United States v. Rivera-Rivera

United States Court of Appeals
For the First Circuit
Nos. 05-2495, 05-2498

UNITED STATES OF AMERICA,
Appellee,

v.

JOSÉ RIVERA-RIVERA,
RAMÓN SÁNCHEZ-ROSADO,

Defendants-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lipez, Baldock* and Howard, Circuit Judges.

Linda Backiel for appellant Sanchez.
Mauricio Hernández-Arroyo for appellant Rivera.
Timothy R. Henwood, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, and Germán A.
Rieckehoff, Assistant United States Attorney, were on brief for
appellee.

February 9, 2009

*
Of the United States Court of Appeals for the Tenth Circuit,
sitting by designation.
 HOWARD, Circuit Judge. Appellants José Rivera-Rivera

("Rivera") and Ramón Sánchez-Rosado ("Sánchez") were convicted on

three counts stemming from the armed robbery of a lottery ticket

business in Caguas, Puerto Rico. Rivera was sentenced to 415

months' imprisonment – more than 34 years – and Sánchez was

sentenced to 397 months – just over 33 years. Both sentences

included a mandatory minimum term of 25 years for the use of a

firearm in relation to a violent federal felony after a previous

conviction for the same offense. See 18 U.S.C. § 924(c)(1)(C)(i).

By statute, the 25-year term was required to be imposed

consecutively to any other sentence. The appellants challenge both

their convictions and their sentences. They claim two trial

errors: (1) the key witness's in-court identification was tainted

by unnecessarily suggestive pretrial encounters, and (2) the

government failed to meet its burden of proving that the robbery

affected interstate commerce. They also assert multiple flaws in

their sentencing, including that the court improperly imposed the

25-year mandatory minimum based on facts not found by the jury
beyond a reasonable doubt. We affirm.
I. FACTUAL BACKGROUND

The facts of the robbery, as the jury could have found

them, are as follows. Shortly after 8 a.m. on the morning of

October 11, 2004, Carmelo Fonseca, the manager of the Muñiz

Gallery, a small shopping mall in Caguas, opened both the front and

rear entrances to the building, turned on the machines in the

mall's game center, and started walking toward the office of the

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lottery ticket business run by the Gallery's owner, Félix Muñiz.

At 8:20 a.m., before the mall was open for customers, two

individuals entered the mall through the back entrance. They

approached Fonseca and asked him where the lottery machines were

located, and then each pulled out a gun. One of them "loaded [his]

pistol and charged it," and, after warning Fonseca "not to act like

some tough guy, that they would shoot [him]," they directed Fonseca

to take them to the lottery business office on the second floor.

Although the men told Fonseca not to look at them, he testified
that he did not comply and that "every time I had a chance, I

looked at them." Fonseca reported that one of the individuals was

wearing a white shirt and the other wore a black shirt. On direct

examination, Fonseca indicated that both men were wearing

sunglasses and hats. On cross-examination, he testified that one

of them was wearing dark glasses and the other was wearing a hat.

One of the men was carrying a black plastic bag of the type used by

retail stores.

Meanwhile, across the hallway from where the three men
were having their initial conversation, Dr. Johanna Loyola, an

optometrist who had just arrived at her office, noticed the young

men with Fonseca and saw that one had a pistol. She immediately

called 911 to report a robbery, describing the perpetrators as

young men with dark glasses and caps, and also shouted to the

mall's maintenance employee, María, to get help because Fonseca was

being robbed. In her phone call to the police, Loyola stated that

one of the men did not seem tall, but looked strong.

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 María found a municipal police officer, Juan Soto,

outside the mall. Soto went in through the back entrance, which he

closed, proceeded to the front of the building, and padlocked the

front door. He then called for backup. By this time, the two

robbers had taken Fonseca upstairs, where he was forced to open the

office safe. Because he was nervous, Fonseca made several attempts

before he successfully opened the combination lock. The men then

ordered him to get face down on the floor, and they tied his arms

and legs with black ties taken from the black bag. They took a
cash box containing $8,770 from the safe, and a gun and photographs

from Muñiz's desk.

Outside the building, Puerto Rico Police Department

officers and municipal officers, including Soto and Caguas officer

Eliseo Martínez, had gathered in response to Soto's request for

backup and Loyola's call. Soto removed the padlock from the front

door and prepared to enter the building. He and Martínez testified

that they could see two individuals in the vicinity of Muñiz's

office. One wore blue jeans and a white t-shirt, had on dark
glasses and was carrying a black bag with shiny lettering; the

other wore a black shirt and blue jeans and was holding a

fisherman's cap in his right hand. Ignoring Soto's order to halt,

the men walked to the end of the hallway, found the back door

closed, and then walked back down the hallway trying the doors of

the businesses they passed. None were open, and the pair went into

the men's restroom at the end of the hall. As they entered the

bathroom, they lifted their shirts, and Soto saw pistol butts in

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their waistbands. The two men -- defendants Sánchez and Rivera --

came out several minutes later, at which point Martínez arrested

them.

In a trash can in the bathroom, Soto found the black bag

with the shiny letters, which contained some dollar bills; a metal

box; the fisherman's cap he had seen one of the men holding; some

black straps; and a .38-caliber revolver belonging to Muñiz. Soto

also found two loaded pistols inside a towel dispenser.

Fonseca was released by a municipal police officer and
shortly thereafter saw Martínez escorting the defendants, in

handcuffs, out of the building. Fonseca testified that he

immediately recognized them as the robbers. He saw the defendants

again about an hour later at the Caguas municipal police station,

where he had gone to file charges. Fonseca testified that he

happened to notice them as they walked back and forth inside a

holding cell. On cross-examination, Fonseca stated that he also

saw them in two locations at the courthouse where the defendants'

preliminary hearing was held: in a cell at the district attorney's
office and then "standing in front of the judge." Soto testified

that Fonseca also saw the defendants briefly as they were being

moved from the police station to the patrol car to be transported

to the courthouse.

Charges originally were brought against Sánchez and

Rivera under local law, but they were later dismissed and the men

were charged in a three-count federal indictment. Count One

alleged that the defendants aided and abetted each other in

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committing an armed robbery affecting interstate commerce in

violation of the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2. Count Two

charged the use of a firearm in connection with the robbery, in

violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Count Three

charged defendants with being felons-in-possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)and 924(a)(2), and alleged that

they had been convicted in 1998 for an armed bank robbery.

At trial, Fonseca was asked if the men who robbed him

were in the courtroom, and he identified the defendants. When
asked by the prosecutor and the court to explain the basis for his

conclusion that these were the men, he said that he "recognized

them because they were the ones that robbed me." For purposes of

Count Three, the felon-in-possession charge, the government and the

defendants stipulated that Rivera and Sánchez had a triggering

prior felony, and no evidence of the prior conviction was presented

to the jury.

At the end of the government's case, the defendants

sought suppression of Fonseca's identification testimony on the
ground that he had been exposed to unnecessarily suggestive pre-

trial confrontations with the defendants. The court refused to

suppress the statement identifying the defendants as the

perpetrators, but agreed to give the jury a specific instruction on

identification procedures. Defense counsel also moved for a

judgment of acquittal under Fed. R. Crim. P. 29, claiming that the

evidence was insufficient to support a finding of guilt. The court

denied the motion, observing that "there is overwhelming evidence

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of the fact that this robbery took place as testified to by the

witnesses." The jury subsequently found both defendants guilty on

all three counts.

