author: E. GRADY JOLLY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. George William JARMAN, Defendant-Appellant
    No. 16-30468
    United States Court of Appeals, Fifth Circuit.
    Filed February 1, 2017

      Jenny Clare Ellickson, Trial Attorney, U.S. Department of Justice, Criminal Division, Keith Becker, U.S. Department of Justice, Child Exploitation & Obscenity Section, Washington, DC, for Plaintiff-Ap-pellee.
    Michael Reese Davis, Sr., Tim Paul Hartdegen, Hymel Davis & Petersen, L.L.C., Baton Rouge, LA, for Defendant-Appellant.
    Before JOLLY, SMITH, and PRADO, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

George Jarman conditionally pleaded guilty to the receipt and attempted receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1). He challenges the district court’s denial of both his motion to suppress evidence obtained in the search of his home and his motion for reconsideration. He contends that the district court erred because: (1) it should not have applied the good faith exception to the exclusionary rule; (2) the search-warrant affidavit for his home does not establish probable cause; and (3) the Government’s delay in searching the computers seized from his home violated the Fourth Amendment and Federal Rule of Criminal Procedure 41. Because the good faith exception applies and the Government’s post-seizure delay did not violate the Fourth Amendment, we AFFIRM.

I.

The FBI began investigating Jarman when Jason Collins, the co-owner of a computer repair store, called FBI Special Agent (“SA”) Larry Jones in November 2007. Collins told SA Jones that he suspected one of his customers had child pornography on his hard drive. He said that the customer had purchased a new computer and asked him to transfer the data from an old computer’s hard drive onto it and to wipe the old hard drive clean. Collins’s part-time employee, Charlie Wilson, performed the transfer at the customer’s home. During the transfer, Wilson, who could see the file names, but not the actual files being copied, noticed file names which appeared to indicate child pornography. Wilson told Collins what he had seen, and Collins asked Wilson to bring the old hard drive back to the store.

Collins inspected that hard drive, finding several file names suggestive of child pornography that he could not open and a video file in the root directory depicting a male performing anal sex on a prepubescent male child. Collins did not tell SA Jones the names of any of the alleged child pornography computer files. But he told SA Jones that he did not believe that the video file had been transferred to the new computer because it was on the hard drive’s root directory. At the end of the interview, SA Jones asked Collins to keep the customer’s hard drive until the FBI contacted him.

SA Jones requested that an investigation be opened into the allegations, and SA Thomas Tedder was assigned the case. Shortly thereafter, SA Tedder began collaborating with Department of Justice (“DOJ”) áttorneys on the case.

In January 2008, SA Tedder re-interviewed Collins. Collins gave SA Tedder the customer’s hard drive and told him generally the same story he told SA Jones. This time, however, Collins identified the customer as Jarman. He also provided more detail about the video file he had seen. When he went through the hard drive, Collins explained, he selected one suspected file and copied it to his computer to view. That file contained a grainy image of an adult male sodomizing a pre-pubes-cent child whom Collins believed to be under the age of twelve. After viewing that file, Collins stopped looking at the drive and contacted the FBI. Notably, Collins now claimed that he believed that Wilson copied all of the old data — including the possible child pornography — to Jarman’s new computer, even though he had previously stated that the video file containing possible child pornography was not transferred to the new computer. SA Tedder testified that he asked Collins about this inconsistency and that Collins stood by his new conclusion.

By March 2008, DOJ prosecutor Michael Yoon and SA Tedder had begun drafting a search-warrant affidavit for Jarman’s home. While Yoon did most of the drafting, SA Tedder corrected misunderstandings of fact and revised language at least once.

As of late March 2008, SA Tedder was aware of two investigations by U.S. Immigration and Customs Enforcement (“ICE”) that implicated Jarman. In the first investigation, which concerned the child pornography site “illegaLCP,” ICE obtained Jar-man’s email address when it acquired the email addresses of those who had- purchased access to the website. In the second investigation, which concerned the child pornography site “Home Collection,” ICE determined that Jarman purchased subscriptions to three child pornography sites in seven transactions from October 2006 to January 2007.

SA Tedder testified that he talked to ICE agents about these investigations and reviewed all of the relevant evidence to ensure that the screen captures ICE took from these websites were of prepubescent children and that Jarman was, in fact, the person identified in the investigations. Moreover, he served a subpoena on Cox Cornmunications to confirm that the email address that ICE tied to Jarman’s home was an active account belonging to Jar-man. However, SA Tedder testified that he did not have any direct knowledge that Jarman actually downloaded files from these child pornography sites when drafting the search-warrant affidavit.

In December 2008, SA Tedder submitted a search-warrant affidavit for Jarman’s home. A magistrate judge signed the search warrant on December 5th. Three days later, the FBI executed the warrant, seizing several hard drives and computers from Jarman’s home.

Because Jarman was an attorney, the FBI used a “taint process” to review the seized data. In this process, a “taint team,” which consisted of a DOJ attorney and a FBI computer expert, initially screened the seized data for any potentially privileged material before turning it over to the prosecution team. The taint team reported the results of their review on August 6, 2009. '

The prosecution team received the hard drives and computers from the taint team on September 2, 2009, and July 9, 2010, and the Computer Analysis Response Team (“CART”) began its forensic examination. CART completed its examination on November 5, 2010, and reported that it found “sexually explicit images and videos of minors on the computer hardware.”

