UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4035

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENTRELL DONTA BRAYBOY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:15-cr-00262-F-1)

Submitted: December 19, 2019 Decided: January 9, 2020

Before MOTZ, KEENAN, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dhamian Blue, BLUE LLP, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kentrell Donta Brayboy appeals following his guilty plea to three counts of aiding

and abetting Hobbs Act robbery, in violation of

, 1951 (2018); discharging

a firearm in furtherance of a crime of violence (aiding and abetting Hobbs Act Robbery),

in violation of

, 924(c) (2018); and two counts of Hobbs Act robbery, in

violation of

. On appeal, Brayboy contends that aiding and abetting

Hobbs Act robbery is not a crime of violence under § 924(c). We affirm.

We normally “review de novo the question whether an offense qualifies as a crime

of violence.” United States v. Mathis,

(4th Cir. 2019), cert. denied, No.

19-6423,

(U.S. Dec. 9, 2019), and cert. denied, No. 19-6424,

(U.S. Dec. 9, 2019). Brayboy, however, never argued in the district court that

aiding and abetting Hobbs Act robbery does not qualify as a crime of violence. “To

preserve an argument on appeal, the defendant must object on the same basis below as he

contends is error on appeal.” United States v. Westbrooks,

(4th Cir.

2015) (internal quotation marks omitted). Therefore, we review Brayboy’s argument for

plain error. To prevail under the plain error standard, Brayboy “must show (1) an error

that (2) was clear or obvious, (3) affects substantial rights, and (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v. Walker,

(4th Cir. 2019) (alteration and internal quotation marks omitted).

A crime of violence for § 924(c) purposes is defined as:

an offense that is a felony and . . . (A) has an element the use, attempted use, or threatened use of physical force against the person or property of another [(the “force clause”)], or (B) that[,] by its nature, involves a substantial risk

2 that physical force against the person or property of another may be used in the course of committing the offense [(the “residual clause”)].

(c)(3). We have held that the residual clause is unconstitutionally vague.

United States v. Simms,

(4th Cir.) (en banc), cert. denied,

(2019); accord United States v. Davis,

(2019). We have also held

that Hobbs Act robbery qualifies as a crime of violence under the force clause. Mathis,

. While we did not address aiding and abetting liability in Mathis, every

circuit to have considered Brayboy’s argument has rejected it. See United States v.

McKelvey,

, 75 (3d Cir. 2019); United States v. Grissom,

, 454 (7th Cir. 2019); United States v. Richardson,

(6th Cir. 2018),

vacated on other grounds,

(2019); United States v. García-Ortiz,

(1st Cir. 2018), cert. denied,

(2019); United States v.

Deiter,

(10th Cir.), cert. denied,

(2018); In re Colon,

(11th Cir. 2016). Accordingly, Brayboy cannot demonstrate plain

error. See United States v. Harris,

(4th Cir. 2018) (“At a minimum,

courts of appeals cannot correct an error pursuant to plain error review unless the error is

clear under current law.” (alterations and internal quotation marks omitted)); United States

v. Rouse,

(4th Cir. 2004) (recognizing, in absence of Supreme Court or

Fourth Circuit authority, “decisions by other circuit courts of appeals are pertinent to the

question of whether an error is plain” (internal quotation marks omitted)).

3 We therefore 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

4