States v. Ferguson
| Citation | 211 F.3d 878 |
| Decision Date | 04 May 2000 |
| Docket Number | No. 99-10162,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,99-10162 |
| Parties | (5th Cir. 2000) UNITED STATES OF AMERICA,, v. AARON FERGUSON, |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Texas
Before King, Chief Judge, and Reavley and Stewart, Circuit Judges.
The defendant challenges the sufficiency of the evidence below and attacks the constitutionality of the federal "three strikes" sentencing provision. For the reasons assigned, we affirm.
Because this case involves multiple robberies committed during a two-month robbery spree, we briefly summarize the facts surrounding the robberies.
On November 25, 1997, two men approached a clerk at a Ramada Inn Limited Motel located in Mesquite, Texas. The two men asked about room vacancies and rates, and the clerk told them to fill out a registration form. While the clerk was on the phone, the taller of the two men pulled out a gun and told the clerk to be quiet and hang up the phone. When the clerk did not comply, the man hung up the phone for her. The taller man with the gun told the clerk to hand over the money. The other man instructed the clerk to open the cash drawer. The taller man went over the counter and picked up the money, They then left in a white Nissan, driving west on I-30. The robbery was recorded on video tape by security cameras. The clerk at trial identified Ferguson as one of the men who robbed her. The clerk also testified that a gun that was recovered from Ferguson's home looked similar to the gun that was used during the robbery.
On December 1, 1997, a man approached a bankteller at a Savings of America Bank teller window in Dallas and demanded the teller to give him money. The robber stated "I have a gun in my pocket and don't make me use it." The teller stated that she never saw the gun. The teller gave him approximately $693, and the robber exited the bank on foot. Although the bank had surveillance cameras, there was no tape of the robbery. The teller identified Ferguson from a pretrial photo array, and at trial.
On or about December 3, 1997, two men attempted to rob Owens Jewelry Store in Dallas. The robbers walked in, one asking to pawn a ring. When the attendant turn around, one of the robbers pulled out a gun and ordered the attendant on the floor. Another attendant went for a gun behind the counter and fired at the robbers. The robbers then exited the store taking nothing. Both attendants identified the weapon used by the robbers as a black Lorcin .380. One of the attendants stated that she did not get a good look at the robbers. The other stated that he also did not get a good look but could possibly identify the robbers if he saw them again. However, at trial he was unable to positively identify Ferguson as one of the robbers.
On December 8, 1997, a man entered an Alrenco Store in Dallas with a gun in his hands and told one of the salesperson to empty the cash drawer. The robber also demanded the salesperson to give him a tray of men's rings. The robbers took the rings and approximately $325, ordered everyone on the floor, and exited the store. The store-manager testified that the gun the robber used was a automatic pistol with a dark blue finish. Approximately one month after the robbery, the store-manager identified Ferguson from a pretrial photo array. At trial, the store-manager identified the weapon seized from Ferguson's apartment as being the same type that was used during the robbery. Although the trial occurred approximately one year after the robbery, the store-manager, when asked to identify the robber in the courtroom, pointed to Ferguson and stated, "that looks like the gentleman right there."
On December 22, 1997, a bank official at Guardian Savings Bank in Dallas, Texas, received a phone call from a man stating that he was interested in purchasing a certificate of deposit for a Christmas gift. After a short discussion, the man stated that he would be in later that afternoon. Later that day a man, later identified as Ferguson, came to the bank and the teller buzzed him in. The man sat down, placed a large black bag on the desk, and stated "don't make me have to use this." While patting his belly, he further stated "do we understand each other." When the teller hesitated, the man repeated, "Don't make me have to use this, do we understand each other." The teller gave the robber $2,965. The teller also noted small cuts on the robbers hands. The robber took the money and exited the bank. Surveillance cameras recorded the robbery. The teller was unable to give a positive identification of the robber from the photo array. Also, when the teller was asked at trial could she identify the robber in the courtroom, she stated, "No I don't think so." However, Ferguson's wife identified him as the robber on the surveillance video tape. She also testified that Ferguson was wearing bandages on his hands during the time frame of the robbery.
