IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 93-1982
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
L. C. GIPSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
(February 21, 1995)
Before SMITH and BARKSDALE, Circuit Judges, and FITZWATER,*
District Judge.
JERRY E. SMITH, Circuit Judge:
I.
In October 1992, L.C. Gipson and some of his friends robbed
and attempted to rob several franchise fried chicken restaurants in
Fort Worth. In January 1993, Gipson was charged in a seven-count
indictment with conspiracy under 18 U.S.C. §§ 1951 and 1952, three
substantive counts of obstructing interstate commerce under §§ 1951
and 1952, and three counts of using or carrying a firearm during a
*
District Judge of the Northern District of Texas, sitting by
designation.
crime of violence in violation of 18 U.S.C. § 924(c).1
Gipson was convicted at a jury trial of all seven counts. The
district court sentenced him to 210 months on each of counts 1, 2,
4, and 6, to run concurrently; 60 months on count 3, to run
consecutively to the sentences on counts 1, 2, 4, and 6; 240-month
terms on each of counts 5 and 7, to run consecutively to all other
counts in the indictment; a concurrent three-year term of super-
vised release on counts 1 through 7; and the $350 mandatory special
assessment. Gipson appealed, challenging the sufficiency of the
indictment's allegation of an effect on interstate commerce and
several aspects of the district court's application of the
Sentencing Guidelines.
II.
A.
Gipson asserts that the government failed to charge in the
indictment that his crimes affected interstate commerce, and
therefore failed to show jurisdiction under Stirone v. United
States, 361 U.S. 212, 218 (1960). At the very least, Gipson
claims, the government should have been required to provide a bill
of particulars specifying the factual basis for the interstate
commerce connection and therefore for federal jurisdiction.
The indictment charged Gipson with Hobbs Act violations,
specifying that he had robbed several franchise fried chicken
1
Each of the firearm counts flowed from the same robbery as one of
the Hobbs Act counts.
2
restaurants, and asserted, in the language of the Hobbs Act, that
these robberies had affected interstate commerce.2 We review the
sufficiency of an indictment de novo, finding it constitutionally
sufficient if it embraces each prima facie element of the charged
offense, notifies the defendant of the charges, and provides him
with a double jeopardy defense against future prosecutions. United
States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993), cert. denied,
114 S. Ct. 1124 (1994).
This circuit has upheld indictments worded like the one at
issue. In a RICO context, we explained:
In this indictment, an explicit discussion of the
enterprise's effect on interstate commerce would contrib-
ute virtually nothing to defendants' understanding of the
nature of the offenses charged. . . . We find no indica-
tion . . . that defendants were surprised or in any way
prejudiced by the generality of the interstate commerce
allegation or evidence subsequently introduced to
establish it. The indictment was, therefore, sufficient.
United States v. Diecidue, 603 F.2d 535, 547-48 (5th Cir. 1979),
cert. denied, 445 U.S. 946 (1980). Later, we applied the Diecidue
analysis to a Hobbs Act violation:
Diecidue is not deciduous, it lives on as perennial
precedent until pruned by higher authorities. The ratio
decidendi of the "non-deciduous" Diecidue controls our
decision here. An indictment which alleges the inter-
state commerce element of a federal offense in conclusory
terms, without setting forth evidentiary detail, is not
insufficient.
United States v. Williams, 679 F.2d 504, 509 (5th Cir. 1982), cert.
denied, 459 U.S. 1111 (1983).
2
The Hobbs Act counts charged, in relevant part, that defendants did
"knowingly and wilfully obstruct, delay, and affect commerce and attempt to
obstruct, delay, and affect commerce by robbery."
3
Gipson argues that we should not follow Diecidue and Williams
because they conflict with Stirone and United States v. Summers,
598 F.2d 450 (5th Cir. 1979). He is mistaken.
In Summers, we were concerned with whether the jury charge on
interstate commerce usurped the jury's factfinding authority;
sufficiency of the indictment was not at issue. In Stirone, a
variance between the pleading and proof at trial had allowed the
defendant to be convicted on a different theory of the effect on
interstate commerce from the one alleged in the indictment.
Stirone, 361 U.S. at 218 ("[W]hen only one particular kind of
commerce is charged to have been burdened, a conviction must rest
on that charge and not another, even though it be assumed that
under an indictment drawn in general terms a conviction might rest
upon a showing that commerce of one kind or another had been
burdened.") (emphasis added). Gipson's argument is foreclosed by
our holdings in Diecidue and Williams.
We find Gipson's alternative argument))that the government
should have been required to provide a bill of particulars))to have
been abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993) (holding that issues raised but not briefed on appeal
are considered abandoned). At any rate, a refusal to grant a bill
of particulars constitutes reversible error only if the "defendant
was actually surprised at trial and thereby incurred prejudice to
his substantial rights." Williams, 679 F.2d at 510. Gipson has
failed to make any allegation of surprise or prejudice.
4
B.
At the age of seventeen, Gipson was convicted, as an adult, of
two counts of aggravated robbery in Texas court. On each convic-
tion, he received a sentence of greater than one year and one
month. Gipson argues that the court erred by including theses
sentences, imposed on December 16, 1981, in the calculation of his
status as a career offender under U.S.S.G. § 4B1.1. Specifically,
Gipson argues that the court wrongly applied § 4A1.2(e)(1) to his
prior convictions where § 4A1.2(e)(4) was controlling.
