UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4677
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN SINGLETON, a/k/a Boogie, a/k/a DU, a/k/a
Devine Understanding,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Cameron McGowan Currie, District
Judge. (CR-02-419)
Argued: February 3, 2006 Decided: May 2, 2006
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Traxler
and Judge Duncan joined.
ARGUED: Keir Michael Weyble, BLUME, WEYBLE & LOMINACK, L.L.C.,
Columbia, South Carolina, for Appellant. Mark C. Moore, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: John F.
Hardaway, Columbia, South Carolina, for Appellant. Jonathan S.
Gasser, Acting United States Attorney, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
GREGORY, Circuit Judge:
In this appeal, John Singleton challenges his conviction for
robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and two
other convictions for which the Hobbs Act charge was the predicate
federal offense. He also challenges his sentence, which was
imposed prior to United States v. Booker, 543 U.S. 220 (2005). For
the following reasons, we affirm Singleton’s convictions, but
vacate his sentence and remand for resentencing.
I.
Fleming Lee owned and operated the Lee Mart convenience store
in Denmark, South Carolina, which obtained much of its inventory
from out-of-state suppliers. Lee lived in a trailer next door to
the Lee Mart, and his practice was to take the store’s daily
proceeds to the safe in his residence. He would later deposit most
of these proceeds in his business bank account to cover Lee Mart
expenses. A few days before Memorial Day in 2000, Singleton
recruited his brother-in-law Eric Johnson to participate in a
robbery of the Lee Mart. Johnson was familiar with the Lee Mart
because his wife Roslyn (Singleton’s sister) had previously been
employed there. Johnson also knew about Lee’s habit of taking Lee
Mart proceeds to his home, and told Singleton about this practice.
At a Memorial Day cookout, Singleton discussed the proposed
robbery of the Lee Mart with two other men, Sherman Coulter and
3
Jonathan Sapp, who also agreed to participate. That evening, the
four drove to Denmark and found that the Lee Mart was closed.
While Singleton and Johnson stayed in the car, Coulter and Sapp
went to Lee’s residence armed with a 9-millimeter handgun. They
rushed into Lee’s home and demanded that Lee tell them where “the
money” was. J.A. 165. Sapp shot Lee in the abdomen when Lee
refused to cooperate, injuring him. Coulter discovered Lee’s safe,
and the two men beat Lee until he opened it. When Lee then
struggled with the intruders, Coulter shot Lee in the face.
Realizing that Lee was still alive, Sapp shot Lee again in the head
as the two left. Coulter and Sapp returned to the car with between
$3,600 and $6,0001 and told Singleton and Johnson that they had
killed Lee. Singleton remarked, “that is one less white person I
have to worry about.” J.A. 146.
Lee’s body was discovered the next morning. The Lee Mart
remained closed for fourteen or fifteen days while the Lee family
made arrangements for Lee’s funeral and the future operation of the
store. Singleton, Johnson, Sapp, and Coulter were arrested and
charged in federal court. Eventually, Singleton’s co-defendants
pled guilty and agreed to cooperate with the Government. Singleton
was tried by a jury on a six-count indictment. He was convicted of
1
There is some uncertainty as to the exact amount taken.
Johnson testified that his equally divided share of the robbery
proceeds was $900, J.A. 145, whereas Sapp testified that the total
taken was around $6,000, J.A. 147.
4
robbery under the Hobbs Act, in violation of 18 U.S.C. §§ 1951 and
2 (Count 1); using a firearm in a crime of violence under
circumstances constituting murder, in violation of 18 U.S.C. §§
924(j)(1) and 2 (Count 2); conspiracy to knowingly use and carry
firearms during and in relation to, and to possess firearms in
furtherance of crimes of violence, in violation of 18 U.S.C. §
924(o) (Count 4); and possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g) and 924(a) (Count 5). The jury
returned a verdict of not guilty on Counts 3 and 6, which related
to a stolen firearm.
