UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4220


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

CHARLES ELOYS JOHNSON, a/k/a Adam White,

                    Defendant - Appellant.


Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:15-cr-00386-RMG-1)


Submitted: September 11, 2020                              Decided: September 21, 2020


Before WILKINSON and MOTZ, Circuit Judges, and Kenneth D. BELL, United States
District Judge for the Western District of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


David Alan Brown, Sr., Rock Hill, South Carolina, for Appellant. Peter M. McCoy, Jr.,
United States Attorney, Columbia, South Carolina, Nathan S. Williams, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A jury convicted Charles Eloys Johnson of two counts of Hobbs Act robbery and

one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951,

and two counts of possession of a firearm in furtherance of a crime of violence, in violation

of 18 U.S.C. § 924(c). Johnson appeals, and for the reasons that follow, we affirm.



                                             I.

       This case arises from the commission of a pair of jewelry store robberies in South

Carolina — one in Columbia and another in Charleston. In each robbery, two masked men

entered the store (one carrying and brandishing a gun and the other carrying a hammer),

smashed glass display cases, and took Rolex watches; two additional men waited in a

getaway car.

       The Government contends that Johnson served as the ringleader in both robberies.

At trial, security camera footage and witness testimony showed that Johnson purchased the

getaway cars, and testimony from a cooperating witness and cell phone data indicated that

Johnson recruited and communicated with his co-conspirators. Additionally, cell tower

data showed that Johnson’s cell phone travelled to and from Charleston and Columbia

consistent with the timing of the robberies. Although no evidence identified Johnson as

one of the masked men who entered the stores, the Government maintained that Johnson

was one of the individuals in the getaway cars.

       At the conclusion of the evidence, the district court instructed the jury that both

Hobbs Act robbery and conspiracy to commit Hobbs Act robbery constitute crimes of

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violence under § 924(c). The court also instructed the jury that Johnson could be found

guilty of violating § 924(c) under an aiding-and-abetting theory as long as he had “advance

knowledge that a confederate would possess a firearm in furtherance of the robbery,” and

that Johnson could be found guilty under a co-conspirator, or Pinkerton, theory as long as

it was “reasonably foreseeable to [him] that a firearm would be used in furtherance of the

conspiracy to commit robbery.” Johnson did not object to the jury instructions.

       The jury returned a verdict of guilty on all counts. The general verdict form did not

specify which predicate offense the jury relied on for the § 924(c) convictions, nor did it

specify whether it found Johnson guilty of violating § 924(c) as a principal, aider and

abettor, or co-conspirator. The district court sentenced Johnson to imprisonment for 384

months and one day. He noted this timely appeal.



                                            II.

       Johnson principally argues that the district court committed reversible error in its

jury instructions. * He contends that the district court erred in instructing the jury that

Hobbs Act conspiracy constitutes a crime of violence. For this reason, Johnson maintains




       *
         Johnson makes two additional claims. First, he raises an ineffective assistance of
counsel claim. On direct appeal he must demonstrate that the record “conclusively shows
ineffective assistance,” United States v. Williams, 

, 871 (4th Cir. 1992), which
he has failed to do. Second, Johnson argues that we must vacate his sentence in light of
the First Step Act’s recent amendment of § 924(c). However, the First Step Act does not
apply to Johnson’s sentence, which was imposed on April 10, 2017, more than a year before
the enactment of the First Step Act on December 21, 2018. See Pub. L. No. 115-391
§ 403(b), 132 Stat. 5194, 5222.
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that his convictions for possessing a firearm in furtherance of a crime of violence, in

violation of 18 U.S.C. § 924(c), are invalid.

       Because Johnson did not object to the jury instructions, we review them for plain

error. See Fed. R. Crim. P. 52(b); United States v. Olano, 

, 731 (1993). To

obtain reversal on plain error review, a defendant must show that “(1) an error was made;

(2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Ramirez-Castillo, 

, 212 (4th Cir. 2014).

       Johnson has met his burden of showing that the district court committed an “error”

that is “plain.” An error is plain if, “at the time of appellate consideration, the settled law

of the Supreme Court or this circuit establishes that an error has occurred.” United States

v. Walker, 

, 378 (4th Cir. 2019) (quotation marks omitted). In United States

v. Davis, 

(2019), the Supreme Court struck down the residual clause of

§ 924(c) as unconstitutionally vague.

And in United States v. Simms, 

(4th Cir. 2019) (en banc), we held that conspiracy to commit Hobbs Act robbery does

not constitute a crime of violence.

The district court thus plainly erred in its

Hobbs Act conspiracy instruction.

       Johnson, however, cannot establish that this error “affects [his] substantial rights,”

, because the jury could have based the firearms

convictions not on conspiracy to commit robbery, but on Hobbs Act robbery charges,

which do constitute valid § 924(c) predicates. See United States v. Mathis, 

,

266 (4th Cir. 2019). Johnson argues that the latter convictions do not provide valid

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predicates because the jury could have convicted him under a co-conspirator, or Pinkerton,

theory, which he believes Simms, 

, foreclosed. This argument confuses the

offense of Hobbs Act conspiracy with the co-conspirator theory of liability for Hobbs Act

robbery. Under the Pinkerton doctrine, “a defendant is liable for substantive offenses

committed by a co-conspirator when their commission is reasonably foreseeable and in

furtherance of the conspiracy.” United States v. Blackman, 

, 141 (4th Cir.

2014) (quotation marks omitted). This theory of liability “merely represents an alternative

form of vicarious liability,”

long-held that “a co-conspirator’s § 924(c)(1)

violation may be imputed to other members of the conspiracy . . . under the Pinkerton

conspiracy doctrine.” United States v. Cummings, 

, 944 (4th Cir. 1991);

accord United States v. Hare, 

, 105 (4th Cir. 2016). It is of no moment in this

case that the offense of conspiracy to commit Hobbs Act robbery is an invalid § 924(c)

predicate following Simms, because the Pinkerton theory of liability for Hobbs Act robbery

remains a valid § 924(c) predicate.

       Johnson also maintains that there was insufficient evidence to instruct the jury that

he could be found guilty of violating § 924(c) as a principal or as an aider and abettor.

Even if the Government did present insufficient evidence and the instruction were error (a

question we do not reach), this argument also fails. This is so because the jury was

“properly instructed on Pinkerton liability and the evidence amply demonstrate[d] that it

was reasonably foreseeable to [Johnson] that a co-conspirator would possess a firearm” —

which Johnson does not contest — and so “any error in the aiding and abetting instruction

does not satisfy the plain error standard.” 

. By the same token, any

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error in the principal instruction would also not satisfy the plain error standard. United

States v. Robinson, 

, 956 (4th Cir. 2010).

       Accordingly, notwithstanding the district court’s error in instructing the jury that

Hobbs Act conspiracy is a crime of violence, the judgment of the district court is

                                                                              AFFIRMED.




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