On appeal, the defendants renew their challenge to

Fonseca's in-court identification and also seek reversal of their

conviction on Count One, the Hobbs Act charge, on the ground that

the government failed to present sufficient evidence that the

robbery affected interstate commerce.1 A reversal on Count One

would require reversal on the Count Two firearms charge as well
because proof of the Hobbs Act violation is an element of that

offense. See United States v. Jiménez-Torres, 435 F.3d 3, 8 n.1

(1st Cir. 2006).
II. IDENTIFICATION

The appellants claim that the district court erred in

refusing to suppress Fonseca's in-court identification, which they

assert was tainted by his impermissibly suggestive pre-trial

encounters with them shortly after the robbery occurred. As

described above, Fonseca came into contact with the defendants
three or four times before the preliminary hearing that took place

on the day of the robbery. It is undisputed that he saw them at

the mall shortly after they were arrested and handcuffed, although

the precise nature of that encounter was the subject of

1
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 or extortion . . .
shall be fined . . . or imprisoned . . . ." 18 U.S.C. § 1951(a).

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inconsistent testimony.2

There also is no dispute that the subsequent encounters

were unplanned: first, at the Caguas police station, when the

defendants were in a holding cell; next, according to Officer Soto,

as the defendants were being transported in a police car to the

courthouse; and, finally, in a holding cell near the district

attorney's office at the courthouse.

Although introduction of "impermissibly suggestive"

identification evidence may violate the Due Process Clause, see
Neil v. Biggers, 409 U.S. 188, 196-98 (1972); United States v.

Holliday, 457 F.3d 121, 125 (1st Cir. 2006), we have stated

repeatedly that identification evidence should be withheld from the

jury "only in extraordinary cases." Holliday, 457 F.3d at 125;

United States v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003);

United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996). A court

should suppress identifications made before trial and in the

courtroom on due process grounds only if it is "persuaded that

there was a very substantial likelihood of irreparable
misidentification." United States v. de Jesus-Rios, 990 F.2d 672,

677 (1st Cir. 1993) (citations and quotation marks omitted); see

also, e.g., Holliday, 457 F.3d at 125; Henderson, 320 F.3d at 100.

A two-step analysis is used to determine whether

suppression is appropriate. Holliday, 457 F.3d at 125; Henderson,

2
Fonseca testified that Officer Martínez showed him the
defendants and asked if "these were the ones," while Martínez
testified that he did not speak to Fonseca and that Fonseca, when
he saw the defendants, volunteered that they "'are the individuals
that robbed me.'"

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320 F.3d at 100. We consider first whether an impermissibly

suggestive identification procedure was used and, if so, whether

the identification was nonetheless reliable under the totality of

the circumstances. Id. Our review of the court's ruling on the

motion to suppress is plenary. Henderson, 320 F.3d at 99. We

review findings of fact for clear error. United States v.

Brennick, 405 F.3d 96, 99-100 (1st Cir. 2005). In the end, we will

affirm a district court's denial of a suppression motion if any

reasonable view of the evidence supports the evidence. United
States v. St. Pierre, 488 F.3d 76, 79 (1st Cir. 2007).

The identification issue first arose at the conclusion of

Fonseca's testimony, during which defense counsel apparently

learned for the first time that Fonseca had had four encounters

with the defendants after the robbery. Counsel moved to suppress

the identification. The court deferred ruling until after the

government completed its case-in-chief, and when he restated the

motion, counsel referred to the two-step inquiry set out above,

recounted Fonseca's several encounters with the defendants on the
day of the robbery, and argued that Fonseca's identification was

unreliable because it lacked several indicia upon which courts

usually rely.3 The district court denied the motion, and instead

announced its intention to specially instruct the jury on the

3
Defense counsel noted "[T]he opportunity of the witness to
view the criminal at the time of the crime, the witness' degree of
attention, accuracy and level of certainty, et cetera, the length
of time of the time of confrontation . . . ."

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identification issue.4 The court later provided the following

instruction:

In any criminal case, the government
must prove, of course, that the identity of
the persons who committed the alleged crime,
when a person's a defendant, as the person who
committed the crime . . . .
Again, I suggest that you ask yourself
a number of questions: Did the witness have
an adequate opportunity at the time of the
crime to observe the person in question? What
was the length of time that the person or the
witness had to observe the persons involved?
What were the prevailing conditions at the
time in terms of visibility or distance and
the like? Had the witnesses known or observed
the person at earlier times?
You may also consider the circumstances
surrounding any lack of identification,
including, for example, the manner in which
the defendant was presented to the witnesses
for identification, and the length of time
that elapsed between the incident in question
and the witness' identification of the
defendant.
After examining all the testimony and
evidence in the case, if you have a reasonable
doubt as to the identity of the defendant as
the perpetrators of the offense charged, you
must find the defendants not guilty.

Turning to the first step of our inquiry, we disagree
with the appellants' assertion that an impermissibly suggestive

episode occurred. The initial encounter at the mall was no more

than a quick confirmation at the scene of the crime that the

officers had detained the correct individuals. See Watson, 76 F.3d

4
The defendants did not specifically object to the court's
decision to instruct the jury, to the language of the instruction,
or to testimony from Martínez and Fonseca about Fonseca's out-of-
court recognition of them. Those particulars are thus not before
us on appeal, nor have the appellants raised these issues on
appeal.

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at 6 ("Show-ups that take place immediately after the offense has

been committed may be necessary in order to avoid the mistaken

apprehension of the wrong person."). Whether Martínez asked for

the confirmation or whether Fonseca volunteered that he recognized

the defendants does not change the nature of that exchange.

Although the appellants argue that the need for an on-the-scene

identification is diminished when the police already have made

their probable cause determination and arrested suspects, the

appellants have also sought to cast doubt on their culpability by
asserting that other individuals had the opportunity to enter the

mall. Thus, notwithstanding any "inherent element of

suggestiveness" in such a confrontation, the quick and informal

confirmation that took place here was appropriate for the

circumstances. See Watson, 76 F.3d at 7 ("Here, the crime was very

fresh, the police not suggestive, and had [the defendant] not been

the assailant, [the victim] could easily have said so.").

Fonseca's later views of the defendants undoubtedly reinforced his

original impression, but they were chance encounters that had
marginal significance given the identification at the scene of the

crime.

Although our conclusion that no impermissibly suggestive

procedures took place "eliminates appellants' due process

arguments" Watson, 76 F.3d at 10, we note briefly that our review

of the evidence assures us that Fonseca's in-court identification

was reliable. The five factors to be considered in assessing

reliability are "(1) the opportunity of the witness to view the

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criminal at the time of the crime; (2) the witness' degree of

attention; (3) the accuracy of the witness' prior description of

the defendant; (4) the level of certainty demonstrated by the

witness at the confrontation; (5) the length of time between the

crime and the confrontation." Henderson, 320 F.3d at 100 (citing

Neil, 409 U.S. at 199-200).

Here, Fonseca initially observed the defendants face-to-

face, at a close distance, as they approached him. He testified

that, during the robbery, he looked at them every time he had the
chance and did so four or five times. His physical description of

their appearance when he first saw them -- including the wearing of

a fisherman's cap and sunglasses -- coincided with Dr. Loyola's

observations. The details he recalled about the robbery, including

that each had a gun, were consistent with the evidence that was

later recovered in the bathroom from which the defendants exited.

