UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-4422

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER LAMONT STEWARD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Arenda L. Wright Allen, District Judge. (4:14-cr-00075-AWA-TEM-1)

Submitted: October 21, 2019 Decided: December 17, 2019

Before WYNN and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Alexandria, Virginia, Keith Loren Kimball, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

After a jury trial, Christopher Lamont Steward was convicted of conspiracy to

commit Hobbs Act robbery, in violation of

(a) (2012), Hobbs Act robbery

and aiding and abetting such conduct, in violation of

(a), 2 (2012), and

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

aiding and abetting such conduct, in violation of

(c)(1)(A)(ii), 2 (2012).

Steward argues that his § 924(c) firearm conviction is no longer valid because the

underlying convictions, conspiracy to commit Hobbs Act robbery and the robbery, are not

crimes of violence as defined by

(c)(3)(A), (B) (2012). Steward further

argues that the district court erred by granting the Government’s motion in limine and

preventing Steward from presenting hearsay evidence that his coconspirator stated that he

used a BB gun during the robbery. We affirm.

After Steward’s convictions, this court found that conspiracy to commit Hobbs Act

robbery is not a crime of violence. United States v. Simms,

(4th Cir.

2019) (en banc), cert. denied,

(U.S. Oct. 7, 2019) (No. 18-1338). Also,

the Supreme Court ruled that § 924(c)(3)(B), otherwise known as the residual clause, is

unconstitutionally vague. United States v. Davis,

(2019). Steward

argues that the district court erred by instructing the jury that both the Hobbs Act robbery

conspiracy and the Hobbs Act robbery are crimes of violence, and that the jury could find

Steward guilty of the § 924(c) charge based on the conspiracy charge or the robbery charge.

Because Steward did not raise this issue before the district court, review is for plain

error. United States v. McNeal,

(4th Cir. 2016). “To satisfy that

2 standard, a defendant must show (1) that an error was made; (2) that the error was plain;

and (3) that the error affected his substantial rights. Even if those three prongs are satisfied,

we will correct a plain error only when necessary to prevent a miscarriage of justice or to

ensure the fairness, integrity or public reputation of judicial proceedings.”

(citations

and internal quotation marks omitted). A plain error affects substantial rights if there is a

“reasonable probability that, but for the error, the outcome of the proceeding would have

been different.” Molina-Martinez v. United States,

(2016) (internal

quotation marks omitted). “[T]he defendant bears the burden of satisfying each of the

elements of the plain error standard.” United States v. Massenburg,

(4th

Cir. 2009).

While there was plain error in this instance because the jury was instructed that it

could consider the conspiracy offense as the predicate crime of violence to the § 924(c)

charge, we conclude that Steward fails to show that the error affected his substantial rights.

Steward was also found guilty of aiding and abetting in the Hobbs Act robbery, a crime of

violence, and the jury was instructed that it could consider that offense as the predicate

crime of violence in support of the § 924(c) charge. United States v. Mathis,

(4th Cir. 2019) (holding that Hobbs Act robbery is a crime of violence under

§ 924(c)(3)(A)). The conspiracy offense and the robbery offense are coextensive, and the

conspiracy offense related solely to the robbery offense. Because there is no reasonable

probability that the result of the proceeding would have been different had the conspiracy

offense not been listed as an underlying crime of violence to the § 924(c) charge, we

conclude that there is no reason to vacate the § 924(c) conviction.

3 Steward also argues that the district court erred by granting the Government’s

motion in limine and preventing Steward from presenting a hearsay statement by one of

his coconspirators. We review evidentiary rulings for abuse of discretion. United States v.

Perkins,

(4th Cir. 2006). Hearsay is generally inadmissible. Fed. R.

Evid. 802. However, Fed. R. Evid. 804(b)(3) provides an exception to the rule when an

unavailable declarant has made a statement against interest. A statement against interest is

one that “was so contrary to the declarant’s proprietary or pecuniary interest or had so great

a tendency to invalidate the declarant’s claim against someone else or to expose the

declarant to civil or criminal liability.” Fed. R. Evid. 804(b)(3)(A). A statement is

admissible under this exception if: (1) the speaker is unavailable; (2) the statement is

actually adverse to the speaker’s penal interest; and (3) “corroborating circumstances

clearly indicate the trustworthiness of the statement.” United States v. Bumpass,

(4th Cir. 1995) (internal quotation marks omitted). The party seeking to

introduce the statement has the “formidable burden” of establishing these prerequisites.

United States v. Blake,

(4th Cir. 2009) (internal quotation marks

omitted).

It is undisputed that the declarant was unavailable, having asserted his constitutional

right against self-incrimination. See Fed. R. Evid. 804(a)(1); United States v. Brainard,

(4th Cir. 1982). Steward argues that the declarant’s statement that

he possessed a BB gun was admissible as a hearsay statement against the declarant’s penal

interest because the declarant admitted participating in the robbery. Whether a statement

is truly against the declarant’s penal interest can only be determined in light of all the

4 surrounding circumstances. Williamson v. United States,

(1994).

“The fact that a person is making a broadly self-inculpatory confession does not make more

credible the confession’s non-self-inculpatory parts. One of the most effective ways to lie

is to mix falsehood with truth, especially truth that seems particularly persuasive because

of its self-inculpatory nature.”

. The Supreme Court ruled that only those

portions of the narrative that are inculpatory are admissible, stating that “the most faithful

reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory

statements, even if they are made within a broader narrative that is generally self-

inculpatory.”

. Here, the declarant’s statement that he used a BB gun, if true,

was exculpatory because it reduced his exposure to a § 924(c) charge. The declarant was

aware of the possibility that he faced a separate sentence based on possessing a firearm. It

is reasonable to assume that, while confessing to the robbery, the declarant would attempt

to absolve himself of further criminal conduct. Therefore, we conclude that the district

court did not abuse its discretion.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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