A grand jury subsequently charged Jar-man with, among other things, the receipt and attempted receipt of child pornography (“Count 1”).

In September 2013, Jarman moved to suppress the fruits of the search of his home and for a Franks hearing, arguing that SA Tedder’s affidavit did not establish probable cause, omitted material information, and contained misrepresentations and unreliable information. The district court held a Franks hearing in April 2014. Jar-man then sought, and was granted, additional discovery because, the court found, there were material inconsistencies between SA Tedder’s testimony and his draft affidavits.

In October 2014, the district court denied Jarman’s motion to suppress. Because of the effect of the passage of time on one’s memory, the court found, SA Ted-der’s incorrect statements at the Franks hearing were not deliberate. Moreover, the Government’s actions did not give rise to a reckless disregard for the truth. Consequently, the court held that, although the “investigation may have been less than ideal,” “the good faith .exception [to the exclusionary rule] applies.”

Jarman promptly moved for reconsideration and for a second Franks hearing. The district court granted a second Franks hearing in May 2015. But, in August 2015, the court denied the motion for reconsideration on the ground that the good faith exception still applied. Although it “remain[ed] uncomfortable with the [GJovernment’s conduct,” the court still did “not believe that Jarman ha[d] established that [SA] Tedder’s conduct was in bad faith.”

Jarman then conditionally pleaded guilty to Count 1 of the indictment, reserving the right to appeal the denial of his motions to suppress the evidence found in the search of his home.

Now on appeal, Jarman asserts that the district court erred by denying his motions to suppress and for reconsideration because: (1) the good faith exception is inapplicable; (2) SA Tedder’s affidavit does not establish probable cause; and (3) the Government’s delay in searching the data from his home violated the Fourth Amendment and Federal Rule of Criminal Procedure 41.

II.

This Court reviews the “[flactual findings in a ruling on a motion to suppress ... for clear error” and questions of law de novo. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015) (citation omitted). “The clearly erroneous standard is particularly deferential where, as here, denial of a suppression motion is based on live oral testimony ... because the judge had the opportunity to observe the demeanor of the witnesses.” United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014) (citation omitted). But “the constitutionality of law enforcement action” and the “determination of the reasonableness of a law enforcement officer’s reliance upon a warrant issued by a magistrate ... for purposes of determining the applicability of the good-faith exception to the exclusionary rule” are questions of law that are reviewed de novo. United States v. Cherna, 184 F.3d 403, 406-07 (5th Cir. 1999). Nevertheless, “[t]he evidence is viewed in the light most favorable to the prevailing party, here,” the Government. Moore, 805 F.3d at 593 (citation omitted).

This Court “generally review[s] the denial of a motion to reconsider for abuse of discretion.” United States v. Rabhan, 540 F.3d 344, 346 (5th Cir. 2008) (citation omitted).

We hold that the district court did not err in denying suppression of the evidence the Government seized from Jarman’s home because: (1) Jarman failed to carry his burden to show that the good faith exception does not apply; and (2) Jarman was not entitled to suppression based on the Government’s delay in completing its search of the evidence because: (a) Jarman waived the claim that the Government violated Rule 41; and (b) the Government did not violate the Fourth Amendment because it acted reasonably under the circumstances.

A.

We begin by considering whether the district court erred by applying the good faith exception. Moore, 805 F.3d at 593 (citation omitted).

The good faith exception bars the application of the exclusionary rule to exclude evidence obtained pursuant to a warrant if law enforcement officers act under an objectively reasonable, good faith belief that the search warrant in question is valid — even if it, in fact, is not. Robinson, 741 F.3d at 594 (citation omitted). But the good faith exception is not applicable if “the issuing-judge was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005) (citation omitted). “[T]he initial burden here is upon the defendant.” United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002). Here, in attempting to impeach the warrant, the defendant must establish: (1) “a knowing or reckless falsehood” by omission or commission; (2) “that without the falsehood there would not be sufficient matter in the affidavit to support the issuance of the warrant”; and that (3) “[t]he omitted material [is] ... dispositive, so that if the omitted fact were included, there would not be probable cause.” Robinson, 741 F.3d at 595 (citations omitted); United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000).

Jarman avers that the district court erred in holding that the good faith exception applies, challenging more than a dozen statements in and omissions from the search-warrant affidavit for his home. The Government, on the other hand, argues that the district court correctly held that the good faith exception applies because Jarman has not shown that any statements in the affidavit were knowingly or recklessly false. Moreover, the Government asserts, Jarman has not identified any material omissions from the affidavit, let alone any omissions constituting knowing or reckless falsehoods.

The district court heard all of the evidence and received extensive briefing. The court then found that Jarman failed to satisfy the requirements for attacking the good faith exception because, it determined, the Government and SA Tedder did not act in bad faith and the statements and omissions that Jarman calls material knowing or reckless falsehoods and omissions were neither deliberate nor made in reckless disregard for the truth. After hearing oral argument and studying the briefs, applicable parts of the record, and the relevant law, we can find no error in the district court’s application of the good faith exception. We especially recognize that the district court had the opportunity to observe witnesses. Robinson, 741 F.3d at 594 (citation omitted). Furthermore, evidence must be “viewed in the light most favorable to the” Government. See Moore, 805 F.3d at 593 (citation omitted). We thus uphold the application of the good faith exception to any defects alleged by Jar-man.