At Singleton’s sentencing, the district court calculated a
total offense level of 43 pursuant to the United States Sentencing
Guidelines Manual (2003), which corresponds to a sentence of life
imprisonment regardless of the defendant’s criminal history
category. Singleton raised an objection to the application of the
Guidelines under Blakely v. Washington, 542 U.S. 296 (2004), but
his argument was foreclosed at that time by our order in United
States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (en banc order), in
which we held that Blakely did not apply to the Sentencing
Guidelines.2 The Government requested that the district court
announce an alternative sentence, pursuant to our recommendation in
2
After the entry of this order, we issued the full opinion for
the case in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004)
(en banc). The Supreme Court later vacated Hammoud in light of
Booker. See United States v. Hammoud, 543 U.S. 1097 (2005).
5
Hammoud, but the district judge declined to do so. Instead, the
court followed the then-mandatory Guidelines and imposed a life
sentence. During the hearing, the court rejected Singleton’s
requests for a downward departure.
II.
We first address Singleton’s challenges to his Hobbs Act
robbery conviction. The Hobbs Act prohibits robbery or extortion
that “in any way or degree obstructs, delays, or affects commerce
or the movement of any article or commodity in commerce.” 18
U.S.C. § 1951(a). Thus, the two elements of a Hobbs Act crime are:
(1) robbery or extortion, and (2) interference with commerce.
Stirone v. United States, 361 U.S. 212, 218 (1960). “The charge
that interstate commerce is affected is critical since the Federal
Government’s jurisdiction of this crime rests only on that
interference.” Id. Given the broad language of the Hobbs Act, we
have held that this jurisdictional element is satisfied where the
instant offense has a “minimal” effect on interstate commerce.
United States v. Spagnolo, 546 F.2d 1117, 1119 (4th Cir. 1976).
This jurisdictional element of the Hobbs Act is the focus of
Singleton’s appeal. First, Singleton argues that in light of the
Supreme Court’s commerce power jurisprudence in United States v.
Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S.
598 (2000), the Government should have been required to prove a
6
substantial effect on commerce from the instant robbery--rather
than simply a minimal effect--in order for the application of the
Hobbs Act to be constitutional in his case. Second, he submits
that even if only a minimal effect is required, the evidence
presented here was insufficient to support such a finding by the
jury. We disagree with both contentions.
A.
Singleton first asserts that the minimal effects standard, as
applied to his robbery conviction under the Hobbs Act, is
inconsistent with the principles of Lopez and Morrison, and thus
that his conviction is unconstitutional. In United States v.
Williams, 342 F.3d 350 (4th Cir. 2003), we held without
qualification that Lopez and Morrison “do not disturb our continued
application of th[e] ‘minimal effects’ standard [to the Hobbs
Act].” Id. at 354. This holding is consistent with the decisions
of our sister circuits. See United States v. Capozzi, 347 F.3d
327, 335-36 (1st Cir. 2003); United States v. Clausen, 328 F.3d
708, 710-11 (3d Cir. 2003); United States v. Fabian, 312 F.3d 550,
554-55 (2d Cir. 2002); United States v. Gray, 260 F.3d 1267, 1272-
76 (11th Cir. 2001); United States v. Morris, 247 F.3d 1080, 1085-
87 (10th Cir. 2001); United States v. Peterson, 236 F.3d 848, 851-
52 (7th Cir. 2001); United States v. Smith, 182 F.3d 452, 456 (6th
Cir. 1999); United States v. Harrington, 108 F.3d 1460, 1465-66
7
(D.C. Cir. 1997); United States v. Atcheson, 94 F.3d 1237, 1241-43
(9th Cir. 1996). But see United States v. McFarland, 311 F.3d 376,
409 (5th Cir. 2002) (en banc) (per curiam) (Garwood, J.,
dissenting) (dissenting with half of the evenly divided en banc
court on the basis that the Hobbs Act’s jurisdictional element
should require substantial effects).
Although Singleton suggests that we can distinguish Williams,
which involved the robbery of $1000 in drug trafficking proceeds
from a drug dealer, we find no basis on which to do so here. Both
Singleton and the defendant in Williams robbed business assets from
the individual operating the business. See Williams, 342 F.3d at
355 (characterizing the stolen drug trafficking proceeds as the
drug dealer’s “business assets”). The fact that the two robberies
involved different types of businesses is of no consequence. The
relevant fact in Williams was that the affected business was an
economic enterprise engaged in interstate commerce. See id. (“Drug
dealing . . . is an inherently economic enterprise that affects
interstate commerce.”); id. at 354 (noting that “the minimal
effects standard does not contravene the teachings of Lopez and
Morrison” in circumstances “where the Hobbs Act reaches a
quintessentially economic activity that, taken in the aggregate,
substantially impacts interstate commerce”). The convenience store
here meets that test--the Lee Mart was a business that purchased a
8
substantial portion of its inventory, including grocery items and
gasoline, from out-of-state suppliers.