As Gipson's minority convictions fall within the plain
language of § 4A1.2(d)(1), § 4A1.2(d)(2) simply is not relevant.
Guideline § 4A1.2(d)(1), applying to "offenses committed prior to
age eighteen," adds three points to the criminal history score for
each time a defendant was convicted as an adult (as Gipson was) and
received a sentence of imprisonment exceeding one year and one
month (as Gipson did). Section 4A1.2(d)(2), which Gipson argues
should be applied through § 4A1.2(e)(4), plainly pertains only to
minority convictions not covered by § 4A1.2(d)(1) (e.g., juvenile
convictions or convictions for which defendant received a sentence
of one year and one month or less). The applicable time period for
Gipson's juvenile Texas aggravated robbery convictions is therefore
fifteen years, as specified in § 4A1.2(e)(1). Accordingly, the
district court did not err in considering these minority convic-
tions in the calculation of Gipson's criminal history score.
5
C.
Gipson argues that the court violated the Ex Post Facto Clause
by not applying the 1991 version of § 4B1.2(3). Gipson was
sentenced on October 20, 1993. Accordingly, the 1992 Guidelines,
effective from November 1, 1992, until October 31, 1993, are
applicable to his convictions absent an ex post facto problem.
United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.), cert.
denied, 114 S. Ct. 170 (1993). Gipson claims that an ex post facto
problem exists because his prior robbery convictions, all sustained
on the same date, would not have counted as separate convictions
under the 1991 version of § 4B1.2(3).
Gipson is mistaken. The 1991 Guidelines would not have
provided him with a shorter sentence. Both the 1991 and 1992
Guidelines require, for a defendant to be sentenced as a career
offender, that he be at least eighteen years of age, that the
instant offense be a crime of violence or a controlled substances
offense, and that he have at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. The sole difference between the two Guidelines
versions arises in their definitions of the term "two prior felony
convictions," as used in § 4B1.1.
Both definitions require that the defendant committed the
instant offense subsequent to sustaining at least two felony
convictions of any combination of crimes of violence and drug
offenses, and that the sentences for at least two of those felony
convictions are counted separately under the provisions of
6
§ 4A1.1(a), (b), or (c). The sole difference between the two
provisions is that while the 1991 Guidelines specify that "the date
that a defendant sustained a conviction shall be the date the
judgment of conviction was entered," the 1992 Guidelines state that
"the date that a defendant sustained a conviction shall be the date
that the guilt of the defendant has been established, whether by
guilty plea, trial, or plea of nolo contendre." U.S.S.G.
§ 4B1.2(3) (1991) and (1992), respectively.
A common-sense reading of § 4B1.2(3) reveals that the purpose
of the last sentence of both versions is intended to define the
word "sustained" in the first sentence of the paragraph. United
States v. Salazar, No. 93-1208, slip op. at 5 (5th Cir. Dec. 9,
1993) (unpublished). The last sentence of both versions simply
designates the event establishing a conviction for purposes of a
career-offender enhancement; it is not relevant to whether Gipson's
prior offenses constitute a single or multiple convictions for
Guidelines purposes.
D.
Gipson challenges the finding that his seven prior robbery
convictions were not "related" to one another under § 4A1.2
application note 3. For Gipson to qualify as a career offender,
two or more of his prior convictions must be counted separately
under § 4A1.1(a), (b), or (c). The Guidelines specify that
sentences flowing from related cases are to be treated as one
sentence for purposes of § 4A1.1(a), (b), and (c). U.S.S.G.
7
§ 4A1.2(a)(2).
Therefore, if all of his prior offenses were related to each
other, Gipson does not qualify as a career offender. Relatedness
is defined in both years' Guidelines in Application note 3 to
§ 4A1.2, which specifies:
Prior sentences are not considered related if they
were for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense).
Otherwise, prior sentences are considered related if they
resulted from offenses that (1) occurred on the same
occasion, (2) were part of a single common scheme or
plan, or (3) were consolidated for trial or sentenc-
ing. . . . Where prior related sentences result from
convictions of crimes of violence, § 4A1.1(f) will apply.
U.S.S.G. § 4A1.2, application note 3.
Gipson attempts to prove that his prior offenses were
consolidated by referencing § 4B1.2(3) of the 1991 Guidelines,
which states that a conviction is sustained on the date the
judgment of conviction is entered. He argues that because his
seven prior robbery convictions were all "sustained" on the same
day, they were "consolidated."
Gipson provides no legal support for this argument. All but
two of the robberies had separate case numbers when they went to
trial and judgment, which indicates that at most the two robberies
sharing the same case number had been consolidated for judgment.
Accordingly, we find that there were at least six unconsolidated
convictions, providing ample basis for a career offender enhance-
ment. Even if we agreed with Gipson that his cases had been
consolidated, we note that his career offender enhancement would
still stand on the basis of his minority convictions.
8
E.
Gipson argues that his convictions under 18 U.S.C. § 924(c)
and the Hobbs Act violate the Double Jeopardy Clause. While
candidly conceding that his argument is foreclosed by current Fifth
Circuit law, Gipson briefed the issue to preserve it for potential
Supreme Court review. We reiterate our holding that convictions
for both do not violate the Double Jeopardy Clause. See, e.g.,
United States v. Gonzalez, 40 F.3d 735 (5th Cir. 1994); United
States v. Martinez, 28 F.3d 444, 446 (5th Cir.), cert. denied,
115 S. Ct. 281 (1994).
AFFIRMED.
9