B.

We now turn to Jarman’s contention that the district court erred by rejecting his argument that the duration of the Government’s post-seizure review of his computer data requires the suppression of the seized evidence. The district court did not explicitly rule on this issue as it relates to the evidence that is the subject of the warrant. The court, however, necessarily, rejected this claim when it 'denied Jar-man’s motions to suppress. And “this court may ... independently review the record to determine whether the district court’s decision is supported by any reasonable review of the evidence.” United States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005) (citation omitted).

“The general touchstone of reasonableness which governs [the] Fourth Amendment analysis ... governs the method of execution of the warrant.” E.g., United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998). As “many circuits have recognized,” the Fourth Amendment “contain[s no] requirements about when the search or seizure is to occur or the duration.” United States v. Cote, 72 M.J. 41, 44 (C.A.A.F. 2013) (citation omitted); United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993). Courts have therefore consistently “permitted some delay in the execution of search warrants involving computers because of the complexity of the search” and they often restrict their “analysis of the delay in executing ... warrants [to] considering] only whether the delay rendered the warrants stale.” E.g., United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009); United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005).

Jarman contends that the district court erred by not granting suppression because the Government violated the Fourth Amendment and Federal Rule of Criminal Procedure 41 by taking twenty-three months to finish searching the data it seized. His overarching argument is that this delay was unreasonable.

The Government counters that Jarman is not entitled to suppression on this basis. Jarman, the Government asserts, waived the claim that its actions violated Rule 41. Moreover, the Government argues, it acted reasonably under the circumstances, and the only case Jarman relies upon, United States v. Metter, 860 F.Supp.2d 205 (E.D.N.Y. 2012), is distinguishable.

We hold that the district court did not err by not granting suppression based on the duration of the Government’s post-seizure review of the data it seized from Jarman’s home. First, Jarman waived the claim that the Government’s actions violated Rule 41 because he merely mentions the issue in a footnote with little or no argument. See United States v. Scroggins, 599 F.3d 433, 447-48 (5th Cir. 2010) (citation omitted) (summarizing this Court’s appellate briefing requirements).

Second, Jarman is not entitled to suppression under the Fourth Amendment because the duration of the Government’s review of the seized data was reasonable under the circumstances. The taint process here was designed to protect Jarman’s clients’ privileged information. Courts have recognized that, in such circumstances, it is appropriate to screen privileged information. See, e.g., Metter, 860 F.Supp.2d at 215. Moreover, the taint team review only took eight months. And the Government completed its forensic examination less than four months after it received the last of the hard drives and computers from the taint team. These periods are within the typical periods of delay in executing warrants that courts have permitted due to the complexity involved in searching computers. See, e.g., Syphers, 426 F.3d at 469.

Moreover, Jarman has not argued that the delay caused the warrant to become stale. Even if he had, “[n]umerous cases hold that a delay of several months” or even years “between the seizure of electronic evidence and the completion of the government’s review of [it] ... is reasonable” and does not render the warrant stale, especially in child-pornography cases. Metter, 860 F.Supp.2d at 215 (emphasis omitted).

Additionally, the one case Jarman relies upon — an out-of-circuit district court opinion — is inapposite. In Metter, the Government had not even begun to “conduct[ ] its [privilege] review of the [electronic] evidence seized” fifteen months after the warrant was executed and had “no plans whatsoever to begin review of that data.” Metter, 860 F.Supp.2d at 211, 215. Here, by contrast, the Government completed its privilege review in eight months. Then, by the end of twenty-three months, it completed its entire review of the evidence. Further, in Metter, the court found that the Government displayed a “lack of good faith” because it “failed to commence the review [of the evidence], despite repeated requests from defense counsel and directions from the Court to do so,” and it “indicate[d] that it had no intention of fulfilling its obligations” to do so. Id. at 216. Here, however, Jarman does not accuse the Government of similarly acting in bad faith. Thus, Jarman is not entitled to suppression based on the duration of the Government’s post-seizure review of his computer data.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . The district court suppressed the evidence found on this hard drive, holding that "the government’s yearlong, warrantless seizure of [it] was unreasonable, and thus, violated the Fourth Amendment.” Because that ruling is not challenged on appeal, we do not discuss facts specifically relevant to that issue; we address only the court's rulings on the suppression of evidence acquired in a search of Jarman’s home pursuant to a warrant, which are explained below.

