United States v. Rose

Citation891 F.3d 82
Decision Date30 May 2018
Docket NumberDocket No. 17-689,August Term, 2017
Parties UNITED STATES of America, Appellee, v. Floyd ROSE, Defendant–Appellant, James Arberry, aka Stanley Woods, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Frank J. Balsamello (Anna M. Skotko, on the brief), Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Devin McLaughlin, Langrock Sperry & Wool, LLP, Middlebury, VT, for DefendantAppellant.

Before: Katzmann, Chief Judge, Walker, Circuit Judge, and Bolden, District Judge.*

Katzmann, Chief Judge:

Defendant-appellant Floyd Rose appeals the order of the United States District Court for the Southern District of New York (Oetken, J. ) denying Rose's motion to withdraw his plea of guilty to one count of Hobbs Act robbery, 18 U.S.C. § 1951(a). We now consider whether forcing someone to withdraw money from an ATM and then stealing the money has a sufficient effect on interstate commerce to support jurisdiction under the Hobbs Act. Concluding that it does, we affirm the judgment of the district court.

BACKGROUND 1

At around 9:20pm on June 10, 2015, a soon-to-be robbery victim deposited money into his account at a Citibank located on West 32nd Street in Manhattan. A short time later, defendant Floyd Rose asked the victim for directions to a church. James Arberry (Rose's codefendant) approached and said he could help them find the church. As they were walking, Arberry placed a hard object against the victim's back and told him that he was being robbed. Arberry and Rose, however, did not take any money or property from the victim's person. Instead, with Rose waiting on a bench, Arberry and the victim went to the Citibank, where the victim used an ATM to withdraw $900 from his account. Arberry and the victim returned to the bench, where the victim gave Rose the $900. The victim was then released.

At a hearing on June 24, 2016, Rose pled guilty, pursuant to a plea agreement, to one count of Hobbs Act robbery. As Rose concedes on appeal, the district court held a "thorough" plea colloquy that "address[ed] all the required aspects of Rule 11." Br. of Appellant at 3. During the hearing, Rose stated that "[o]n June 10, 2015, [he], with another, took a person's property by force and made them withdraw money from an ATM machine." App. 32. The government agreed that that was a sufficient factual basis for the plea and "proffer[ed] that the withdrawal from the ATM machine was from a bank that does business in interstate commerce." Id. The court accepted the plea.

On August 4, 2016, Rose, acting pro se , sent a letter to the district court claiming that his attorney, Robert Soloway, had coerced him into pleading guilty and seeking to withdraw his guilty plea. On August 23, 2016, Rose submitted a pro se motion and affidavit to the same effect. The affidavit asserted in passing that Rose was legally innocent because he did not use "force or violence" during the robbery. The district court appointed new counsel for Rose and held an evidentiary hearing at which the sole witness was Rose's original counsel. Soloway testified that he or an associate had met with Rose multiple times, that their relationship was uncontentious, that he thought the government had a "formidable" case, and that Rose had instructed him to get the best possible deal. Id. at 46–67. The district court credited Soloway's testimony, found that Rose had knowingly and voluntarily pleaded guilty, and denied Rose's motion to withdraw his guilty plea. The district court sentenced Rose to a 60–month term of imprisonment, substantially below his Guidelines range of 210 to 262 months. Judgment was entered the following day. This appeal timely followed.

DISCUSSION

On appeal, as below, Rose argues that the district court erred in refusing to allow him to withdraw his guilty plea. "[A] defendant may withdraw a plea of guilty after it is accepted, but before sentencing, only if the defendant can show a 'fair and just reason for requesting the withdrawal.' " United States v. Rivernider , 828 F.3d 91, 104 (2d Cir. 2016) (quoting Fed. R. Crim. P. 11(d)(2)(B) ). "To determine whether a defendant has met this burden, a court should consider: '(1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of the plea.' " United States v. Carreto , 583 F.3d 152, 157 (2d Cir. 2009) (quoting United States v. Schmidt , 373 F.3d 100, 102–03 (2d Cir. 2004) (per curiam) ). "The standard for withdrawing a guilty plea is stringent because society has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of our judicial procedures, but also increases the volume of judicial work, and delays and impairs the orderly administration of justice." Schmidt , 373 F.3d at 103 (internal quotation marks omitted).

Rose takes a different tack on appeal than he did in the district court, and no longer disputes that his plea was knowing and voluntary. He instead argues that he is legally innocent of Hobbs Act robbery because the robbery had an insufficient effect on interstate commerce.

Ordinarily, "[w]e review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion and any findings of fact in connection with that decision for clear error." Rivernider , 828 F.3d at 104. However, because Rose's legal innocence argument is raised for the first time on appeal, we review for plain error. See United States v. Torrellas , 455 F.3d 96, 103 (2d Cir. 2006). To prevail, Rose must "establish the existence of (1) an error; (2) that is plain; (3) that affects substantial rights; (4) and that seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Jones , 878 F.3d 10, 15 (2d Cir. 2017) (internal quotation marks omitted).

We find that the district court committed no error, let alone an error that was plain and affected Rose's substantial rights. The Hobbs Act provides as follows:

Whoever 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). Because "[t]he Hobbs Act prohibits robberies that affect interstate commerce 'in any way or degree,' " the "required showing of an effect on interstate commerce is de minimis ." United States v. Parkes , 497 F.3d 220, 230 (2d Cir. 2007) (quoting 18 U.S.C. § 1951(a) ). "[I]t is the law in our circuit that '[i]f the defendants' conduct produces any interference with or effect upon interstate commerce, whether slight, subtle or even potential, it is sufficient to uphold a prosecution under the Hobbs Act.' " United States v. Silverio , 335 F.3d 183, 186 (2d Cir. 2003) (per curiam) (quoting United States v. Perrotta , 313 F.3d 33, 36 (2d Cir. 2002) ).

We have found the jurisdictional element satisfied when the victim of a robbery is an individual, as opposed to a business, in the following circumstances:

(i) where the victim directly participated in interstate commerce; (ii) where the defendant targeted the victim "because of her status as an employee at a company participating in interstate commerce"; (iii) where the assets of a company engaged in interstate commerce were, or would have been, depleted as a result of the harm or potential harm, respectively, to the individual victim; or (iv) where the defendant targeted the assets of a business engaged in interstate commerce rather than an individual.

United States v. Wilkerson , 361 F.3d 717, 729 (2d Cir. 2004) (quoting Perrotta , 313 F.3d at 37–38 ). But "where the only connection to interstate commerce is that the victim works for a company engaged in interstate commerce, the link between the crime and interstate commerce is simply too attenuated to support federal Hobbs Act jurisdiction." Perrotta , 313 F.3d at 36.

Rose argues that his robbery of an individual victim lacked even a de minimis effect on interstate commerce. According to Rose, the victim was not himself engaged in interstate commerce, nor was the victim targeted because of his status as an employee of a firm engaged in interstate commerce. The money belonged to the victim, not Citibank, and thus no assets of a firm engaged in interstate commerce were depleted. Similarly, Rose argues that he was not targeting a firm's assets, but the individual victim's. Accordingly, although Rose concedes that he committed a state-law crime, he contends that did not commit a federal robbery.

We conclude that Rose's robbery falls within the scope of the Hobbs Act because Rose "targeted the assets of a business engaged in interstate commerce rather than an individual." Wilkerson , 361 F.3d at 729.2 Rose did not rob the victim of property on his person. Rose instead targeted the funds held in the victim's account at...

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