Accordingly, following Williams, we conclude that it was
proper for the district court to apply the minimal effects standard
in this case and that the district court instructed the jury
properly.
B.
Alternatively, Singleton contends that even if a minimal
effect on commerce satisfies this element of a Hobbs Act offense,
the evidence here was insufficient to show that minimal effect.
When reviewing the sufficiency of the evidence to support the
conviction, we view “the evidence and the reasonable inferences to
be drawn therefrom in the light most favorable to the Government.”
Williams, 342 F.3d at 355 (internal quotation marks omitted).
“The Hobbs Act . . . does not require proof that a defendant
intended to affect commerce or that the effect on commerce was
certain; it is enough that such an effect was the natural, probable
consequence of the defendant’s actions.” Id. at 354 (citing
Spagnolo, 546 F.2d at 1118-19). This effect on commerce
requirement of the Hobbs Act is satisfied “where a robbery depletes
the assets of a business that is engaged in interstate commerce.”
Id. at 354-55 (citing United States v. Buffey, 899 F.2d 1402, 1404
(4th Cir. 1990)).
9
Singleton raises no challenge to the fact that the Lee Mart
was a business engaged in interstate commerce. Rather, Singleton
argues that the evidence was insufficient to show that the money
taken constituted the assets of the Lee Mart. He asserts that any
Lee Mart receipts Lee removed from the store constituted his
personal money, not store funds, and that Lee could have used that
money for any purpose. He equates Lee removing money from the
store to an employee receiving a paycheck, and asserts that all
robberies would come within federal jurisdiction if his conviction
is allowed to stand.
Singleton is correct to distinguish between the robbery of an
individual’s personal funds and the robbery of the assets of a
business in establishing an effect on commerce. See Buffey, 899
F.2d at 1406 (Under the Hobbs Act, “[e]xtorting money to be devoted
to personal use from an individual does not affect interstate
commerce.”). However, Singleton’s argument is incongruent with the
facts of this case.
Sonja Folks, the Lee Mart’s bookkeeper, confirmed at trial
what Singleton and Johnson knew about Lee’s practice of taking the
daily cash receipts to his neighboring trailer. Folks testified
that Lee would store the proceeds temporarily in his safe and then
deposit most of those funds in the bank to cover store expenses.
With respect to the particular date of the robbery, Folks stated
that several thousand dollars in receipts from the preceding Friday
10
and Saturday were not in the store and, consistent with Lee’s
practice, would have been in Lee’s residence awaiting deposit when
the bank reopened after the holiday.
Thus, the evidence supported a finding that a substantial
portion of the $3,600 to $6,000 netted from the robbery constituted
assets of the Lee Mart, an entity engaged in interstate commerce.
That Lee chose to store these funds in his home temporarily does
not nullify their status as business assets. Rather, the jury
reasonably could have concluded that much of the money would have
been deposited in the Lee Mart’s bank account to purchase more
goods for the store. The fact that Lee might have retained some of
the funds for his personal use is of no import. See United States
v. Bengali, 11 F.3d 1207, 1212 (4th Cir. 1993) (Hobbs Act extortion
offense depleted the assets of a business despite the fact that the
extorted funds came from a bank account used for both business and
personal expenses). Here, therefore, there was effectively no
difference between robbing Lee Mart assets from Lee at his
residence and robbing such funds from the store. See, e.g., United
States v. Le, 256 F.3d 1229, 1237 (11th Cir. 2001) (affirming Hobbs
Act conviction for attempted robbery of business assets stored in
the proprietors’ residence); United States v. Rodriguez-Casiano,
425 F.3d 12, 15 (1st Cir. 2005) (“That the [business assets were]
located at private residences when stolen does not remove the
robberies from the ambit of the Hobbs Act.”).
11
Finally, we note that this is not a case where the connection
to a business engaged in interstate commerce was purely fortuitous.