      . Specifically, Jarman asserts that the good faith exception does not apply because SA Tedder: (1) made false statements at the Franks hearings; (2) falsely stated in the search-warrant affidavit that members of the taint team would not be involved in the investigation when Yoon was involved with both; (3) made a false statement when he swore to the affidavit and led the magistrate to believe that he had sufficiently corroborated and verified the information in it; (4) acted in bad faith when he described child-pornography offenders’ characteristics in the affidavit and asserted and relied upon the nexus between them and the assertion that Jarman likely hoarded child pornography; (5) included file names in the affidavit that he had no basis for including; (6) should not have implied in the affidavit that Collins easily selected one file and observed the grainy image of an adult male sodomizing a male child; (7) deliberately inserted in the affidavit the false statement that "[p]er JARMAN’s request, all data from the old computer, to include the files depicting suspected child pornography, was transferred over to the new computer at JARMAN’S residence”; (8) knowingly and recklessly inserted in the affidavit the false statement that "Jarman retained images of child pornography from October 2006 to November 2007 on the computer located at his residence”; (9) did not mention in the affidavit that accessing or viewing child pornography was not illegal before October 2008 or that the inadvertent downloading of child pornography into temporary internet files did not necessarily constitute possession; (10) did not mention in the affidavit that: (a) there was no evidence that Jarman accessed or downloaded child pornography; (b) there was nothing showing' that Jarman’s home computers were linked to child pornography; and (c) the illegal.CP subscription information was not associated with Jarman’s home; (11) made a false statement by swearing to the affidavit without explaining that Yoon drafted most of it; (12) showed a reckless disregard for the truth by re-interviewing Collins instead of interviewing Wilson and at least recklessly omitted any mention of SA Jones’s initial interview of Collins and Collins's initial statement regarding what data was transferred; and (13) at least recklessly failed to include in the affidavit the facts that Collins only found a single, grainy image of child pornography in the root directory and that the only suggestive file names Collins saw were located in temporary internet files that were not viewable.

      . Accord, e.g., United States v. Kleinkauf, 487 Fed.Appx. 836, 838-39 (5th Cir. 2012) (finding that a nine-month delay did not render information stale); United States v. Allen, 625 F.3d 830, 842-43 (5th Cir. 2010) (finding that an eighteen-month delay did not render information stale); United States v. Frechette, 583 F.3d 374, 378-79 (6th Cir. 2009) (finding that a sixteen-month delay did not render information stale); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (finding that a three-year delay did not render information stale); Syphers, 426 F.3d at 469 (finding that a five-month delay was reasonable); United States v. Riccardi, 405 F.3d 852, 863 (10th Cir. 2005) (finding that a five-year delay did not render information stale); United States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005) ("Information a year old is not necessarily stale as a matter of law.”); United States v. Gorrell, 360 F.Supp.2d 48, 55 n.5 (D.D.C. 2004) (finding that a ten-month delay was reasonable).


source: Caselaw Access Project

author: WIENER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Clarence Bernard BUCK, also known as BB; Kendal Allen, Defendants-Appellants
    No. 15-20697
    United States Court of Appeals, Fifth Circuit.
    Filed February 1, 2017

      Scott A.C. Meisler, Esq., U.S. Department of Justice, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Winifred Akins Pastorini, Houston, TX, for Defendant-Appellant Clarence Bernard Buck, also known as BB.
    James Madison Ardoin, III, Esq., Ar-doin Law, P.L.L.C., Houston, TX, for Defendant-Appellant Kendal Allen.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
   WIENER, Circuit Judge:

Defendants-Appellants Clarence Bernard Buck and Kendal Allen (collectively “defendants”) were charged with various crimes, including robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They proceeded to jury trial, but three days into it the district court granted their motions for a mistrial. At the conclusion of the second jury trial, Buck and Allen were convicted on all counts. Buck was sentenced to 1,846 months of imprisonment, and Allen was sentenced to 1,435 months. They now appeal, contending that the retrial of their case violated their constitutional rights and that the classification of Hobbs Act robbery as a crime of violence was error. In addition, Buck asserts that the Hobbs Act robbery jury instruction was flawed, the abduction enhancement to his sentence was error, and his restitution obligation should be shared with others; and Allen appeals his 119-year sentence as a violation of the Eighth Amendment and the introduction of his statements to a government witness as reversible error. We affirm.

I.

FACTS AND PROCEEDINGS

A. Facts

Buck and Allen, along with other individuals, were accused of participated in armed robberies of various T-Mobile stores and a flea market jewelry store in the Houston area between November 2012 and July 2013. The robberies followed similar patterns, including forcing store employees from the front of the store to the back, where cellular phones were stored. All of the robberies in question included defendants or their co-conspirators brandishing firearms during the commission of those crimes.

B. Procedure

In March 2015, defendants entered pleas of not guilty and proceeded to trial by jury. Three days into the trial, it came to light that the government had not turned over all of the required discovery materials, including witness statements, a police interview with Buck, and two police lineups. The district court held a hearing in which it admonished the government for its failure to turn over such materials. The court then granted defendants’ motions for mistrial, but it denied their motions for dismissal of the case with prejudice.

A second jury trial took place some five months later, in August 2015. Between the first and second trials, defendants again filed motions to dismiss the case with prejudice, which the court denied in a summary order. The jury convicted Buck and Allen of conspiracy to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Buck was also convicted of (1) seven counts of committing, or aiding and abetting, Hobbs Act robbery, (2) seven counts of using and carrying, or aiding and abetting the use of and carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).. Allen was convicted of six counts of Hobbs Act robbery and six counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).