Although Fonseca's unquestionable nervousness caused him to fumble

with the combination lock, his recollection of detail reflects

attentiveness to his surroundings.
None of this evidence, which was derived from Fonseca's

experiences during and in the immediate aftermath of the robbery,

could have been mistakenly based on his post-robbery exposures to

the defendants. Moreover, both Fonseca and Martínez testified that

when Fonseca first saw the defendants after the crime -- an

encounter we already have deemed permissible -- his recognition of

them was immediate. Given that reaction, we are confident that the

subsequent encounters had little, if any, impact on the level of

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certainty of his in-court identification. Finally, as to the fifth

factor, the length of time between the crime and the in-court

identification, the six-month span here is de minimis compared to

other cases. Cf. Henderson, 320 F.3d at 101 (upholding in-court

identification despite passage of two and one-half years after

crime); United States v. Flores-Rivera, 56 F.3d 319, 331 (1st Cir.

1995) (seven-year gap between crime and identification permissible

where other factors were persuasive). In sum, "we cannot say that

under all the circumstances of this case there is a very
substantial likelihood of irreparable misidentification. Short of

that point, such evidence is for the jury to weigh." Manson v.

Brathwaite, 432 U.S. 98, 114 (1977), quoted by Henderson, 320 F.3d

at 100. We therefore find no error in the district court's denial

of the appellants' motion to suppress Fonseca's identification

testimony.
III. THE HOBBS ACT

The appellants make two arguments related to the Hobbs

Act.5 First, they contend that their convictions on Counts One and
Two must be reversed because the government failed to introduce

sufficient evidence that their robbery of the lottery business

affected interstate commerce within the meaning of the Hobbs Act.

The evidence was insufficient, in their view, because the

5
As noted earlier, Count One explicitly charged a Hobbs Act
violation, while the firearms charge in Count Two is premised on
the use of a firearm in connection with that crime. See 18 U.S.C.
§ 924(c)(1)(A) (providing enhanced penalty when a firearm is used
"during and in relation to any crime of violence . . . for which
the person may be prosecuted in a court of the United States").

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government failed to prove that the lottery business was engaged in

interstate commerce.6 Second, the appellants contend that the

district court improperly instructed the jury on the Hobbs Act

charge. Because neither of the appellants' preserved these claims

below, we review both for plain error.7 United States v. Griffin,

524 F.3d 71, 76 (1st Cir. 2008). Accordingly, appellants must show

6
Arguably, the appellants have waived the argument that the
government failed to produce sufficient evidence that the lottery
business was engaged in interstate commerce. In their opening
briefs, the appellants appear to concede that the lottery business
was engaged in interstate commerce and focus instead on the
prosecution's "burden to prove the impact" of the robbery on
interstate commerce. The appellants both argue "[u]nlike statutes
that make it a federal offense to possess a[] weapon that has at
one time traveled in interstate commerce, the Hobbs Act requires
some proof of impact. It was totally lacking here." In their
reply briefs, however, the appellants switch gears. That the
robbery had a "de minimis impact" on interstate commerce, the
appellants observe, "is not in dispute here." Rather, the
appellants contend that at issue "is the adequacy of the proof that
[the lottery business] was, in fact, engaged in interstate
commerce, rather than the adequacy of the proof of impact."
We have made clear that arguments that make their debut in a
reply brief are deemed waived. United States v. Vanvliet, 542 F.3d
259, 264 (1st Cir. 2008) (citing United States v. Marti-Lon, 524
F.3d 295, 299 n.2 (1st Cir. 2008)). Nevertheless, because the
waiver issue is a close one, we will address the appellants'
argument on the merits.
7
We note that although the appellants did move for a judgment
of acquittal under Rule 29 at the close of the government's case,
neither did so on the basis that the government failed to present
sufficient evidence that the lottery business was engaged in
interstate commerce. Rather, counsel for the appellants contended
that "there is insufficient evidence for the robbery, [and] the
firearm." See United States v. Upham, 168 F.3d 532, 537 (1st Cir.
1999) (applying plain error standard or review because although
"[appellant] did move for a judgment of acquittal [he] did not
raise this [particular] request or objection"); see also United
States v. Pena-Lora, 225 F.3d 17, 26 & n. 5 (1st Cir. 2000) (citing
United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir. 1993)).
The district court denied the Rule 29 motion, commenting that
"[T]here is overwhelming evidence of the fact that this robbery
took place as testified to by the witnesses."

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an error that was plain, (i.e., obvious and clear under current

law), prejudicial (i.e., affected the outcome of the district court

proceedings), and that seriously impaired the fairness, integrity,

or public reputation of the judicial proceedings. Id.
A. Sufficiency claim

To successfully prove the robbery violated the Hobbs Act,

the government had to demonstrate that the robbery had an effect on

interstate commerce. Jiménez-Torres, 435 F.3d at 7. The effect

need not be significant. It is well established that "a de minimis
interference with commerce is enough to sustain a Hobbs Act

conviction." United States v. Cruz-Arroyo, 461 F.3d 69, 75 (1st

Cir. 2007); United States v. Capozzi, 347 F.3d 327, 335 (1st Cir.

2003) ("[T]o prove a Hobbs Act violation, the government must show

only that the . . . conduct created 'a realistic probability of a

de minimis effect on interstate commerce.'") (quoting United States

v. Butt, 955 F.2d 77, 80 n.2 (1st Cir. 1992)).8

Where a business9 has been robbed, the government may

demonstrate the robbery affected interstate commerce by

8
That such a minimal effect on interstate commerce implicates
the Hobbs Act reflects the statute's broad sweep. Congress, in
passing the Act, intended "'to use all [its] constitutional power
. . . to punish interference with interstate commerce by extortion,
robbery, or physical force.'" Jiménez-Torres, 435 F.3d at 7
(quoting Stirone v. United States, 361 U.S. 212, 215 (1960)).
9
We have noted that criminal acts directed at businesses have
a more obvious effect on interstate commerce than criminal acts
directed at individuals. See United States v. Rodriguez-Casiano,
425 F.3d 12, 15 (1st Cir. 2005) (citing United States v. McCormack,
371 F.3d 22, 28-29 (1st Cir. 2004)); see also United States v.
Quigley, 53 F.3d 909, 910 (8th Cir. 1995) ("Actions normally have
a lesser effect on interstate commerce when directed at individuals
rather than businesses.") (citations omitted).

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demonstrating that (1) the business engaged in interstate commerce,

and (2) that the robbery either depleted the assets of the

business, United States v. Rodríguez-Casiano, 425 F.3d 12, 15 (1st

Cir. 2005), or resulted in the business's temporary or permanent

closure. United States v. Cruz-Rivera, 357 F.3d 10, 14 (1st Cir.

2004) (expressing doubt "that there is any serious claim of a

constitutionally insufficient interstate commerce connection where

a robbery directly results in the shutting down of an interstate

business"). Here, there is no dispute about the asset depletion or
closure because the lottery business was robbed of nearly $9,000

and it remained closed on the day of the robbery. The focus, then,

is on whether the lottery business was engaged in interstate

commerce.

Previously, we have held that a business is engaged in

interstate commerce where the business purchased products from out-

of-state. In Jiménez-Torres, we concluded that a gas station was

involved in interstate commerce where, in the two months preceding

robbery, the station had purchased a substantial amount of gasoline
from outside of Puerto Rico. 435 F.3d at 8. In United States v.

Cruz-Arroyo, we concluded that the interstate commerce nexus was

satisfied in an extortion case where money paid to the defendant

was traceable to a Puerto Rico hospital that bought much of its

equipment from the United States. 461 F.3d 69, 76 (1st Cir. 2006).