Some courts have limited the reach of the jurisdictional element of
the Hobbs Act where the effect on commerce arising from the robbery
of an individual occurs by happenstance. See, e.g., United States
v. Wang, 222 F.3d 234, 239-40 (6th Cir. 2000) (reversing Hobbs Act
robbery conviction where individual victim “happen[ed]” to be
carrying proceeds from a restaurant, and noting that its holding
might be different if the defendant “knew of or was motivated by
the individual victim’s connection to interstate commerce”).
However, the concerns of those courts are not implicated here,
where the evidence demonstrated that Singleton and his cohorts
targeted Lee’s residence particularly because of Lee’s relationship
to the Lee Mart, knowing that Lee’s practice was to take the
store’s proceeds home. See, e.g., United States v. Wilkerson, 361
F.3d 717, 731 (2d Cir. 2004) (“the fact that a robbery takes place
at a residence does not transform the robbery from the robbery of
a business into the random robbery of an individual . . . so long
as the evidence supports the conclusion that the robbery targeted
the assets of a business”). Indeed, as originally planned, the
robbery was to have taken place at the Lee Mart. Thus, the effect
on commerce here arose not by chance, but by design.
12
For these reasons, we conclude that the jurisdictional element
of the Hobbs Act was supported by the evidence, and we affirm
Singleton’s conviction on Count 1.3
III.
Lastly, we address Singleton’s challenge to his life sentence.
Singleton asserts what we have termed a “statutory Booker error” in
that the court treated the Guidelines as mandatory, rather than
advisory. See United States v. Rodriguez, 433 F.3d 411, 414 (4th
Cir. 2006) (describing the difference between a Sixth Amendment
Booker error and a statutory Booker error). Singleton preserved
his claim of a statutory Booker error by raising an objection under
Blakely v. Washington, 542 U.S. 296 (2004), at sentencing. See
Rodriguez, 433 F.3d at 416 (holding that a Blakely objection
preserves a claim of statutory Booker error). We therefore review
Singleton’s challenge for harmless error. Id. Under harmless
error review, a defendant is entitled to relief if an error has
affected his substantial rights. Id.; Fed. R. Crim. Pro. 52(a)
(“Any error . . . that does not affect substantial rights must be
disregarded.”). For this inquiry, the Government has the burden to
prove that the district court would not have imposed a lesser
3
Singleton also challenged his convictions on Counts 2 and 4
as without jurisdiction absent the predicate Hobbs Act offense. As
we have affirmed Singleton’s Hobbs Act conviction, these challenges
are without merit.
13
sentence had it treated the Guidelines as advisory, rather than
mandatory. See Rodriguez, 433 F.3d at 416.
In the present case, the district court erred in treating the
Guidelines as mandatory, see United States v. White, 405 F.3d 208,
216-17 (4th Cir. 2005), and the Government has not met its burden
to show that absent this error, the district court’s sentence would
have been the same. At sentencing, the district court noted for
the record her decision not to announce an alternative sentence
based upon 18 U.S.C. § 3553(a), treating the Guidelines as
advisory. Because the district court declined to consider even the
idea of a § 3553(a) advisory Guidelines sentence, we are left with
no indication as to what that sentence might have been. Given that
it is the Government’s burden to prove harmless error, “the
sentencing court’s silence must be interpreted in favor of [the
defendant].” Rodriguez, 433 F.3d at 416. We therefore must
conclude that Singleton was prejudiced by the statutory Booker
error.
The fact that the district court declined to grant a departure
from the Guidelines based upon Singleton’s state of mind or
proportionality concerns does not alter this conclusion. As we
recently noted, “[t]he permissible factors justifying traditional
departures differ from--and are more limited than--the factors a
court may look to in order to justify a post-Booker variance.”
United States v. Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006).
14
Therefore, the district court’s decision that a departure under the
mandatory Guidelines regime was unwarranted does little to resolve
the question of whether the court would impose the same sentence
upon treating the Guidelines as advisory. Accordingly, we vacate
Singleton’s sentence and remand for resentencing.
IV.
For the foregoing reasons, we affirm Singleton’s convictions,
but vacate his sentence and remand for further proceedings
consistent with this opinion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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