The district court sentenced Buck to concurrent sentences of 240 months of imprisonment on the robbery counts; a consecutive 22-month term on the charge of being a felon in possession of a firearm; a mandatory consecutive 84-month term of imprisonment on one firearm count; and five additional consecutive terms of 300 months of imprisonment on the remaining firearm counts, for a total of 1,846 months of imprisonment. The court sentenced Allen to 151 months for the robberies; a mandatory consecutive term of 84 months; and four additional consecutive terms of 300 months of imprisonment on the firearms counts for a total of 1,435 months of imprisonment. Both defendants appeal their convictions and sentences.

II.

THE SECOND TRIAL

Defendants challenge the second jury trial for different reasons. Allen insists that the second trial amounts to double jeopardy and that his constitutional rights under Brady v. Maryland were violated. Buck asserts that the district court should have sanctioned the government for discovery violations by dismissing the case against him with prejudice.

A. Standard of Review

The Fifth Amendment protects individuals from “repeated prosecutions for the same offense.” We review challenges to the prohibition against double jeopardy de novo. We review sanctions imposed by the district court for discovery-related violations for abuse of discretion. We only reverse the trial court’s factual findings related to double jeopardy challenges and discovery-related violations if they are clearly erroneous.

B. Analysis

The government may not use a jury as a focus group; neither may it use a jury trial as a discovery tool. When a trial is terminated over defense objection, retrial is prohibited absent “manifest necessity.” Retrial of a case following a motion for mistrial by the defense is allowed, however, unless government conduct that was “intended to ‘goad’ the [defense] into moving for a mistrial” prompted the defense’s motion.

In this case, it was not until the third day of the initial trial that it came to light that the government had failed to turn over some discovery materials, including various interviews with witnesses — including Buck — and records of police line-ups. When that matter was brought to the attention of the district court, it held a hearing and granted defendants’ motion for mistrial, but denied defendants’ motions for dismissal of the case with prejudice.

1. Allen’s Claim of Double Jeopardy

Allen contends that the government “goaded” him into seeking a mistrial because the trial was “not going well” for the government and defense counsel had pointed out weaknesses in the government’s case. “Goading” is narrowly defined, and “[g]ross negligence by the prosecutor, or even intentional conduct that seriously prejudices the defense, is insufficient” to be characterized as “goading.” “Instead, there must be ‘intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.’ ”

The government counters that it had no prior knowledge of the missing items of discovery. It says that it asked the state agencies that initially investigated defendants’ crimes if they had turned over “everything” in their possession, to which the state agencies responded affirmatively. The government also relies on its open-file discovery policy and on the fact that it continued to produce materials promptly as it received them.

It is true that in the first trial, the government heard defendants’ opening statements and their cross-examination of government witnesses, and had the opportunity to gauge jury reactions to their own witnesses. Regardless, the “objective facts and circumstances” in this case do not suggest that the prosecutors engaged in “conduct ... intended to provoke the defendants] into moving for a mistrial.” We are satisfied that the government did not goad Allen into seeking a mistrial and that his double jeopardy rights thus were not violated.

2. Allen’s Brady Claim

Allen also urges that the government failed to meet its constitutional obligations imposed by Brady , Under Brady, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.” A Brady violation requires that the evidence withheld by the government be either exculpatory or impeaching, and that prejudice ensued. Allen has not identified any exculpatory or impeaching evidence that was withheld by the prosecution. The retrial of the criminal case against Allen did not violate his constitutional rights under Brady and its progeny.

3. Buck’s Claims

Buck acknowledges that his being retried is not barred by the double jeopardy clause. Instead, Buck contends that, given the concerns underlying double jeopardy and the rules of procedure, the district court erred by allowing the retrial. We have held that, with regard to the imposition of sanctions for discovery violations, district courts should consider: “1) the reasons why disclosure was not made; 2) the amount of prejudice to the opposing party; 3) the feasibility of curing such prejudice with a continuance of the trial; and 4) any other relevant circumstances.”

As to the first factor, the government again asserts that the failure to disclose the evidence in question was not intentional. Generally, a district court will not impose severe sanctions in the absence of bad faith. As discussed above, nothing in the record suggests that the government’s failure to disclose evidence was intentional. Thus, this factor weighs against dismissal with prejudice as a sanction.

As to the second factor, Buck—like Allen—argues that by hearing his opening statement and his defense theory in the first trial, the government was given a significant advantage. However, there is no evidence that defendants were prejudiced by the first trial. Thus, this factor is neutral.

The third factor weighs against dismissal with prejudice as a sanction because Buck had almost five months.to prepare a new strategy based on the new discovery.

As to the fourth factor, Buck does not address other relevant circumstances, but relies exclusively on policy arguments that his case should be dismissed with prejudice as a sanction for the government’s discovery violations. Even if we were persuaded that such policy arguments weigh in favor of dismissal, the district court did not abuse its discretion in refusing to dismiss the case based on the government’s discovery violations.

III.

HOBBS ACT ROBBERY AS A CRIME OF VIOLENCE

Defendants insist that their Hobbs Act robbery convictions do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A) and that they cannot qualify under § 924(c)(3)(B) because the clause is vague and crediting it would violate due process.

A. Standard of Review

Because this challenge is asserted for the first time on appeal, we review it for plain error.

B. Analysis

Section 924(c) punishes “any person who, during and in relation to any crime of violence uses or carries a firearm....” When the firearm is brandished during and in relation to any crime of violence the statutory minimum becomes seven years’ imprisonment.