And finally, in Capozzi we concluded that evidence that a car

dealer purchased vehicles from out of state was sufficient to

establish the interstate commerce nexus. 347 F.3d at 337.

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 Other cases establish that where a business serves out-

of-state customers, the business is engaged in interstate commerce.

For example, in United States v. Rodriguez, 218 F.3d 1243, 1244

(11th Cir. 2000), the Eleventh Circuit affirmed the defendant's

conviction under the Hobbs Act for robbing five motels. The Court

noted that the evidence presented established that all of the

motels robbed by the defendants registered guests from out-of-state

and that at least four registered guests from outside the country.

Id. at 1244. In holding that the robbery of the motels constituted
a Hobbs Act violation, the court concluded that "evidence that

[motels] have at some point registered guests from out-of-state is

sufficient to establish their connection to interstate commerce."

Id. at 1245; see also United States v. Pearson, 508 F.2d 595, 596-

97 (5th Cir. 1975) (holding that the government's evidence,

consisting of 1,000 guest registration cards from a large hotel,

was sufficient to establish that the defendant robbed a hotel that

was engaged in interstate commerce). And in Capozzi, we concluded

that one of the robbery victims was engaged in an "interstate drug
business" because he sold drugs repeatedly to out-of-state

customers. 486 F.3d at 726.

Here, the government introduced evidence that the lottery

business purchased goods from out of state and that the business

served tourists. The evidence with respect to the former consisted

of both a stipulation and testimony from Muñiz. The stipulation

established that the Muñiz Gallery used lottery machines that had

been manufactured in Rhode Island. The stipulation provided:

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 That Mr. Pedro Zayas is the local
representative of GTEC Corporation. Mr. Zayas
would testify that, pursuant to a professional
service agreement between the Department of
the Treasury of the Commonwealth of Puerto
Rico and GTEC Latin American Corporation,
which is a subsidiary of GTEC Corporation, a
lottery terminal including of the type they
usually use was installed at the business of
Mr. Muñiz on October 11, 2004, so that he
could sell online lottery, loteria
electronica, out of that business.
Mr. Zayas would also testify that this
machine was manufactured in Rhode Island and
from there was shipped to Puerto Rico for
installation here.
Muñiz further testified that the lottery machines and

"all of the parts and cables and everything . . . they come from

the States . . . . And the screens, the cables, the whole of the

inside of the game, I bring it from outside."

With respect to the lottery business's involvement in

tourism, Muñiz testified that the lottery business' customers

included tourists from outside of Puerto Rico.10

Even if we were reviewing the appellants' sufficiency

claim de novo,11 which we are not, we would be hard pressed to find

the evidence regarding the interstate commerce nexus insufficient

10
At trial, Muñiz was specifically asked, "Do you ever receive
clientele from outside of Puerto Rico?" He responded: "Yes, when
tourists come. People who live in the United States and they know
the business where the lottery tickets are sold, and they play in
the gaming room."
11
When reviewing a sufficiency claim de novo, "we examine the
evidence, both direct and circumstantial, in the light most
favorable to the prosecution and decide whether that evidence,
including all plausible inferences drawn therefrom, would allow a
rational factfinder to conclude beyond a reasonable doubt that the
defendant committed the charged crime." United States v. Cruz-
Rodriguez, 541 F.3d 19, 26 (1st Cir. 2008).

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to support the verdict. Both the stipulation and Muñiz's testimony

established that the lottery machines put out of service by the

robbery, as well as associated equipment, were interstate

purchases. See Jiménez-Torres, 435 F.3d at 8. In addition,

Muñiz's testimony that he "bring[s] [the equipment] from outside"

is sufficient to allow a jury to infer that he also purchased

equipment ancillary to the machines in the past and could do so in

the future. The jury's verdict also finds support in the fact that

at least some lottery customers were from the United States. See
Rodriguez, 218 F.3d at 1244. In sum, given the evidence adduced at

trial, the appellants' sufficiency claim cannot survive plain error

review.

The appellants, for their part, contend that the

government failed to present sufficient evidence that the lottery

business was engaged in interstate commerce. They appear to make

two arguments.

Their first argument is that the lottery business had to

be "regularly engaged in buying and selling products []
manufactured outside of Puerto Rico" in order to be engaged in

interstate commerce. In support of this argument, the appellants

cite Jiménez-Torres, 435 F.3d at 8 and United States v. Vega

Molina, 407 F.3d 511, 527 (1st Cir. 2005). In those cases, the

appellants maintain, the businesses at issue regularly bought and

sold out-of-state goods. Although the appellants never make the

point explicitly, they appear to suggest that the lottery

business's purchase of machines from Rhode Island was a one-off

-19-
event and that, as a result, the business was not "regularly

engaged in buying and selling products." There are at least two

problems with this argument.

First, even assuming that a business needs to be

"regularly engaged in buying and selling [out-of-state] products"

in order to be engaged in interstate commerce, the record can be

fairly read to indicate that the lottery business was so engaged.

As noted above, Muñiz testified that the lottery machines and "all

of the parts and cables and everything . . . they come from the
States . . . . And the screens, the cables, the whole of the inside

of the game, I bring it from outside." If we were to read this

testimony as indicating that the lottery business only dealt in

interstate products one time, we would effectively be viewing the

evidence in the light most favorable to the defendants. Cruz-

Rodriguez, 541 F.3d. It is well established, of course, that we

view the evidence in the light most favorable to the verdict. A

jury would need no special background knowledge or particular

evidence to infer that machines, games, screens and cables become
obsolete or are broken and must be replaced. The jury could have

validly inferred -- based on Muñiz's testimony -- that the lottery

business was regularly engaged in interstate commerce.

Second, the appellants' argument fails to address Muñiz's

testimony that some of the lottery business's customers were from

out-of-state. This evidence alone suffices to establish the

requisite interstate commerce nexus. See United States v.

Peterson, 236 F.3d 848 (7th Cir. 2001) ("[T]ypically in Hobbs Act

-20-
cases an owner or manager of the business establishment takes the

stand to testify that the business robbed either served out-of-

state customers or bought inventory manufactured out-of-state.")

(emphasis added) (citation omitted)).

The appellants say that it was the Puerto Rico Department

of Treasury, not the lottery business, that was engaged in

interstate commerce. The lottery business, they note, leased the

machines from the Puerto Rico Department of Treasury.

We are unpersuaded by this argument for two reasons.
First, the argument proceeds on a faulty premise -- that the

lottery business' only connection to interstate commerce was the

leasing of out-of-state machines from the Department of Treasury.

As we have just noted, the lottery business served out-of-state

customers, specifically, tourists coming from the mainland United

States.

