IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 93-1851
Summary Calendar
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UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
MICHAEL DEANGELO DAVIS, Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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(August 22, 1994)
Before SMITH, WIENER, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Defendant-Appellant Michael Deangelo Davis ("Davis") appeals
his convictions on four counts of Interference with Commerce by
Threats or Violence in violation of 18 U.S.C. § 1951 ("the Hobbs
Act") and two counts of Use of a Firearm During a Crime of Violence
in violation of 18 U.S.C. § 924(c). He asserts that the Government
failed to present sufficient evidence proving an established nexus
between his robberies of four gas stations and an ensuing effect on
interstate commerce. In addition, Davis challenges the district
court's upward departure based on the subsequent death of one of
the robbery victims. We affirm.
FACTS AND PROCEDURAL HISTORY
Davis was indicted on a total of six counts stemming from the
alleged robbery of four gas stations in Fort Worth, Texas on
December 10, 1992. Four of the counts were for obstruction of
commerce by robbery, and two of the counts were for use of a
firearm during the commission of a robbery.
Witnesses testified that all of the gas stations sold gas,
beer, cigarettes and other goods which were manufactured out-of-
state and distributed across state lines. The testimony also
revealed that Davis used a handgun in at least two of the
robberies. After he fled each of the gas stations he robbed, the
stations had to be temporarily closed, thereby interrupting the
stream of commerce. When Davis testified at the trial, he admitted
robbing the stations, but denied using a handgun in any of them.
The jury convicted Davis on all six counts. The Presentence
Investigation Report ("PSIR") concluded that Davis' conduct caused
the death of Carolyn Overby ("Overby"), an employee working at the
Lady Luck Fina station at the time Davis robbed it on December 10,
1992. According to the Assistant Medical Examiner for Tarrant
County, Texas, the traumatic event of the robbery caused Overby to
suffer a Berry aneurysm at the base of her brain, resulting in her
death two days later.
Although Davis filed an objection to the PSIR's finding that
his conduct caused Overby's death, at sentencing he failed to
present any evidence to contradict that finding. Accordingly, the
district court adopted the PSIR's finding that the robbery caused
Overby's death as undisputed. The court also found that although
Davis did not have the conscious intent to kill, his conduct was
such that he should have anticipated that serious injury or death
2
could result. The court concluded that upward departure was
authorized under § 5K2.1 of the Sentencing Guidelines, which
provides for departure "[i]f death resulted." The court also
concluded that an upward departure was warranted because without it
Overby's death would not be taken into account by the Sentencing
Guidelines.
The district court departed upward on the four obstruction of
commerce counts by adding 60 months to the combined offense level
under the Sentencing Guidelines, for a total of 157 months for each
count running concurrently with one another. In addition, the
court imposed a mandatory consecutive sentence of 60 months on one
of the firearm counts and a mandatory consecutive sentence of 240
months on the second firearm count.
DISCUSSION
Davis contends that the Government failed to show that his
actions affected interstate commerce, notwithstanding the de
minimus evidentiary standard used to establish the jurisdictional
element under the Hobbs Act. Specifically, he argues that the mere
presence of goods such as cigarettes and beer in the gas stations
he robbed does not affect the flow of interstate commerce.
Davis failed to move for a judgment of acquittal at the close
of evidence. Therefore, our review of the sufficiency of the
evidence is limited to determining "whether affirmance of [Davis']
convictions would result in a manifest miscarriage of justice.
This occurs only if the record is devoid of evidence pointing to
guilt." United States v. Pruenda-Gonzales, 953 F.2d 190, 193-94
3
(5th Cir.), cert. denied, ___U.S.___, 112 S.Ct. 2952, 119 L.Ed.2d
575 (1992).
A valid conviction of a Hobbs Act violation by robbery
requires the Government to prove that the defendant's conduct
"obstruct[ed], delay[ed], or affect[ed] commerce or the movement of
any article or commodity in commerce." 18 U.S.C. § 1951(a).
However, the Government need only show that interstate commerce was
obstructed, delayed, or affected "in any way or degree." United
States v. Wright, 797 F.2d 245, 248-49 (5th Cir. 1986), cert.
denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). In
this case, Davis' robberies caused the interruption of commerce in
all four gas stations dealing in out-of-state goods, resulting from
their temporary closure. This evidence is sufficient to support a
finding that Davis' robberies affected interstate commerce.1
Davis next challenges the district court's upward departure at
sentencing under § 5K2.1 of the Sentencing Guidelines for Overby's
death after the robbery.2 He argues that the departure was not
1
See United States v. Martinez, ___F.3d___, WL 392671 (5th
Cir. July 29, 1994) (temporary or permanent closing of business
dealing in out-of-state wares sufficient interference with
interstate commerce); United States v. Richard, 9 F.3d 120 (5th
Cir. 1993) (unpublished opinion) (temporary closure of store
following robbery sufficient interference with interstate
commerce).
2
Section 5K2.1 of the Sentencing Guidelines provides in
pertinent part:
If death resulted, the court may increase the sentence
above the authorized guideline range...The extent of
the increase should depend on the dangerousness of the
defendant's conduct, the extent to which death or
serious injury was intended or knowingly risked, and
the extent to which the offense level for the offense
4
warranted because none of the § 5K2.1 factors apply to him and the
consecutive sentences resulting from his two firearm convictions
adequately accounted for the aggravated circumstances of his
offenses.
The district court is given wide discretion to decide whether
aggravating factors exist to support an upward departure. United
States v. Hatch, 926 F.2d 387, 396-97 (5th Cir.), cert. denied, 500
U.S. 943, 112 S.Ct. 126, 116 L.Ed.2d 93 (1991). A departure will
be affirmed if the court offers "acceptable reasons for the
departure and the departure is reasonable." United States v.
Velasquez-Mercado, 872 F.2d 632, 635 (5th Cir.), cert. denied, 493
U.S. 866, 110 S.Ct. 187, 107 L.Ed.2d 142 (1989).
A district court is not required to find that all of the §
5K2.1 factors exist in order to impose an upward departure. United
States v. Ihegworo, 959 F.2d 26, 29 (5th Cir. 1992). "The only
'mandatory' language in the section is that the judge 'must'
consider matters that 'normally distinguish among levels of
homicide,' such as state of mind." Id. In this case, the court
specifically stated that the mandatory factors were taken into
account. The court's conclusion that although Davis did not
consciously intend to kill Overby his conduct was such that he
should have anticipated that a serious injury or death could result
from his conduct shows that relevant factors under § 5K2.1 were
of conviction...already reflects the risk of personal
injury.
USSG § 5K2.1, p.s. (1993).
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thoroughly considered.
In addition, we find that there is no merit to Davis'
contention that the consecutive sentences he received for the
firearm counts adequately took into account Overby's death. Davis
was not charged with having used a firearm in the Lady Luck Fina
station where Overby was robbed. Even if he had been convicted of
using a firearm during that robbery, the Sentencing Guidelines and
the firearm statue do not preclude an upward departure based on a
resulting death.3 Such an upward departure is specifically
authorized by § 5K2.1. AFFIRM.
3
See USSG § 2B3.1 and 18 U.S.C. § 924.
6