United States v. Nickless Whitson
664 F. App'x 503
| 6th Cir. | 2016Background
- In 2011 Nickless Whitson participated in two armed robberies targeting suspected drug dealers: one at a LaVergne residence (seeking cocaine/cash) and one at the Elmwood residence (seeking marijuana/proceeds).
- During the LaVergne robbery co-conspirators tied up and assaulted a resident; they found two guns and jewelry. Whitson acted as an armed lookout.
- During the Elmwood robbery the robbers bound and threatened occupants; a co-conspirator shot a resident; the group fled with grow lights, guns, and a vehicle. Whitson participated and was armed.
- The jury convicted Whitson on eight counts: two Hobbs Act conspiracy counts, two drug conspiracy counts, and four § 924(c) firearm counts (two connected to each robbery/drug conspiracy set). The district court sentenced him to 1,252 months.
- On appeal Whitson challenged: sufficiency of the Hobbs Act interstate-commerce showing; need for a realistic-probability jury instruction; whether there were two separate conspiracies; vagueness of § 924(c)(3)(B); and asserted double jeopardy attached to multiple § 924(c) convictions arising from the same use of a firearm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hobbs Act convictions satisfied interstate-commerce element | Whitson: robberies of private residences lacked realistic probability of affecting interstate commerce | Government: stealing drugs or drug proceeds suffices under Taylor and Raich | Court: Affirmed government — proving attempted theft of drugs/drug proceeds satisfies commerce element under Taylor |
| Whether jury should have gotten a realistic-probability commerce instruction | Whitson: requested instruction because targets were private residences, so government must show realistic probability | Government: Taylor controls; no such instruction required | Court: Rejected instruction as incorrect; Taylor requires only proof of attempted theft of drugs/proceeds |
| Whether there were two separate conspiracies (Hobbs Act and drug conspiracies) | Whitson: single extended conspiracy covering both robberies | Government: two distinct conspiracies (different actors, planning, locations, timing) | Court: Affirmed two separate conspiracies under the totality-of-the-circumstances test (time, persons, places, nature of acts) |
| Whether multiple § 924(c) convictions violate double jeopardy | Whitson: multiple § 924(c) counts from single use of firearm during each robbery violate double jeopardy | Government: conceded error consistent with precedent | Held: Vacated two § 924(c) convictions (one per robbery set) and remanded for revised judgment/sentence |
| Whether § 924(c)(3)(B) is unconstitutionally vague | Whitson: § 924(c)(3)(B) vague post-Johnson | Government: firearm counts for drug conspiracies did not rely on that clause; circuit precedent rejects vagueness challenge | Court: Rejected vagueness challenge; two firearm counts tied to drug offenses unaffected |
Key Cases Cited
- Taylor v. United States, 136 S. Ct. 2074 (2016) (holding that stealing or attempting to steal drugs or drug proceeds satisfies Hobbs Act commerce element)
- Gonzales v. Raich, 545 U.S. 1 (2005) (federal regulation of intrastate drug activity can be within commerce power)
- United States v. Vichitvongsa, 819 F.3d 260 (6th Cir. 2016) (addressing overlap of conspiracies and § 924(c) double jeopardy issue)
- United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (rejecting vagueness challenge to § 924(c)(3)(B))
- United States v. Conyers, [citation="603 F. App'x 462"] (6th Cir. 2015) (applying commerce-element principles in drug-robbery context)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (vagueness precedent referenced in § 924(c) challenges)