Second, a business may be engaged in interstate commerce

indirectly. For example, if a business purchases its products from

an in-state supplier who, in turn, purchases its products from out
of state, that indirect link to interstate commerce suffices to

establish that the business is engaged in interstate commerce. See

United States v. Zeigler, 19 F.3d 486, 491 (10th Cir. 1994) ("[The

business] purchased goods from an [in-state] distributor who, in

turn purchased the goods it supplied to [the business] from outside

the state. This indirect link to interstate commerce is sufficient

to establish that [the business] was engaged in interstate

commerce."). The reason why an indirect link may establish the

-21-
requisite interstate nexus is that a crime that either closes or

depletes the assets of a business indirectly engaged in interstate

commerce could realistically affect interstate commerce. See

United States v. Elias, 285 F.3d 183, 189 (2d Cir. 2002) (rejecting

defendant's argument that the government was required to show that

some of the products sold by the business were purchased directly

from out-of-state suppliers and holding that "a robbery of a local

[business] may be said to affect interstate commerce if the robbery

impairs the ability of the [business] to acquire - whether from
out-of-state or in-state suppliers - goods originating out-of-

state"); United States v. Brown, 959 F.2d 63, 68 (6th Cir. 1992)

("Brown attempted to rob a tavern that . . . purchased goods from

local distributors who in turn purchased goods from outside of the

state. Had Brown's heist been successful, there is a realistic

probability that the depletion of the bar's assets would have

affected the amount of its purchases of beer having moved through

interstate commerce.").
B. Jury instruction claim

Next the appellants claim that the jury was improperly

instructed on the Hobbs Act charge. They focus on one sentence

within the judge's charge, which stated that in order to find

defendants guilty, the jury had to find that "the natural

consequences" of the defendants' acts "would affect commerce in any

way or in any degree." The appellants argue that the instruction

improperly asked the jury to find whether their acts would affect

commerce, as opposed to the correct formulation, which would have

-22-
asked whether the acts did affect commerce. In the absence of an

objection, we review for plain error. United States v. Paniagua-

Ramos, 251 F.3d 242, 246 (1st Cir. 2001).

In relevant part, the trial judge stated:

As I said before, it is against federal law to
obstruct, delay, or affect commerce by
committing robbery. For you to find the
defendants guilty of this crime, you must be
convinced that the government has proven each
of the following things beyond a reasonable
doubt:

. . .
Fourth, that the robbery affected commerce.

It is not necessary for you to find that the
defendants knew or intended that their actions
would affect commerce. It is only necessary
that the natural consequences of the acts
committed by the defendants as charged in the
indictment would affect commerce in any way or
any degree.

We reject the appellants' argument. Contrary to their

assertion, the trial judge specifically did instruct the jury that

it had to find "that the robbery affected commerce." Additionally,

the sentence targeted by appellants, when placed in its proper
context, is a correct statement of the law, wherein the government

is not required to prove that the defendants intended to affect

commerce. See Jiménez-Torres, 435 F.3d at 9-10 ("Jiménez may not

have intended to cause these effects, but his intent is irrelevant

to establish the commerce element of a Hobbs Act offense."). Our

task is to review jury instructions as a whole, to determine if

they adequately explain the law. United States v. Gonzalez-Velez,

466 F.3d 27, 35 (1st Cir. 2006). It is clear that this instruction

-23-
is in accord with the law.12 We therefore find no error in the

instruction.
IV. SENTENCING

The district court sentenced the appellants on Counts One

and Three to concurrent terms at the tops of their applicable

Guidelines ranges -- 115 months for Rivera and 97 months for

Sánchez. On Count Two, the court imposed the mandatory,

consecutive sentence of twenty-five years required by 18 U.S.C. §

924(c)(1)(C)(I), which applies when a defendant charged with using
a firearm during a violent felony has a previous conviction for

such conduct. The indictment, however, charged a violation of §

924(c)(1)(A)(ii), which mandates a seven-year consecutive minimum

sentence and is applicable when a defendant "brandishes" a firearm

in furtherance of a violent crime. The Presentence Investigation

Reports ("PSRs") originally recommended the seven-year term, but,

in response to a government objection, the PSRs were amended to

take the 1998 bank robbery into account. The amended PSRs thus

proposed the mandatory twenty-five year term for Count Two. At
sentencing, as they do on appeal, the defendants objected to the

change, asserting that the prior conviction should be viewed as an

element of the § 924(c) violation and thus a fact the jury needed

to find beyond a reasonable doubt. The trial court rejected their

argument, concluding that the twenty-five year term was a

12
While the instruction also follows verbatim the First
Circuit's Pattern Jury Instructions, See First Circuit Criminal
Pattern Jury Instructions § 4.16 (1998), these are only a guide,
and not mandated by this court. United States v. Tse, 375 F.3d
148, 157-58 (1st Cir. 2004).

-24-
sentencing enhancement that properly could be imposed by the

court.13 In addition, the appellants argue that various Guidelines

enhancements were impermissibly factored into the sentence on

Counts One and Three based on facts not found by the jury, and that

the district court failed to abide by 18 U.S.C. § 3553(a)'s call

that a sentence must be "sufficient, but not greater than

necessary" to achieve the objectives of sentencing.

We turn first to the 25-year consecutive sentence imposed

on Count Two, pursuant to 18 U.S.C. 924(c)(1)(C)(I), which mandates
a minimum sentence of twenty five years "[i]n the case of a second

or subsequent conviction under this subsection . . . ." We agree

with the district court's conclusion that this is a sentencing

enhancement, rather than an element of the offense, and thus a jury

determination on the "second or subsequent conviction" issue was

not required. Although we have not passed on this particular

13
An extended colloquy took place at Rivera's sentencing
concerning the need for the jury to hear evidence of the prior
conviction with respect to both Count Three, the felon-in-
possession charge, and to the harsher penalty on Count Two. The
court noted that the defendants had stipulated to the fact of a
prior conviction for purposes of Count Three. Rivera's counsel
acknowledged the stipulation, but asserted that the fact of the
stipulation was never presented to the jury, and the jury thus
lacked evidence on a crucial element of the charge. The court,
however, understood the stipulation to remove the prior conviction
from the case, allowing the jury to decide only whether defendants
had possessed firearms. If the jury found possession, the court's
view was that the stipulation would kick in to complete the
evidence necessary to support a guilty verdict on Count Three.
With respect to the twenty-five year term imposed on Count Two –
which was based on the same prior conviction – the court ultimately
ruled that the penalty was "an appropriate sentencing enhancement
under the circumstances." Both appellants explicitly declaim any
challenge to that portion of the sentence on Counts One and Three
that resulted from the stipulation.

-25-
subsection, we agree with the Second Circuit's conclusion that the

fact of a prior conviction is not an element of § 924(c). United

States v. Mejia, 545 F.3d 179, 207-08 (2d Cir. 2008)(citing United

States v. Campbell, 300 F.3d at 202, 212-13 (2d Cir. 2002).14 We

further note that this conclusion is in harmony with our

construction of the mandatory minimum sentence provision of the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), which is

routinely considered an enhancement suitable for judicial

determination. See, e.g., United States v. Diaz, 519 F.3d 56, 66-
67 (1st Cir. 2008); United States v. Lewis, 406 F.3d 11, 21 n.11

(1st Cir. 2005).

With that question resolved, the sentence at issue falls

squarely within the realm of Apprendi v. New Jersey, 530 U.S. 466

(2000), in which the Supreme Court held that prior convictions were

not among the sentence-enhancers that must be submitted to a jury

and proved beyond a reasonable doubt. Id. at 490; see also

Campbell, 300 F.3d at 212-13. In so doing, the Court left

undisturbed that portion of Almendarez-Torres v. United States, 523
U.S. 226 (1998), which treated prior convictions as sentencing

factors, rather than offense elements. Although appellants point

14
In analyzing a provision relating to machine guns, §
924(c)(1)(B)(ii), we recently concluded that knowing possession of
a machine gun is an element of the crime that must be proven to the
jury. United States v. O'Brien, 542 F.3d 921 (1st Cir. 2008). In
this case, however, the appellants do not make any allegations
regarding the possession of a machine gun. Rather they challenge
the fact of a prior conviction, which as we further explain infra,
the Supreme Court definitively has concluded is a sentencing
enhancement that need not be proven to a jury. See Almanderes-
Torres v. United States, 523 U.S. 226 (1998).

