from the United States District Court for the Northern
District of Texas
SMITH, PRADO, and GRAVES, Circuit Judges.
C. PRADO, Circuit Judge.
Shakur Garcia pleaded guilty to one count of Hobbs Act
robbery and one count of possessing and discharging a firearm
in furtherance of a crime of violence. In calculating
Garcia's sentence for the Hobbs Act robbery count, the
district court applied a sentencing enhancement based on the
assessment that Garcia and his codefendants had physically
restrained the victims. Garcia contends that this sentencing
enhancement was improper. Garcia also claims that his firearm
conviction is invalid because the statute of conviction is
unconstitutionally vague and therefore violates his due
process rights. We AFFIRM Garcia's firearm conviction,
VACATE his sentence for the Hobbs Act robbery count, and
REMAND for resentencing.
October 2015, Garcia and two other defendants entered a gun
store in Lubbock, Texas, wearing ski masks and carrying
firearms. One of the defendants held a handgun to a store
employee's head and demanded that the employee get down
on the floor. Due to physical limitations, however, the
employee was unable to comply. Meanwhile, another defendant
stood near the door holding a firearm, and a third defendant
smashed a glass display case that contained firearms. One of
the store's employees was in a back room when he heard
glass break. This second employee then rushed to the front of
the store, took cover behind a display case, and loaded a
pistol. Shortly thereafter, the second employee heard two
rounds of shots fired and felt a sharp pain in his ankle.
After realizing he had been shot, the employee stood and
fired at the defendants. A brief exchange of gunfire ensued.
The defendants then fled the scene with nine stolen firearms,
while the employee continued to fire at them.
later pleaded guilty to one count of Hobbs Act robbery under
18 U.S.C. § 1951(a) and one count of possessing and
discharging a firearm in furtherance of a crime of violence
under 18 U.S.C. § 924(c). Garcia did not waive his right
to appeal. A presentence investigation report
("PSR") calculated Garcia's sentencing range
under the 2015 edition of the U.S. Sentencing Guidelines
Commission Manual (the "Guidelines"). The PSR
recommended a range of 51 to 63 months for the Hobbs Act
robbery count, which included a two-level enhancement for
physical restraint of a victim under U.S.S.G. §
2B3.1(b)(4)(B). The PSR also recommended imposing the
statutory minimum sentence of 120 months for the firearm
government-joined by the defense-objected to the physical
restraint enhancement, contending that binding Fifth Circuit
precedent "likely precludes application of the physical
restraint enhancement under this set of facts." The
government's objection relied on United States v.
Hickman, 151 F.3d 446, 460-61 (5th Cir. 1998),
unanimously approved of in relevant part on reh'g en
banc, 179 F.3d 230 (5th Cir. 1999), a case in which we
held that the district court erred in imposing a physical
restraint enhancement. The probation office then prepared an
addendum to the PSR, which took the position that the
physical restraint enhancement was properly applied. The
addendum noted that a few facts distinguished Garcia's
case from Hickman: a defendant in the instant case
held a gun to the head of a victim and ordered the victim to
get on the ground; one of the defendants stood near the exit
while holding a firearm; and gunfire was exchanged. Garcia
and the government maintained their objections to the
enhancement during the sentencing hearing.
district court adopted the PSR addendum's reasoning and
overruled the objections to the sentencing enhancement. The
district court then imposed a sentence of 51 months'
imprisonment for the Hobbs Act robbery count and 120
months' imprisonment for the firearm count, to be served
consecutively. This appeal followed. On appeal, Garcia claims
that (A) his conviction under 18 U.S.C. § 924(c) is
invalid and (B) the physical restraint enhancement was
Conviction for Possessing a Firearm
argues that we should reverse his conviction under 18 U.S.C.
§ 924(c)(1)(A) for possessing, brandishing, or
discharging a firearm "during and in relation to any
crime of violence." The term "crime of
violence" is defined as any felony that:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...