Section 924(c) contains two definitions of a crime of violence. Under § 924(c)(3)(A), a crime of violence is a felony that “has an element the use, attempted use, or threatened use of physical force against the person or property of another.” Under § 924(c)(3)(B), which is referred to as the “residual clause,” a crime of violence is a felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Whether a particular offense is a crime of violence is a question of law for the court to resolve. The Supreme Court applies a categorical approach, looking only to the statutory definitions — i.e., the elements — of a defendant’s offense, and not to the particular facts underlying the convictions. The Hobbs Act defines robbery, in pertinent part, as “the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” Allen argues that because an individual could be convicted under the Hobbs Act for nothing more than threatening some future injury to the property of a person who is not present, this cannot be a crime of violence under the statute.

In United States v. Hill, the Second Circuit concluded that the Hobbs Act’s reference to actual or threatened force or violence “would appear, self-evidently, to satisfy” the standard needed for a crime of violence under § 924(c)(3)(A). In addition, the Third, Eighth, and Eleventh Circuits have held that the Hobbs Act definition of robbery describes a crime of violence under § 924(c)(3)(A), and the Ninth Circuit has reached the same conclusion in an unpublished opinion. It was not error— plain or otherwise — for the district court to classify a Hobbs Act robbery as a crime of violence.

IV.

HOBBS ACT ROBBERY JURY INSTRUCTION

Buck also objects to the district court’s use of the Fifth Circuit pattern jury instruction on the Hobbs Act to the extent that it does not require the jury to find that he had a culpable mental state regarding the effect of his conduct on interstate commerce.

A. Standard of Review

We review the use of a particular jury instruction for abuse of discretion. We ask “whether the instruction, taken as a whole, is a correct statement of law and whether it clearly instructs jurors as to the principle of the law applicable to the factual issues confronting them.”

B. Analysis

The Hobbs Act imposes criminal penalties on, “[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do.... ” This language “is unmistakably broad ... reaching] any obstruction, delay, or other effect on commerce, even if small, and the Act’s definition of commerce encompasses ‘all ... commerce over which the United States has jurisdiction.’ ”

Buck submitted proposed jury instructions, which included the requirement that the government prove the “defendant knew that his conduct, or the conduct of another which he aided or abetted, would or could materially obstruct, delay, or affect commerce.” He requested that the final paragraph of the portion of the pattern jury instruction, which states that the government is not required to prove intent, knowledge, or anticipation of an affect on commerce, not be submitted to the jury. The district court denied Buck’s request and used the entire Hobbs Act pattern jury instruction to instruct the jury.

We have held that the Hobbs Act “does not require that the defendant have specifically intended to affect interstate commerce,” or that he acted with knowledge interstate commerce would be affected. Courts have routinely held that a criminal defendant need not know of a federal crime’s connection to interstate commerce to be found guilty. Thus, the use of the Fifth Circuit pattern jury instruction for Hobbs Act robbery was not an abuse of discretion by the district court.

y.

THE ABDUCTION ENHANCEMENT

Buck objects to an enhancement of his sentence based on abduction.

A. Standard of Review

We review the district court’s interpretation of the Sentencing Guidelines de novo. We review the district court’s factual findings for clear error.

B. Analysis

The district court applied a four-level enhancement for abduction to Buck’s base offense level, pursuant to Sentencing Guideline § 2B3.1(b)(4)(A). That provision allows enhancement “[i]f any person was abducted to facilitate commission of the offense or to facilitate escape-” “Abducted” is defined as “a victim was forced to accompany an offender to a different location.” Buck objects to this enhancement, claiming that the facts at issue in this case are distinguishable from case law that supports the “abduction” enhancement and that the term “location” in the Sentencing Guidelines is ambiguous.

Buck notes that the presentence report did not specifically address the conduct that led to the abduction enhancement. He assumes that it refers to the movement of victim employees from the front to the back of the T-Mobile stores during the robberies of those stores.

We have repeatedly construed the “abduction” enhancement as applicable when a victim is forced from one part of a building to another. We have also indicated that the term “different location” should be interpreted with flexibility. We are satisfied that the conspirators forcing T-Mobile employees to move from the front of the stores to the backs was sufficient to make the abduction enhancement applicable.

VI.

THE RESTITUTION AWARD

Buck claims that his restitution obligation should be allocated to other parties, including cooperating witnesses Deandre White and Trent Davis, and to Rafey Khan and Zeeshan Yasin, two individuals who profited by purchasing the stolen items.

A. Standard of Review

We review whether a restitution award is “permitted by the appropriate law” de novo We review “the propriety of a particular award for an abuse of discretion.”

B. Analysis

The district court ordered Buck to pay $789,271.74 in restitution to the robbery victims. That court’s judgment specified that Buck’s obligation was “joint and several with any co-defendant who has been or will be ordered to pay restitution.” Co-defendant Allen was also held responsible for the full amount of restitution, and co-defendant Donald Holmes was held responsible for a portion of the restitution. However, White, Davis; Khan, and Yasin, were not convicted of the robberies that gave rise to this restitution. White was an unindieted co-conspirator. Davis, Khan, and Yasin were named in the original indictment as Hobbs Act co-conspirators, but they ultimately entered pleas of guilty to different offenses. T-Mobile and the jewelry store were “directly and proximately harmed as a result of the commission” of the Hobbs Act robberies, not the crimes for which those witnesses were convicted. The district court thus lacked the authority to make those parties jointly and severally liable for the restitution obligation. The district court did not abuse its discretion in not holding White, Davis, Khan, or Yasin, jointly and severally liable for the restitution award in this case, so Buck’s objection fails.