-26-
to Justice Thomas's concurring opinion in Shepard v. United States,

544 U.S. 13 (2005) that questioned the continuing viability of

Almendarez-Torres, "[w]e have ruled with a regularity bordering on

the monotonous, that given the explicit exception and force of

Almendarez-Torres, the rationale of Apprendi does not apply to

sentence-enhancement provisions based upon prior criminal

convictions." United States v. Ivery, 427 F.3d 69, 74-75 (1st Cir.

2005)(internal quotations and citations omitted).

Here, the district court had before it the appellants'
generalized stipulation that they had previously been convicted of

a felony punishable by more than one year as well as the PSRs which

specifically noted that the appellants had previously pled guilty

to using a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. §924(c)(1). The appellants attempt to shrug

off the yoke of Apprendi, Almendarez-Torres, and Mejia by arguing

that Shepard limits the district court's consideration to a

charging document, written plea agreement or plea colloquy. We

disagree. Shepard involved a determination whether certain
predicate offenses were "crimes of violence," within the meaning of

the ACCA. Given the factual inquiry involved, the Court limited

the type of fact-finding that could be permissibly conducted by the

trial judge. Shepard, 544 U.S. at 24-26. Here, by contrast, the

district court needed only to find that the prior convictions were

under section 924(c), a fact which was both undisputed by the

-27-
defendants15 and readily apparent from the PSR. Cf. United States

v. Brown, 510 F.3d 57, 74-75 (1st Cir. 2007) (district court may

not rely solely on factual assertions in PSR if defendant contests

them). Accordingly, we find no error in the district court's

application of 18 U.S.C. § 924 (c)(1)(C)(i) to Count Two.

Finally, we address the appellants' contention that the

district court failed to comply with 18 U.S.C. § 3553(a). In

sentencing appellants on Counts One and Three, which were properly

grouped for sentencing, the district court was bound to employ the
procedures we sketched out in United States v. Jimenez-Beltre, 440

F.3d 514 (1st Cir. 2006) by "engag[ing] in a sequential

determination of the guideline range, including any proposed

departures, followed by the further determination whether other

factors identified by either side warrant an ultimate sentence

above or below the guideline range." Id. at 518-19. The court

also must consider the sentencing factors set forth in 18 U.S.C. §

3553(a) and ultimately explain the reasoning behind the sentence,

even if the sentence is within the guideline range. United States
v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006). We

review the district court's interpretation of the Guidelines de

novo, and its factual findings for clear error. United States v.

Alli, 444 F.3d 34, 37 (1st Cir. 2006).

With respect to Sánchez, the district court, following

the PSR, started with a base offense level of 20. U.S. Sentencing

15
The appellants disputed many aspects of the PSR, but neither
one disputed that his predicate conviction was, in fact, for
violating 18 U.S.C. § 924(c).

-28-
Guideline Manual § 2B3.1 (2004). Upward adjustments were added for

physical restraint of the victim (two points), making a death

threat (two points), theft of a firearm (one point), and loss in

excess of $10,000 (one point). The resulting adjusted offense

level was 26. Sánchez was assigned three criminal history points

for his prior conviction, two because the subject offense occurred

while he was on parole, and one because it occurred less than two

years after his release from prison. The six points placed Sánchez

in Criminal History Category III, resulting in an advisory
Guideline range of 78 to 97 months. The district court imposed a

sentence at the top of that range, 97 months. Adding the 25-year

consecutive sentence from Count Two, Sánchez's sentence totaled 397

months.

Rivera's sentencing calculation was different in only one

respect. His record included an additional conviction which led to

seven criminal history points, placing him in Criminal History

Category IV, and yielding a guideline range of 92 to 115 months.

The court again chose the uppermost sentence within the range,
which, when combined with the 25-year sentence on Count Two,

yielded a sentence of 415 months.

As the appellants advance identical arguments, we treat

them together. First, relying on Apprendi, they argue that the

enhancements to their respective base offense levels needed to be

determined by a jury, beyond a reasonable doubt. We have

previously held, however, that Apprendi does not prohibit a

sentencing court from making factual findings that increase a

-29-
defendant's sentence as long as the sentence imposed is within the

default statutory maximum based on the jury's findings. United

States v. Butterworth, 511 F.3d 71, 77 (1st Cir. 200). Here, the

statutory maximum sentences on Counts One and Three are 20 and 10

years, respectively. See 18 U.S.C. §§ 1951(a) and 924(a)(2).

Thus, the court properly considered these enhancements.

Next the appellants each argue that the court erroneously

concluded that there was a total loss in excess of $10,000, as

required by U.S. Sentencing Guidelines Manual § 2B3.1(b)(7) (2004).
We disagree. In addition to the undisputed fact that $8700 was

stolen from Muniz, testimony also supported the finding that a

watch and gold key ring were taken, thus bringing the total loss to

over $10,000. It is of no moment that the items were recovered and

returned. See Id. § 2B3.1(7) ("loss" is defined as the value of

the property taken); see also United States v. Cruz-Santiago, 12

F.3d 1, 3 (1st Cir. 1993) (in larceny case, finding that permanent

and temporary takings are treated similarly for Guidelines

purposes). Accordingly, we find that the one-point enhancement
for a loss exceeding $10,000 was proper.

The appellants' final argument is that the district court

violated the principles of Booker by failing to consider the

factors contained in 18 U.S.C. § 3553(a), and thus effectively

treated the Guidelines as mandatory. Tied to this specific

argument is their claim that their sentences -- 415 months for

Rivera and 397 months for Sanchez -- violated both section

3553(a)'s language that sentences be "sufficient, but not greater

-30-
than necessary" and the "ultimate requirement of reasonableness."

Jimenez-Beltre, 440 F.3d at 518. We disagree.

We first note that the district court explicitly

indicated that the Guidelines were advisory during each appellant's

sentencing hearing. Next, as we have done in the past, we reject

the appellants' argument that section 3553(a)'s "sufficient, but

not greater than necessary" language is a mandate for leniency.

This language "is often cited by defendants as if it were an

admonition to be lenient (and to explain a lack of leniency)."
United States v. Navedo-Concepcion, 450 F.3d 54, 58 (1st Cir.

2006). However, "we do not think that the 'not greater than

necessary' language requires as a general matter that a judge,

having explained why a sentence has been chosen, also explain why

some lighter sentence is inadequate." Id. Here, the district

judge explained that the Guideline portion of Sánchez's sentence

was based in part on the fact that the instant crime was his second

armed robbery, that it was committed while on supervised release,

and that he has shown a violent and criminal behavior toward
society while lacking respect for the criminal justice system. The

trial court explained Rivera's sentence in similar terms.

In our view, these explanations are sufficient to satisfy

section 3553(a). This is not a situation where, for example, "the

district judge gave a one-sentence explanation" of the sentence,

without explaining the Guidelines calculations or referencing any

evidence that influenced the decision. See, e.g., United States v.

Garcia-Carasquillo, 483 F.3d 124, 132 (1st Cir. 2007) (remanding

-31-
for re-sentencing due to district court's inadequate sentence

explanation).16 We find no sentencing error.
V. CONCLUSION

The convictions and sentences are affirmed.

"Dissenting Opinion follows"

16
We note that the trial court is not required to state the
reasoning for imposing sentence at a particular point in the
guideline range, as neither appellant's range exceeded 24 months.
18 U.S.C. § 3553(c); Navedo-Concepcion, 450 F.3d at 56.

