NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0625n.06
FILED
Case No. 16-4031 Nov 09, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
RAPHAEL D. PERSON, JR., ) OHIO
)
Defendant-Appellant. )
BEFORE: CLAY, ROGERS, and SUTTON, Circuit Judges.
CLAY, Circuit Judge. Defendant Raphael D. Person Jr. appeals his conviction and
sentence for three violations of the Hobbs Act, 18 U.S.C. § 1951(a), and two counts of using or
carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). For the reasons
set forth below, we AFFIRM Person’s conviction but REMAND for resentencing.
BACKGROUND
Beginning in 2011, Person and others conspired to rob people selling cars through
Craigslist, an online marketplace. They devised a scheme to respond to car advertisements, pay
for cars in cash, and then “rob the money back.” They committed two such robberies, one in
2011 and another in 2012.
Case No. 16-4031, United States v. Person
In the 2011 robbery, one of Person’s accomplices, Ricardo Velasquez-Flores, responded
to a Craigslist advertisement for a 2002 Acura RSX owned by Cedo Zecevic and his son,
Slobadan. The Zecevics later sold the Acura to Velasquez-Flores in a parking lot for $5,900 in
cash.
While the Zecevics drove home (in a different car), they were secretly followed by
Person and another accomplice, Mickey Velazquez. When the Zecevics got out of the car, they
were confronted by Person and Velazquez, who were carrying AR-15 assault rifles. The gunmen
claimed to be police officers and demanded money that they said had been obtained through a
drug sale. At one point, Person shot his rifle into the air, to intimidate the Zecevics. The
Zecevics handed over the $5,900 they had received for the Acura, and the robbers fled.
In the 2012 robbery, Velazquez responded to a Craigslist advertisement for a Nissan
350Z. The sellers, Mark Gillespie and his father, also named Mark Gillespie, met Velazquez and
another accomplice in a warehouse. The sellers were paid $18,000 in cash for the car. As they
left the warehouse, they were confronted by Person and his brother, armed with AR-15s. The
gunmen claimed to be Drug Enforcement Agents and told the Gillespies to turn over “the drugs”
and “the [drug] money.” One of the gunmen shot into the air to intimidate the Gillespies. Later,
Person “hit [the son] with the butt of the gun” on the “base of [the son’s] head and neck area.”
The blow caused the son “to stumble halfway to the ground,” but did not require medical
attention. The robbers took the $18,000 payment for the Nissan and fled.
Procedural History
In 2013, Person was charged with the following five crimes:
Count 1: Conspiracy to commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a)
(based on both robberies);
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Count 2: Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) (based on the 2011
robbery);
Count 3: Discharging a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c) (based on the 2011 robbery);
Count 4: Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) (based on the 2012
robbery); and
Count 5: Discharging a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c) (based on the 2012 robbery).
At trial, the jury heard testimony from three of Person’s co-conspirators (including
Velazquez and Velasquez-Flores), the Zecevics, the Gillespies, and law enforcement officials.
At the close of evidence, Person moved for acquittal under Federal Rule of Criminal Procedure
29, arguing that the government had “failed to prove or to present sufficient evidence of proof
from which any rational[] juror could conceive beyond a reasonable doubt that . . . Person . . . is
guilty of each and every count of the Indictment.” The district court denied the motion.
Before summation, the parties stipulated that
Craigslist . . . i[s] an internet service provider, headquartered in San Francisco,
CA, and on or about [the dates of the robberies], it was engaged in commercial
activities that affected interstate commerce, that is, Craigslist provided internet
users the ability to post items for sale on its website, which was on and/or within
the internet.
(R. 155, stipulation, PageID # 667.) The stipulation was read to the jury. Later, Person was
found guilty on all counts.
In calculating a guidelines sentencing range for the Hobbs Act offenses, the Presentence
Investigation Report (PSR) noted that Person had hit Gillespie (the son) with a gun.
Accordingly, the PSR applied a two-point offense-level increase for causing “bodily injury.” See
U.S.S.G. § 2B3.1(b)(3)(A). Person objected, arguing that there “was no indication that
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[Gillespie] suffered any bruising, swelling, soreness, headaches or other ailment as a result of the
strike to his head and neck . . . .” The district court overruled the objection, explaining that
the [application] note to the guidelines defines bodily injury as, quote, any
significant injury, and then it gives examples. For instance, it says an injury that
is painful or obvious or is of the type for which medical attention ordinarily would
be sought. . . .
Now, Mr. Gillespie testified at trial that he, quote, was hit with the butt of the
gun . . . [at] the base of the head and neck area. And . . . [that] it was enough to
stumble me halfway to the ground, end quote. He did not go to the hospital,
but . . . this evidence is sufficient to establish that Mr. Gillespie sustained a, quote,
significant injury. Being hit with the butt of a gun at the lower head and neck area
with sufficient force to compel him halfway to the ground would . . . result in a
painful and obvious injury.