On January 2, 1998, two men pulled up in front of Rams Liquor Store in Dallas in a mid-size white car with no front license plate. The two men asked the clerk if he would cash checks for them. The clerk replied that he did not cash checks. One of the robbers then said, The clerk raised his hand, and one of the robbers took all of the money from the cash drawer. The robbers then exited the store. The store's surveillance camera captured the robbery. Ferguson's wife identified him in the surveillance tape. Although the clerk was unable to make a positive identification from the pretrial photo array, the clerk nonetheless, identified Ferguson at trial.
E. Hits Record Store incident
Approximately two days later on January 5, 1998, two men drove in a white car without a front license plate to Hits Records store in Dallas. The robbers left the car and went into the music store asking to see a compact disc ("CD"). When the clerk retrieved and rang the disc up on the cash register, one of the robbers pulled a gun from his back pocket and told the clerk to open the cash register. The robber took the money from the register and asked for more money. The clerk replied that there was no more money. The robber then asked about a safe, and the clerk responded that there was no safe. Afterwards, the robber threatened the clerk with the gun and told him to lie down on the floor. The robbers then left the store. When the officers arrived, it was discovered that in addition to the $35 taken, the robbers also took ten CDs. The police also traced the white car to Ferguson, and proceeded to his residence. They arrested Ferguson on a warrant for outstanding parking tickets. The search of his apartment yielded the CDs that were taken from the store, and a black Lorcin .380 pistol. Ferguson's wife stated that he picked her up in a white Nissan the day of the robbery, which had no front license plate.
On August 4, 1998, the government charged Ferguson in a sixteen count indictment with Hobbs Act robbery (18 U.S.C. 1951(a)), carrying a firearm during the commission of a crime of violence (18 U.S.C. 924(e)(1)), and bank robbery (18 U.S.C. 2113(a) and (d)). In October, the government filed a superceding indictment charging Ferguson with seven counts of Hobbs Act robbery, eight counts of carrying a firearm during the commission of a crime of violence, two counts of bank robbery, and one count of being a felon in possession of a firearm (18 U.S.C. 922(g)(1) and 924 (e)(1)). The government also filed notice advising that Ferguson was eligible for a mandatory life sentence pursuant to the federal "three strikes"sentencing provision (18 U.S.C. 3559) based on Ferguson's convictions for "serious violent felonies" in 1977, 1984, and 1985.1
In November 1998, the morning of trial, the government moved to dismiss counts 1-4 of the superseding indictment and tried Ferguson on the remaining counts. The jury returned guilty verdicts for all counts except nine and ten (Owens Jewelry Store incident). Ferguson moved for a directed verdict of acquittal, which was denied.
For the Hobbs Act and bank robbery convictions, the court sentenced Ferguson to life imprisonment for each count to run concurrently with each other and with the sentence for the felon in possession of a firearm conviction. Regarding the possession of a firearm during a crime of violence conviction, the court sentenced Ferguson to life imprisonment for each count to run consecutively to each other and to the life sentences for the Hobbs Act and bank robbery convictions. As to the remaining conviction for felon in possession of a firearm, the court sentenced Ferguson to fifteen years in imprisonment, with five years supervised release, and imposed restitution in the amount of $11,500 and $1,200 mandatory special assessment.2
Ferguson attacks his convictions and sentences on several grounds. First, he claims that the jury convicted him on insufficient evidence. Furthermore, he contends that the government failed to produce sufficient evidence to trigger the interstate jurisdictional component under the Hobbs Act. Finally, he argues that the "three strikes" federal sentencing provision is unconstitutional. We address each of his arguments in turn.
Ferguson moved for a judgment of acquittal at the close of the government's case, at the end of the trial, and after the verdict, thus preserving his sufficiency claims for appellate review. See United States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998). We review a district court's denial of a motion for a judgment of acquittal de novo. Id.; United...
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