-32-
 LIPEZ, Circuit Judge, dissenting in part. I respectfully

disagree with the majority's conclusion that the evidence in this

case was sufficient to allow the jury to find that appellants'

robbery affected interstate commerce within the meaning of the

Hobbs Act. The interstate commerce element of the statute serves

the important function of establishing a federal interest in crimes

that are typically the concern of state criminal law, and it is

thus a critical component of a Hobbs Act violation. Although I

recognize that "a de minimis effect" will suffice to meet the

commerce element," United States v. Capozzi, 347 F.3d 327, 335 (1st

Cir. 2003), the evidence here falls short of even that modest

requirement. I therefore would reverse appellants' convictions on

Counts One and Two.17

17
As the majority notes, the defendants did not specifically
refer to the interstate commerce element in making their Rule 29
motion. The district court did not give them the opportunity to do
so. After the court ended a discussion concerning pretrial
identification by saying that it would give the jury a specific
instruction on identification procedures, the colloquy continued as
follows:
DEFENSE COUNSEL: Other than that, we pray the Court to
grant a Rule 29 and enter a not guilty verdict on this
particular case at this time, because I submit that there
is insufficient evidence for the robbery, the firearm,
and the fact –
COURT: I think there is overwhelming evidence of the fact
that this robbery took place as testified to by the
witnesses. Motion denied.
OTHER DEFENSE COUNSEL: We adopt the motion.
COURT: Anything else?
GOVERNMENT: [returning to identification issue]

In these circumstances, I would not apply plain error review. In
any event, I believe the government's failure to prove the
interstate commerce element constitutes plain error.

-33-
 There is no doubt that the lottery business was impacted

in ways that would establish an effect on interstate commerce if

the business were regularly involved in such commerce. As the

majority notes, the interstate commerce element of the Hobbs Act is

often proven in a robbery case by showing that the crime depleted

the assets of a business engaged in interstate commerce, see United

States v. Rodríguez-Casiano, 425 F.3d 12, 15 (1st Cir. 2005), or

forced such a business to close, even temporarily, see United

States v. Cruz-Rivera, 357 F.3d 10, 14 (1st Cir. 2004). Either of
those situations potentially affects the company's ability to

conduct business as usual, thereby "creat[ing] 'a realistic

probability'" of preventing transactions in interstate commerce.

Capozzi, 347 F.3d at 335 ("[T]he government must show only that the

. . . conduct created 'a realistic probability of a de minimis

effect on interstate commerce.'" (quoting United States v. Butt,

955 F.2d 77, 80 n.2 (1st Cir. 1992))); see also United States v.

DeCologero, 530 F.3d 36, 68 (1st Cir. 2008). I thus agree with the

majority that the lottery business's closure for a day and its loss
of $9,000 would cause the kind of impact required by our cases.18

18
The government has long prosecuted Hobbs Act cases in Puerto
Rico assuming that it must prove an impact on interstate commerce
rather than on commerce within the Commonwealth. In response to
the panel's request for supplemental briefing, the government now
argues that the interstate commerce requirement applies only to
crimes that occur in the fifty states and not to those committed in
other United States jurisdictions. See United States v. Liburd,
291 F. Supp. 2d 383, 385-86 (D.V.I. 2003) (holding the requirement
inapplicable to territories or possessions). It relies on the
Act's definition of "commerce" as including "commerce within . . .
any Territory or Possession of the United States." 18 U.S.C. §
1951(b)(3).
However, as the government points out, even if the full panel

-34-
 My problem is that the evidence did not show the

necessary involvement by the business in interstate commerce. To

be sure, Muñiz's enterprise used equipment – the lottery and gaming

machines – that were manufactured outside Puerto Rico. Missing

from the record, however, is any indication of future transactions

in interstate commerce. There was no evidence that Muñiz purchased

machines for the business regularly or planned to acquire one at

any point in the foreseeable future.19 Nor was there evidence that

the business engaged in any other interstate transactions in the
ordinary course of its business. Although it seems plausible that

the paper used in printing lottery tickets might come from outside

Puerto Rico and that the supply might need regular replenishing, or

that Muñiz might have had a maintenance contract with the Rhode

Island manufacturer to regularly service his machines, no evidence

agreed that it is unnecessary to prove an effect on interstate
commerce for Hobbs Act violations in Puerto Rico, that construction
of the statute would be inapplicable in this case because the
charges were brought, and the jury was instructed, based on the
interstate commerce requirement. See McCormick v. United States,
500 U.S. 257, 270 n.8 (1991) ("Appellate courts are not permitted
to affirm convictions on any theory they please simply because the
facts necessary to support the theory were presented to the
jury."); Chiarella v. United States, 445 U.S. 222, 236 (1980)
("[W]e cannot affirm a criminal conviction on the basis of a theory
not presented to the jury."). Thus, even if I accepted the
government's new understanding of the Hobbs Act as it applies to
Puerto Rico, it would not affect my view of the sufficiency of the
evidence in this case. I therefore do not discuss the merits of
that argument.
19
Indeed, the evidence suggests that Muñiz did not even
purchase the lottery machines himself, but obtained them from the
Commonwealth's Department of the Treasury, which brought them to
Puerto Rico through an arrangement with the manufacturer. Because
I believe the interstate commerce element would not be satisfied
even if Muñiz had purchased the machines himself, I need not dwell
on this further complication.

-35-
of such dealings was presented. Thus, the record lacks proof of

future interstate purchasing by Muñiz's business on which the

robbery could have had an impact.20

The majority asserts that it is reasonable to infer that

the lottery business was engaged in ongoing interstate commerce

because "[a] jury would need no special background knowledge or

particular evidence to infer that machines, games, screens and

cables become obsolete or are broken and must be replaced." It

cites Muñiz's testimony that all of the equipment associated with
the machines – "the screens, the cables, the whole of the inside of

the game" – came from the United States mainland. But the Hobbs

Act requires proof that this particular robbery potentially impeded

the business's interstate dealings, see Capozzi, 347 F.3d at 336

("[T]he Hobbs Act 'ensure[s], through case-by-case inquiry, that

the [extortion or robbery] in question affects interstate

commerce.'") (quoting United States v. Lopez, 514 U.S. 549, 561

(1995)), and the possible purchase of replacement equipment at some

undefined point in the future does not suffice to establish that
nexus. Neither the business's closure for a day nor its loss of

cash proceeds can reasonably be presumed to affect a transaction

that may not occur for years.

20
I note my agreement with the majority that the interstate
commerce element would be satisfied if a business purchased its
inventory from an in-state supplier that obtained the products from
out of state. Such interstate activity, although indirect, is
nonetheless ongoing, and a robbery of the business would have the
same impact on the future purchase of out-of-state goods as it
would if the products were purchased directly from an out-of-state
source.

-36-
 The majority contends that reading Muñiz's testimony to

indicate that his business "only dealt in interstate products one

time" would be to view the evidence in the light most favorable to

the defendants, contrary to our obligation to view the testimony in

the light most favorable to the verdict. I am not suggesting,

however, that the jury could not reasonably infer that Muñiz at

some point would make additional purchases of machines and parts,

but only that the record contains no evidence of the frequency of

such purchases or whether any such transaction was anticipated in
reasonable proximity to the robbery. In the absence of such

evidence, it would be rank speculation for the jury to find that

this robbery had an impact on interstate commerce.