(R. 195, sentencing tr., PageID # 1611–12.)
With the bodily-injury enhancement, Person’s final offense level for the Hobbs Act
offenses was 24. Given his criminal history category of IV, this yielded a guidelines range of
77 to 96 months’ imprisonment. Without the enhancement, his guidelines range would have
been 63 to 78 months’ imprisonment.
The district court sentenced Person to 86 months’ imprisonment on the Hobbs Act
counts. It also sentenced him to 10 years’ imprisonment on the first § 924(c) count and to
25 years’ imprisonment on the second § 924(c) count. Each § 924(c) sentence reflected the
mandatory minimum. See 18 U.S.C. § 924(c)(1)(A)(iii) (first § 924(c) conviction yields 10-year
mandatory minimum if a gun was discharged); § 924(c)(1)(C)(i) (second § 924(c) conviction
yields 25-year mandatory minimum). By statute, the sentences for the § 924(c) counts had to be
imposed consecutively to each other and to the sentence for the Hobbs Act counts.
§ 924(c)(1)(D)(ii). Consequently, Person’s aggregate sentence was 506 months’ imprisonment.
This timely appeal followed.
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ANALYSIS
I. Hobbs Act Offenses
There was sufficient evidence to support Person’s Hobbs Act convictions,
notwithstanding Person’s argument that the government did not introduce enough evidence to
prove the commerce element.
A. Standard of Review
“We review a challenge to the sufficiency of the evidence supporting a criminal
conviction de novo.” United States v. Collins, 799 F.3d 554, 589 (6th Cir. 2015). “In evaluating
such a challenge, we are tasked with determining ‘whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original)).
B. Analysis
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 or
attempts or conspires so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do anything in violation
of this section shall be fined under this title or imprisoned not more than twenty
years, or both.
18 U.S.C. § 1951(a).
The Act defines “commerce” as
commerce within the District of Columbia, or any Territory or Possession of the
United States; all commerce between any point in a State, Territory, Possession,
or the District of Columbia and any point outside thereof; all commerce between
points within the same State through any place outside such State; and all other
commerce over which the United States has jurisdiction.
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§ 1951(b)(3). The Act’s broad language “exercise[s] the full measure of Congress’s commerce
power,” while ensuring “that applications of the Act do not exceed Congress’s authority” under
the Commerce Clause. Taylor v. United States, 136 S. Ct. 2074, 2081 (2016).
To determine how far this commerce element extends—and what the Government
must prove to meet it—[a court should] look to [the Supreme Court’s] Commerce
Clause cases. . . . [Specifically,] there are three categories of activity that
Congress may regulate under its commerce power: (1) “the use of the channels of
interstate commerce”; (2) “the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the threat may come only
from intrastate activities”; and (3) “those activities having a substantial relation to
interstate commerce, . . . i.e., those activities that substantially affect interstate
commerce.” United States v. Lopez, 514 U.S. 549, 558–59 (1995). . . .
[A]ctivities in this third category—those that “substantially affect” commerce—
may be regulated so long as they substantially affect interstate commerce in the
aggregate, even if their individual impact on interstate commerce is minimal.
Id. at 2079.
The government proved the commerce element in this case by showing that Person’s
crimes involved the internet, which is a channel of interstate commerce. See, e.g., United States
v. Chambers, 441 F.3d 438, 450 (6th Cir. 2006) (stating that “channels of interstate commerce”
were “utilized” where defendant sent illicit images over the internet); United States v. Horne,
474 F.3d 1004, 1006 (7th Cir. 2007) (“eBay, the online auction site, is an avenue of interstate
commerce, like an interstate highway or long-distance telephone service.”); United States
v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006) (“[T]he Internet . . . is both an instrumentality and
channel of interstate commerce.” (quotation marks and citation omitted)). Specifically, the trial
evidence showed that Person and his accomplices chose targets based on Craigslist
advertisements. In addition, the parties stipulated that Craigslist is an online marketplace that
“provid[es] internet users the ability to post items for sale on its website.” Therefore, the jury
heard evidence that the robberies involved a channel of interstate commerce, i.e., the internet.
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II. Sentencing Enhancement for Causing “Bodily Injury”
The district court did not err in applying a two-point offense-level increase for causing
bodily injury.
A. Standard of Review
“In reviewing a district court’s application of the Sentencing Guidelines, this Court will
accept the findings of fact of the district court unless they are clearly erroneous and will give due
deference to the district court’s application of the Guidelines to the facts. A factual finding is
clearly erroneous when the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed. We review a district court’s legal
conclusions regarding the Sentencing Guidelines de novo.” United States v. Moon, 513 F.3d
527, 539–40 (6th Cir. 2008) (quotation marks, citations, and alteration omitted).
