forcing victims to move from one area of a bank to 

another to aid in stealing money was “abduction” for the purposes of the Guidelines); United 

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have also indicated that the term “different location” should be interpreted 

with flexibility.42 We are satisfied that the conspirators forcing T-Mobile 

employees to move from the front of the stores to the backs was sufficient to 

make the abduction enhancement applicable.43

VI.

THE RESTITUTION AWARD

Buck claims that his restitution obligation should be allocated to other 

parties, including cooperating witnesses Deandre White and Trent Davis, and 

to Rafey Khan and Zeeshan Yasin, two individuals who profited by purchasing 

the stolen items.

A. Standard of Review

We review whether a restitution award is “permitted by the appropriate 

law” de novo.44 We review “the propriety of a particular award for an abuse of 

discretion.”45

B. Analysis

The district court ordered Buck to pay $789,271.74 in restitution to the 

robbery victims. That court’s judgment specified that Buck’s obligation was 

“joint and several with any co-defendant who has been or will be ordered to pay 

restitution.” Co-defendant Allen was also held responsible for the full amount 

of restitution, and co-defendant Donald Holmes was held responsible for a 

portion of the restitution. However, White, Davis, Khan, and Yasin, were not 

 

States v. Hawkins, 87 F.3d 722, 727-28 (5th Cir. 1996) (finding that forcing victims to move 

50 to 60 feet in the same parking area was “abduction” for the purposes of the Guidelines). 

42 United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010). 43 Buck also contends that the term “location” and its use in the Sentencing Guidelines 

is ambiguous. He asserts that the rule of lenity should be applied and his sentence vacated. 

However, as used in the Guidelines, this term does not have the kind of “grievous ambiguity” 

that implicates the rule of lenity. See Muscarello v. United States, 524 U.S. 125, 139 (1998).

Buck’s argument that the term “location” is ambiguous must fail. 

44 United States v. Sheets, 814 F.3d 256, 259 (5th Cir. 2016).

45 Id.

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convicted of the robberies that gave rise to this restitution. White was an 

unindicted co-conspirator. Davis, Khan, and Yasin were named in the original 

indictment as Hobbs Act co-conspirators, but they ultimately entered pleas of 

guilty to different offenses. T-Mobile and the jewelry store were “directly and 

proximately harmed as a result of the commission” of the Hobbs Act robberies, 

not the crimes for which those witnesses were convicted.46 The district court 

thus lacked the authority to make those parties jointly and severally liable for 

the restitution obligation.47 The district court did not abuse its discretion in 

not holding White, Davis, Khan, or Yasin, jointly and severally liable for the 

restitution award in this case, so Buck’s objection fails. 

VII.

ALLEN’S SENTENCE AND THE EIGHTH AMENDMENT

Allen argues that his 119-year sentence violates the Eighth Amendment 

because it is effectively a life sentence which is reserved for only the most 

“existential” crimes. He also insists that his sentences should run concurrently.

A. Standard of Review

The Eighth Amendment prohibits cruel and unusual punishment.48 We 

review an Eighth Amendment challenge to the constitutionality of a sentence 

de novo.49

B. Analysis

To reach Allen’s 119-year sentence, the district court imposed terms of 

151 months for each of his six robbery convictions under the Hobbs Act, then

 

46 Sheets, 814 F.3d at 258 n.3. White was convicted of the unrelated offense of 

conspiring to possess with intent to distribute more than five kilograms of cocaine. Davis was 

convicted of an unrelated robbery. Khan and Yasin were convicted of misprision of a felony, 

in violation of 18 U.S.C. § 4, for failing to report the T-Mobile robberies. 

47 See 18 U.S.C. §§ 3663A(a)(2); 3664(f)(1)(A). 

48 U.S. CONST. amend VIII.

49 United States v. King, 773 F.3d 48, 52 (5th Cir. 2014).

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added a series of consecutive terms for the use of firearms during the robberies, 

as required by 18 U.S.C. § 924(c)(1). Section 924(c) mandates a minimum 

sentence of seven years of imprisonment when a defendant brandishes a 

firearm during and in relation to a crime of violence.50 Section 924(c)(1)(D)(ii) 

requires that those seven years run consecutively to the prison term for the 

underlying crime of violence.51 Section 924(c)(1)(C)(i) imposes additional 

consecutive terms of 25 years for every “second or subsequent conviction 

under” the statute.52 This includes instances when the first and subsequent 

convictions occur in a “single proceeding.”53 Allen’s sentence is thus within the 

statutory guidelines applicable to his case. 

A sentence imposed within statutory limits may nevertheless violate the 

Eighth Amendment if it “is so disproportionate to the crime committed that it 

shocks human sensibilities.”54 We conclude that this sentence does not shock 

human sensibilities and is consistent with other decisions in this court.55 The 

length of Allen’s sentence is not unconstitutional. 

VIII.

ALLEN’S STATEMENTS TO GOVERNMENT WITNESSES

Finally, Allen urges that admission of the statements he made while he 

was in jail with a government witness, Son-Tanna Hewitt, deprived him of a 

fair trial. 

 

50 18 U.S.C. § 924(c)(1)(A)(ii). 

51 18 U.S.C. § 924(c)(1)(D)(ii). 

52 18 U.S.C. § 924(c)(1)(C)(i).

53 See Deal v. United States, 508 U.S. 129, 131 (1993).

54 Yeager v. Estelle, 489 F.2d 276, 276-77 (5th Cir. 1973).

55 In United States v. Thomas, the defendant was convicted of five robberies, each with 

a firearm, and was sentenced to 1,435 months’ imprisonment. 627 F.3d 146, 159-60 (5th Cir. 

2010). We held that the “sentence was not grossly disproportionate to the offenses he 

committed.” Id. at 160.

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A. Standard of Review

We review preserved challenges to the admission of evidence for abuse 

of discretion.56

B. Analysis

Hewitt was not involved in the November robberies; he was only involved 

in the July robbery, to which Allen asserts he had no connection.57 Allen alleges 

that three months after Hewitt entered into a deal with the government he

was placed in the same segregation unit as Allen. Hewitt was called by the 

government and testified as to Allen’s jailhouse admissions to having 

committed each element of the crimes.

Allen argues that the use of Hewitt’s jailhouse testimony is essentially 

an ambush by the prosecution because “confessions” are exempt from 

disclosure under Rule 16. Allen insists that, but for Hewitt’s testimony, he

would have been acquitted because the only other evidence against him was “a 

murky video and three highly discreditable witnesses.”

The Supreme Court has repeatedly held that introduction of a 

defendant’s statement to a cellmate does not violate the Sixth Amendment 

right to counsel.58 Jailhouse snitches are not inherently unreliable.59

Defendants are entitled to confront and cross-examine such witnesses to 

discredit them, and Allen was afforded that right.60 In addition, the district 

court instructed this jury that testimony of cooperating accomplice witnesses 

 

56 See United States v. Hefferon, 314 F.3d 211, 222 (5th Cir. 2002). Allen objected to 

the testimony in question in a pretrial motion and renewed his motion at trial. 

57 Five of the robberies that form the basis of this case occurred in November 2012. 

One occurred in July 2013. 

58 Kansas v. Ventris, 556 U.S. 586, 591-92 (2009). 

59 Id. at 594 n.*.

60 See Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012). 

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“is always to be received with caution and weighed with great care.” The 

district court did not abuse its discretion in allowing Hewitt to testify.

IX.

CONCLUSION

For the foregoing reasons, we AFFIRM all convictions of Buck and Allen 

as well as the sentences imposed by the district court.

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