In relying on the lottery business's past acquisition of

equipment, without any evidence of future purchases, the majority

takes a significant step beyond the precedent it invokes. Implicit

in the cases is a requirement that the victim company's interstate

activity occur in the regular course of its business, such as when

a firm's stock in trade is a product acquired from an out-of-state
supplier or when, as in the case of a hotel, the business by its

nature depends on out-of-state customers. See, e.g., United States

v. Jiménez-Torres, 435 F.3d 3, 8 (1st Cir. 2006) (Puerto Rico gas

station purchased gasoline from a refinery in the Virgin Islands);

Rodriguez-Casiano, 425 F.3d at 14 (Puerto Rico businesses obtained

much of their inventory from mainland suppliers); United States v.

Hemingway, 108 Fed. App'x 83, 85 (4th Cir. 2004) (noting that

victim hotel was part of a national chain that received supplies

-37-
from out-of-state and that most of the hotel's guests were from

out-of-state); Capozzi, 347 F.3d at 337 (car dealership that bought

cars from out-of-state); United States v. Rodriguez, 218 F.3d 1243,

1244 (11th Cir. 2000) (per curiam) (robbery of motels); United

States v. Pearson, 508 F.2d 595, 596-97 (5th Cir. 1975) (per

curiam) (robbery of a hotel). This requirement makes sense. Where

the robbed establishment engages in interstate commerce on a

regular basis, an interstate impact can be presumed from the mere

fact that the crime occurred.
Thus, the majority misses what I see as a clear

distinction between businesses whose merchandise or supplies

include products regularly obtained by means of interstate

commerce, requiring repeated future transactions to replenish

inventory, and businesses whose only connection with interstate

commerce was the initial purchase of the materials or equipment

needed to set up the company. A robbery of the latter type of

business would potentially affect interstate commerce only

coincidentally, i.e., if a purchase of replacement equipment
happened to be imminent. When a business is involved in interstate

commerce every day, however, there is a "realistic probability"

that any depletion of assets or forced closure would have an effect

on interstate commerce. See, e.g., United States v. Hebert, 131

F.3d 514, 523 n.8 (5th Cir. 1997) ("[A] showing that the business

regularly buys goods from out of state allows an inference that the

robbery will impair a future purchase.").

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 The majority alternatively points to evidence that the

lottery business served tourists from out-of-state, relying on

cases involving motels and hotels to assert that evidence of past

out-of-state customers is enough of a nexus to interstate commerce

to satisfy the statutory requirement. The hotel context is not,

however, equivalent to the circumstances in this case. The hotel

industry focuses on attracting travelers from outside the local

area, and out-of-state tourists routinely book hotel or motel

accommodations from their home locations. In effect, out-of-state
guests are part of the "stock in trade" of a hotel business, and

many of those guests' interactions with the hotel can reasonably be

presumed to occur across state lines. In addition, hotels

routinely advertise their accommodations to residents of other

states. Thus, when the evidence shows that a hotel serves out-of-

state guests, a jury reasonably may infer that the business is

engaged in activities that implicate interstate commerce on a

regular basis, and there is a "realistic probability" that any

depletion of its assets would affect that commerce.21

21
The majority quotes the Eleventh Circuit's statement in
Rodriguez that evidence that the victim motels had "at some point"
registered out-of-state guests was enough to establish a connection
to interstate commerce. I do not understand that decision to
endorse a Hobbs Act conviction where the robbed business had only
a past relationship with interstate commerce. Rather, the fact
that the motel had previously served out-of-state guests allowed
the inference that its customary operations included such
customers. In other words, a jury reasonably could find based on
its clientele that the motel was regularly engaged in transactions
involving interstate commerce. See also Pearson, 508 F.2d at 597
(noting that "[t]he evidence established that this hotel
entertained a large number of out of state visitors, thus
establishing the required interstate nexus").

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 By contrast, there is no evidence in this case permitting

an inference that Muñiz's sale of lottery tickets to tourists

ordinarily involved interstate commerce, nor any evidence of "'a

realistic probability'" that interstate commerce was affected by

the robbery at issue here. See Capozzi, 347 F.3d at 335. A sale

of locally produced merchandise (here, the lottery ticket) does not

become an interstate transaction simply because the purchaser, who

is buying locally, happens to hail from out-of-state.

I recognize that, in enacting the Hobbs Act, Congress
intended "'to use all [its] constitutional power . . . to punish

interference with interstate commerce by extortion, robbery, or

physical force.'" Jiménez-Torres, 435 F.3d at 7 (quoting Stirone

v. United States, 361 U.S. 212, 215 (1960)). At the same time,

however, the Supreme Court's discussions of the Commerce Clause in

United States v. Lopez, 514 U.S. 549 (1995), and United States v.

Morrison, 529 U.S. 598 (2000), should give us pause before further

expanding its reach into traditionally local concerns. Indeed, the

Court in Morrison explicitly recognized the singular role of the
states with respect to violent crime: "[W]e can think of no better

example of the police power, which the Founders denied the National

Government and reposed in the States, than the suppression of

violent crime and vindication of its victims." Morrison, 529 U.S.

at 618; see also Lopez, 514 U.S. at 557 (noting that "the scope of

the interstate commerce power 'must be considered in the light of

our dual system of government and may not be extended so as to

embrace effects upon interstate commerce so indirect and remote

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that to embrace them . . . . would effectually obliterate the

distinction between what is national and what is local'") (citation

omitted).

In Capozzi, 347 F.3d at 335-36, we concluded that Lopez

and Morrison did not invalidate the de minimis effect standard for

Hobbs Act violations and replace it with a "substantially affects"

test because – unlike the statutes at issue in those cases – the

Hobbs Act includes a jurisdictional element that "'ensure[s],

through case-by-case inquiry, that the [extortion or robbery] in
question affects interstate commerce.'" Id. at 336 (quoting Lopez,

514 U.S. at 561). We observed that "Congress' inclusion of a

jurisdictional element in the Hobbs Act addresses the Lopez Court's

constitutional concern that congressional authority under the

Commerce Clause not become a 'general police power of the sort

retained by the States.'" Id. (quoting Lopez, 514 U.S. at 567).

The Supreme Court arguably distinguished crimes with a

jurisdictional element from the statutes it invalidated in Lopez

and Morrison because the interstate commerce element ensures the
presence of a federal interest – justifying federal prosecution –

in offenses that otherwise replicate traditional state crimes.

Although we concluded in Capozzi that the "de minimis effect"

standard continues to be sufficient to identify the federal

interest, that standard cannot be applied so loosely that the

interstate commerce element no longer serves to distinguish between

federal and state crimes. Otherwise, we risk turning every routine

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robbery into a federal offense. See Jiménez-Torres, 435 F.3d at

14-15 (Torruella, J., concurring).

In my view, that is what the majority has done here with

a de minimis effect analysis that reduces this concept to a

meaningless verbal incantation. Indeed, virtually every business

uses some item that was made in another state – perhaps a table or

a rug or paint on the walls. If speculation about future

replacement of such items suffices to establish the interstate

commerce nexus, the Hobbs Act would embrace virtually all local

robberies. Similarly, the happenstance that a tourist purchases

locally produced merchandise does not transform that purchase into

an interstate transaction. Otherwise, the robbery of a fruit

peddler's stand that is patronized by tourists becomes a Hobbs Act

violation. On the record before us, the majority's conclusion that

the jury could find a nexus between the defendants' robbery and

interstate commerce is an exercise in imagination that places this

case beyond the outer boundaries of our prior precedent. I cannot

agree to such an expansion of the law.

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