B. Analysis
The guidelines require a two-point offense-level increase if “any victim sustained bodily
injury . . . .” U.S.S.G. § 2B3.1(b)(3)(A). “‘Bodily injury’ means any significant injury; e.g., an
injury that is painful and obvious, or is of a type for which medical attention ordinarily would be
sought.” U.S.S.G. § 1B1.1 application note 1(B).
Here, Mark Gillespie (the son) testified that Person “hit [him] with the butt of the gun” at
the “base of the head and neck area.” He further testified that the hit made him “stumble
halfway to the ground,” but did not require medical attention. This Court has upheld
applications of the “bodily injury” guideline in similar circumstances. United States v.
Davenport, 30 F. App’x 338, 340 (6th Cir. 2002) (“The district court did not err in holding that a
blow to the head with a gun is ‘significant’ within the meaning of the sentencing guidelines.”);
United States v. Austin, 81 F.3d 161 (Table), 1996 WL 109500 at *12 (6th Cir. 1996) (“[I]t is
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‘obvious’ that someone struck on the head with a gun, unless their head is well-protected, will
experience some degree of pain. It is true that the proof presented at a sentencing hearing must
satisfy the preponderance of the evidence standard, but this standard is met where an assumption
of pain is perfectly rational under the circumstances.” (citation omitted)). Consequently, there
was no error here, especially given the due deference afforded to the district court’s application
of the guidelines to the facts. See Moon, 513 F.3d at 539–40.
Person argues that the district court improperly focused on his action (hitting Gillespie)
rather than its result (whether Gillespie was injured). But the district court did focus on the
result: it determined that Gillespie “sustained a . . . significant injury” within the meaning of the
guidelines. Person also cites various cases in which the relevant injury was more serious than
Gillespie’s, and cases from other circuits suggesting that the injury must last for a meaningful
period. But as shown above, this Court has upheld applications of the “bodily injury” guideline
in cases like this one. In addition, this Court has never held that a “bodily injury” must last for a
definable period of time.
I. Resentencing under Dean
Finally, remand is warranted in light of Dean v. United States, 137 S. Ct. 1170 (2017),
which held that district courts may consider the existence of § 924(c) mandatory minimums
when determining the sentences on other counts.
A. Standard of Review
Person did not argue in district court that his Hobbs Act sentence should take into
account his lengthy § 924(c) sentences. Therefore, his challenge is reviewed for plain error.
United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). “In reviewing for plain error, we
must consider whether there was plain error that affects substantial rights and that, in our
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discretionary view, seriously affects the fundamental fairness, integrity, or public reputation of
judicial proceedings.” Id.
B. Application
At the time of sentencing, binding precedent required sentencing courts to “determine an
appropriate sentence for the underlying crimes without consideration of the § 924(c) sentence.”
United States v. Franklin, 499 F.3d 578, 586 (6th Cir. 2007). Consequently, when determining
Person’s Hobbs Act sentence, the district court could not consider his § 924(c) sentences, which
totaled 35 years’ imprisonment.
While Person’s appeal was pending, however, the Supreme Court decided Dean,
abrogating the Franklin rule. Under Dean, a sentencing court can consider a defendant’s
§ 924(c) sentence when calculating any remaining sentences. Id. at 1175–78.
In light of Dean, we remand for resentencing. Person was sentenced to 35 years’
imprisonment on the § 924(c) counts. Had the district court known it could consider that period
of incarceration when determining Person’s Hobbs Act sentence, it may have sentenced Person
differently. For example, it might have determined that 35 years’ imprisonment on the § 924(c)
counts was sufficient to “protect the public” and “afford adequate deterrence,” thus warranting a
more lenient sentence on the Hobbs Act counts. Indeed, the Supreme Court made a similar
observation in Dean, explaining that
Dean committed the two robberies at issue here when he was 23 years old. That
he will not be released from prison until well after his fiftieth birthday because of
the § 924(c) convictions surely bears on whether—in connection with his
predicate crimes—still more incarceration is necessary to protect the public.
Likewise, in considering “the need for the sentence imposed . . . to afford
adequate deterrence,” [18 U.S.C.] § 3553(a)(2)(B), the District Court could not
reasonably ignore the deterrent effect of Dean’s 30–year mandatory minimum.
Id. at 1176. Consequently, resentencing is appropriate in light of Dean.
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CONCLUSION
For the reasons stated above, we AFFIRM Person’s conviction and the application of the
“bodily injury” guideline but REMAND for resentencing in light of Dean.
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