VII.

ALLEN’S SENTENCE AND THE EIGHTH AMENDMENT

Allen argues that his 119-year sentence violates the Eighth Amendment because it is effectively a life sentence which is reserved for only the most “existential” crimes. He also insists that his sentences should run concurrently.

A. Standard of Review

The Eighth Amendment prohibits cruel and unusual punishment. We review an Eighth Amendment challenge to the constitutionality of a sentence de novo.

B. Analysis

To reach Allen’s 119-year sentence, the district court imposed terms of 151 months for each of his six robbery convictions under the Hobbs Act, then added a series of consecutive terms for the use of firearms diming the robberies, as required by 18 U.S.C. § 924(c)(1). Section 924(c) mandates a minimum sentence of seven years of imprisonment when a defendant brandishes a firearm during and in relation to a crime of violence. Section 924(c)(l)(D)(ii) requires that those seven years run consecutively to the prison term for the underlying crime of violence. Section 924(c)(1)(C)(i) imposes additional consecu-five terms of 25 years for every “second or subsequent conviction under” the statute. This includes instances when the first and subsequent convictions occur in a “single proceeding.” Allen’s sentence is thus within the statutory guidelines applicable to his case.

A sentence imposed within statutory limits may nevertheless violate the Eighth Amendment if it “is so disproportionate to the crime committed that it shocks human sensibilities.” We conclude that this sentence does not shock human sensibilities and is consistent with other decisions in this court. The length of Allen’s sentence is not unconstitutional.

VIII.

ALLEN’S STATEMENTS TO GOVERNMENT WITNESSES

Finally, Allen urges that admission of the statements he made while he was in jail with a government witness, Son-Tanna Hewitt, deprived him of a fair trial.

A. Standard of Review

We review preserved challenges to the admission of evidence for abuse of discretion.

B. Analysis

Hewitt was not involved in the November robberies; he was only involved in the July robbery, to which Allen asserts he had no connection. Allen alleges that three months after Hewitt entered into a deal with the government he was placed in the same segregation unit as Allen. Hewitt was called by the government and testified as to Allen’s jailhouse admissions to having committed each element of the crimes.

Allen argues that the use of Hewitt’s jailhouse testimony is essentially an ambush by the prosecution because “confessions” are exempt from disclosure under Rule 16. Allen insists that, but for Hewitt’s testimony, he would have been acquitted because the only other evidence against him was “a murky video and three highly discreditable witnesses.”

The Supreme Court has repeatedly held that introduction of a defendant’s statement to a cellmate does not violate the Sixth Amendment right to counsel. Jailhouse snitches are not inherently unreliable. Defendants are entitled to confront and cross-examine such witnesses to discredit them, and Allen was afforded that right. In addition, the district court instructed this jury that testimony of cooperating accomplice witnesses “is always to be received with caution and weighed with great care.” The district court did not abuse its discretion in allowing Hewitt to testify.

IX.

CONCLUSION

For the foregoing reasons, we AFFIRM all convictions of Buck and Allen as well as the sentences imposed by the district court.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

      . United States v. Dugue, 690 F.3d 636, 637-38 (5th Cir. 2012).

      . United States v. Dvorin, 817 F.3d 438, 453 (5th Cir. 2016).

      . See Dugue, 690 F.3d at 637-38.

      . See United States v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).

      . Martinez v. Caldwell, 644 F.3d 238, 243 (5th Cir. 2011).

      . Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

      . United States v. El-Mezain, 664 F.3d 467, 561 (5th Cir. 2011).

      . Id. (quoting United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003)).

      . Kennedy, 456 U.S. at 675, 679, 102 S.Ct. 2083.

      . 373 U.S. 83, 83 S.Ct. 1194.

      . Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

      . Id. at 281-82, 119 S.Ct. 1936.

      . The procedural rules that Buck appears to be relying on are Brady and Rule 16 of the Federal Rules of Criminal Procedure.

      . United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000).

      . Dvorin, 817 F.3d at 453.

      . United States v. Williams, 343 F.3d 423, 431 (5th Cir. 2003).

      . 18 U.S.C. § 924(c)(1)(A).

      . 18 U.S.C. § 924(c)(l)(A)(ii).

      . 18 U.S.C. § 924(c)(3)(A).

      . 18 U.S.C. § 924(c)(3)(B).

      . United States v. Credit, 95 F.3d 362, 364 (5th Cir. 1996).

      . Descamps v. United States, -U.S. -, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013).

      . 18 U.S.C. § 1951(b)(1).

      . Buck's challenge to § 924(c) appears to rely only on his claim that § 924(c)(3)(B) is unconstitutional. As discussed below, we need not address § 924(c)(3)(B) to hold that the district court did not err in classifying the Hobbs Act robbery as á crime of violence.

