[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 28, 2006
No. 05-16515 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00042-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TARIO STAMPS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 28, 2006)
Before DUBINA, CARNES and FAY, Circuit Judges.
PER CURIAM:
Tario Stamps and a codefendant were charged with three counts of bank
robbery, in violation of 18 U.S.C. §§ 2113(d) and 2, one count of interference with
commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Hobbs Act),
four counts of possession/use of a firearm during a robbery, in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii), (iii) and 2, and one count of retaliation against a
witness or victim, in violation of 18 U.S.C. §§ 1513(b)(2) and 2. A jury found
Stamps guilty of all charges and the district court sentenced Stamps to a total of
96-years’ (1,152 months’) imprisonment. Stamps’s term of imprisonment included
the consecutive minimum seven-year (84-month) term of imprisonment on the first
§ 924(c)(1) conviction, in which the jury found that a firearm was brandished, and
consecutive 25-year (300-month) sentences on the three remaining § 924(c)(1)
convictions. See § 924(c)(1)(A)(ii), (c)(1)(C). The court’s restitution order
included $85,000 to C & C Jewelers. On appeal, Stamps challenges the Hobbs Act
jury instruction, the imposition of the three 25-year terms of imprisonment on his
second through fourth § 924(c)(1) convictions, and the calculation of the restitution
awarded to C & C Jewelers. For the reasons set forth more fully below, we affirm.
We review de novo the legal correctness of a jury instruction. United States
v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). “A sentencing issue not raised in
the district court is reviewed for plain error, or error that is clear or obvious and
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affects substantial rights.” United States v. Richardson, 166 F.3d 1360, 1361 (11th
Cir. 1999).
Stamps first challenges the Hobbs Act jury instruction, arguing that the
district court erred when it overruled his objection that more than a minimal effect
on interstate commerce was required to establish a violation of the Hobbs Act. The
Hobbs Act provides that “[w]hoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in commerce, by
robbery . . . shall be fined under this title or imprisoned not more than twenty
years, or both.” 18 U.S.C. § 1951(a). As Stamps correctly recognizes, we have
held that, to prove a violation of the Hobbs Act, the government need only show a
minimal effect on commerce, not a substantial effect. United States v.
Verbitskaya, 406 F.3d 1324, 1331-32 (11th Cir. 2005), cert. denied, 126 S.Ct. 1095
(2006); United States v. Gray, 260 F.3d 1267, 1275-76 (11th Cir. 2001). Thus, the
district court did not err when it declined to instruct the jury that it must find a
substantial effect on interstate commerce.
Again recognizing that his argument is foreclosed by precedent, Stamps next
argues that the district court erred when it sentenced him to consecutive 25-year
sentences on three of his § 924(c)(1) convictions, which were contained in the
same indictment. Because Stamps did not raise this objection in the district court,
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our review is for plain error. Richardson, 166 F.3d at 1361. For a second or
subsequent § 924(c)(1) conviction, the minimum term of imprisonment is 25 years.
18 U.S.C. § 924(c)(1)(C). In Deal v. United States, 508 U.S. 129, 130-37, 113
S.Ct. 1993, 1995-99, 124 L.Ed.2d 44 (1993), the Supreme Court held that the
second through sixth § 924(c)(1) convictions, arising from a single proceeding,
were second or subsequent convictions within the meaning of § 924(c)(1). As his
position is foreclosed by Deal, Stamps can show neither error nor plain error.
Stamps next contends that the district court clearly erred when it ordered
$85,000 in restitution to C & C Jewelers, arguing that the district court should have
ordered restitution based on the replacement cost of the jewelry and not its fair
market value. Relying on United States v. Shugart, 176 F.3d 1373 (11th Cir.
1999), Stamps reasons that, although jewelry is a commodity, it is not a fungible
commodity because it is not sold at a set rate, and to grant restitution based on the
amount of money for which C & C Jewelers might have sold all the items gives it a
windfall.
We generally review the district court’s use of a particular measure of value
for abuse of discretion and its finding as to a specific amount of restitution for clear
error. See Shugart, 176 F.3d at 1375. However, because Stamps did not object to
the district court’s calculation of his restitution obligation, our review is for plain
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error. United States v. Dabbs, 134 F.3d 1071, 1084 (11th Cir. 1998). “[W]here
neither the Supreme Court nor this Court has ever resolved an issue, and other
circuits are split on it, there can be no plain error in regard to that issue.” United
States v. Gerrow, 232 F.3d 831, 835 (11th Cir. 2000) (citation and quotation marks
omitted).
When restitution is required for offenses resulting in the loss of the victim’s
property, if the property cannot be returned, the defendant must pay the greater of
the “value of the property” at either the date of the loss or the date of sentencing,
less the value of any property that is returned. 18 U.S.C. § 3663A(b)(1)(B). In
determining the amount of restitution, the district court is not limited to the fair
market value of an item, but may also measure value based on the replacement
cost. Shugart, 176 F.3d at 1375. “‘[V]alue,’ as § 3663A uses that term,
contemplates a restitution order based on replacement cost where actual cash value
is unavailable or unreliable. Whether actual cash value is unavailable or unreliable
is an issue of fact, and a district court’s decision to use replacement cost is a matter
of discretion.” Id.
At trial, the owner of C & C Jewelers testified that the men who robbed his
store took jewelry worth “roughly 80 something thousand in retail” and whose cost
was “22, 24 thousand.” In preparing the presentence investigation report, the
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probation officer stated that C & C Jewelers suffered a monetary loss of $85,000,
and that $85,000 in restitution was owed to C & C Jewelers.
We conclude that the district court’s use of the retail value of the jewelry
was not plain error. It is not clear or obvious under Shugart that the district court
erred in using the jewelry’s retail value. In Shugart we noted the lack of
marketability and uniqueness of a church, Shugart, 176 F.3d at 1375, whereas the
stolen jewelry was offered for sale. Stamps cites no binding precedent considering
whether restitution for either jewelry or lost inventory should be based on the retail
fair market value of those goods or on the replacement cost or wholesale value of
the goods. Moreover, other circuits have upheld the use of the retail or fair market
value of property stolen from businesses when determining the amount of
restitution. United States v. Susel, 429 F.3d 782, 784 (8th Cir. 2005) (affirming
the use of retail value of stolen software sold on eBay, resulting in lost sales to the
software company); United States v. Rice, 38 F.3d 1536, 1544 (9th Cir. 1994)
(concluding that there was no abuse of discretion where restitution was based on
“book price,” which included a profit markup, rather than manufacturing cost of
free samples illegally obtained by the defendant); United States v. Lively, 20 F.3d
193, 195, 200-03 (6th Cir. 1994) (affirming district court’s use of the retail value of
the goods rather than the cost of manufacture or the wholesale value for restitution
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to mail order companies from whom the defendant fraudulently obtained
merchandise).
In light of the foregoing, Stamps’s convictions and sentences are
AFFIRMED.
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