      . Allen argues that because his alleged criminal conduct could be defined as "obtaining of personal property ... in the presence of another, against his will by means of ... fear of injury, immediate or future, to ... the ... property of a ... member of his family,” his conviction cannot be a crime of violence because it does not require the kind of violent force needed for a crime of violence under this clause of § 924. Allen cites Johnson v. United States, for the proposition that the Supreme Court interprets "physical force” to mean “violent force — that is, force capable of causing physical pain or. injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

      . 832 F.3d 135, 140 (2d Cir. 2016).

      . United States v. Robinson, 844 F.3d 137, 140-41 (3d Cir. 2016); In re Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); United States v. Howard, 650 Fed.Appx. 466, 468 (9th Cir. 2016).

      . The Fifth Circuit pattern jury instruction for Hobbs Act robbery, which was given at the second trial, states in relevant part:
      For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

        First: That the defendant obtained [attempted to obtain] [conspired to obtain] property from another with that person’s consent;

        Second: That the defendant did so by wrongful use of actual or threatened force, violence, or fear; and

        Third: That the defendant’s conduct in any way or degree obstructed [delayed] [affected] commerce [the movement of any article or commodity in commerce].

      The government is not required to prove that the defendant knew that his conduct would obstruct -[delay] [affect] commerce [the movement of any article or commodity in commerce]. It is not necessary for the government to show that the defendant actually intended or anticipated an effect on commerce by his actions. All that is necessary is that the natural and probable consequence of the acts the defendant took would be to affect commerce. If you decide that there would be any effect at all on commerce, then that is enough to satisfy this element. Fifth Cir. Pattern Jury Instr. 2.73A (2015).

      . United States v. Anderson, 560 F.3d 275, 279 (5th Cir. 2009).

      . Id. (internal quotation marks omitted).

      .18U.S.C. § 1951(a).

      . Taylor v. United States, — U.S. -, 136 S.Ct. 2074, 2079, 195 L.Ed.2d 456 (2016) (quoting 18 U.S.C. § 1951(b)(3)).

      . United States v. Hebert, 131 F.3d 514, 523 (5th Cir. 1997).

      . See, e.g. id.; United States v. Jinian, 725 F.3d 954, 964-66 (9th Cir. 2013); United States v. Lindemann, 85 F.3d 1232, 1241 (7th Cir. 1996); United States v. Blackmon, 839 F.2d 900, 907 (2d Cir. 1988).

      . United States v. Smith, 822 F.3d 755, 762 (5th Cir. 2016).

      . Id.

      . U.S. Sentencing Guidelines Manual § 2B3.1(b)(4)(A) (U.S. Sentencing Comm’n 2015).

      . U.S. Sentencing Guidelines Manual § 1B1.1 cmt. 1(A) (U.S. Sentencing Comm'n 2015).

      . See Smith, 822 F.3d at 763-64 (forcing victims to move from one area of a bank to another to aid in stealing money was "abduction” for the purposes of the Guidelines); United States v. Hawkins, 87 F.3d 722, 727-28 (5th Cir. 1996) (finding that forcing victims to move 50 to 60 feet in the same parking area was "abduction” for the purposes of the Guidelines).

      . United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010).

      . Buck also contends that the term "location” and its use in the Sentencing Guidelines is ambiguous. He asserts that the rule of lenity should be applied and his sentence vacated. However, as used in the Guidelines, this term does not have the kind of "grievous ambiguity” that implicates the rule of lenity. See Muscarello v. United States, 524 U.S. 125, 139, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998). Buck’s argument that the term "location” is ambiguous must fail.

      . United States v. Sheets, 814 F.3d 256, 259 (5th Cir. 2016).

      . Id.

      . Sheets, 814 F.3d at 258 n.3. White was convicted of the unrelated offense of conspiring to possess with intent to distribute more than five kilograms of cocaine. Davis was convicted of an unrelated robbery. Khan and Yasin were convicted of misprision of a felony, in violation of 18 U.S.C. § 4, for failing to report the T-Mobile robberies.

      . See 18 U.S.C. §§ 3663A(a)(2); 3664(f)(1)(A).

      . U.S. Const, amend VIII.

      . United States v. King, 773 F.3d 48, 52 (5th Cir. 2014).

      . 18 U.S.C. § 924(c)(l)(A)(ii).

      . 18 U.S.C. § 924(c)(l)(D)(ii).

      . 18 U.S.C. § 924(c)(l)(C)(i).

      . See Deal v. United States, 508 U.S. 129, 131, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993).

      . Yeager v. Estelle, 489 F.2d 276, 276-77 (5th Cir. 1973).

      . In United States v. Thomas, the defendant was convicted of five robberies, each with a firearm, and was sentenced to 1,435 months’ imprisonment. 627 F.3d 146, 159-60 (5th Cir. 2010). We held that the "sentence was not grossly disproportionate to the offenses he committed.” Id. at 160.

      . See United States v. Hefferon, 314 F.3d 211, 222 (5th Cir. 2002). Allen objected to the testimony in question in a pretrial motion and renewed his motion at trial.

      . Five of the robberies that form the basis of this case occurred in November 2012. One occurred in July 2013.

      . Kansas v. Ventris, 556 U.S. 586, 591-92, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009).

      . Id. at 594 n.®, 129 S.Ct. 1841.

      . See Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 723, 181 L.Ed.2d 694 (2012).