U.S. v. Battle, 01-3154.

• Decision Date: 08 May 2002
• Docket Number: No. 01-3154.,01-3154.
• Citation: 289 F.3d 661
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Jermaine BATTLE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 661

289 F.3d 661

UNITED STATES of America, Plaintiff-Appellee, v. Larry Jermaine BATTLE, Jr., Defendant-Appellant.

No. 01-3154.

United States Court of Appeals, Tenth Circuit.

May 8, 2002.

Vicki Mandell-King, Assistant Federal Public Defender, Chief, Appellate Division (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for Defendant-Appellant.

Lanny D. Welch, Assistant United States Attorney (James E. Flory, United States Attorney, D. Blair Watson, Assistant United States Attorney, with him on the brief), Wichita, KS, for Plaintiff-Appellee.

Before SEYMOUR, ALARCON,^* and ANDERSON, Circuit Judges.

ALARCON, Circuit Judge.

Larry Jermaine Battle, Jr. ("Battle") appeals from the judgment of conviction and the sentence imposed for obstructing or delaying interstate commerce by committing a robbery in violation of 18 U.S.C. § 1951 ("Hobbs Act"), and for causing the death of Edward S. Lee by use of a firearm during the commission of a robbery in violation of 18 U.S.C. §§ 924(c)(1) and (j)(1).

He seeks reversal of the Hobbs Act violation on the ground that the robbery of a local convenience store is not an economic activity that has a substantial effect on interstate commerce. He appeals from the court's sentencing decision on the ground that it erred in imposing consecutive sentences, in computing the applicable Sentencing Guidelines range, and in denying him an additional reduction for acceptance of responsibility.

We affirm the judgment of conviction because we conclude that the Hobbs Act is violated even if the robbery of a convenience store does not have a substantial effect on interstate commerce. We also hold that the sentence imposed by the court was consistent with §§ 924(c)(1) and (j)(1) and the Sentencing Guidelines.

I

The evidence viewed in the light most favorable to the Government demonstrates that on March 29, 2000, Battle and Dius T. Lorance ("Lorance") entered Lee's Phillips 66, a gas station and convenience store, located in Wichita, Kansas that was owned by Edward S. Lee ("Mr.Lee") and his wife, Van Thu Ho ("Ms.Ho"). Battle and Lorance wore bandanas that covered their faces. At that time, Mr. Lee was behind the counter, and Ms. Ho was in a back room eating lunch. Battle was armed with a short barreled shotgun. He ordered Mr. Lee to give them the money in the cash register. While opening the cash register, Mr. Lee also pressed the alarm button to summon the police. Lorance jumped over the counter, took approximately $320.00, and then ran out of the store. Ms. Ho watched the robbery via a television monitor connected to the store's security cameras. She also activated the store's alarm system.

As Battle was backing away from the counter, he ordered Mr. Lee not to move. Mr. Lee did not move. Nevertheless, Battle fired the shotgun at Mr. Lee. He was struck in the right upper torso. As a result of the wounds he received from the shotgun blast, Mr. Lee died approximately three hours later.

The police officers who responded to the alarm and Ms. Ho's 911 call followed Battle's footprints to a house two or three blocks away where they arrested Battle. A search of the house revealed shotgun shells and currency. Along the footprint path, the officers found a sawed-off shotgun, gloves, and a bandana.

Battle was taken to the FBI Violent Crime Task Force office. When interrogated, he admitted that he had committed the robbery and had shot Mr. Lee. He refused to disclose the identity of his accomplice. He also stated that he fired the shotgun because Mr. Lee moved toward him.

Battle was convicted by a jury on two counts: (1) interfering with or obstructing interstate commerce by committing a robbery (in violation of the Hobbs Act), and (2) causing the death of Mr. Lee with a firearm during the commission of that robbery (in violation of 18 U.S.C. § 924(c)(1) and § 924(j)(1)). Battle was sentenced on May 9, 2001. The district court calculated Battle's sentence by grouping the two counts pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3D1.2(b), with a base offense level of 43. The district court then adjusted the base offense level by two points for acceptance of responsibility, yielding a total offense level of 41. It found that Battle was subject to criminal history category II. Battle was sentenced to serve consecutive sentences of 240 months in prison for the Hobbs Act violation and life imprisonment pursuant to §§ 942(c)(1) and (j)(1).

II

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. This court has jurisdiction over Battle's timely appeal pursuant to 28 U.S.C. § 1291.

III

Battle seeks reversal of the judgment of conviction on the ground that the Hobbs Act cannot be applied to the robbery of a local convenience store. He also contends that the district court erred in failing to instruct the jury that the Government has to persuade it that the robbery of a local convenience store had a substantial impact on interstate commerce.

The Hobbs Act provides in pertinent part:

"[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) (emphasis added).

This court has recently rejected contentions similar to Battle's in United States v. Morris, 247 F.3d 1080, 1085 (10th Cir. 2001). In Morris, this court held that "the fact that any robbery may have had only a de minimis effect on interstate commerce does not render regulation of that activity an unconstitutional exercise of congressional power." Id. at 1087.

The Government presented evidence that products sold to Lee's Phillips 66 for resale were produced outside of Kansas. Some of the money taken during the robbery would have been used to purchase products produced in other states. This interstate nexus satisfied the requirement of the Hobbs Act that interstate commerce be affected in "any way or degree" by a robbery. See United States v. Nguyen, 155 F.3d 1219, 1224 (10th Cir.1998) (applying the Hobbs Act where a local restaurant purchased products originating from out-of-state and the money taken during the robbery would have been used to purchase out-of-state items). The district court did not err in rejecting Battle's proposed jury instructions that stated that the Government was required to persuade the jury that the robbery of Lee's Philips 66 had a substantial effect on interstate commerce.

Battle forthrightly acknowledges that his challenge to the application of the Hobbs Act to the robbery of a local business "has been repeatedly rejected by different panels of this court." He also concedes that "[a]bsent an intervening change in the law, which is not present in this case, or en banc review, we cannot review the judgment of another panel of this court." United States v. Chanthadara, 230 F.3d 1237, 1260 (10th Cir.2000). Battle has properly preserved this issue only for possible en banc review. We must reject it based on the law of this circuit.

IV

Battle argues that the district court erred as a matter of law in sentencing him to consecutive sentences for violating the Hobbs Act and using a firearm that resulted in the death of Mr. Lee. He contends that Congress did not require that consecutive sentences be imposed for use of a firearm that results in the death of the victim during the commission of a Hobbs Act robbery. He also argues that multiple punishments under these circumstances violates the Double Jeopardy Clause. Because these questions were not presented to the district court, we must apply the plain error standard of review. United States v. Malone, 222 F.3d 1286, 1292 (10th Cir.2000). In applying the plain error standard we must first determine whether "there indeed be an `error.'" United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

A.

A district court has the discretion to impose concurrent or consecutive sentences where a defendant is convicted of separate crimes pursuant to 18 U.S.C. § 3584.¹ In exercising its discretion to impose consecutive sentences, a district court must state its reasons so that its decision may be meaningfully reviewed for abuse. United States v. Rose, 185 F.3d 1108, 1112-13 (10th Cir.1999). Here, the district court did not state its reasons for imposing consecutive sentences. This omission would, in certain cases, compel us to vacate the sentences and remand the case. See id. (holding that consecutive sentences must be vacated if an appellate court is unable to determine whether the district court abused its discretion). We are not, however, compelled to vacate the district court's sentencing decision if it was mandated by §§ 924(c)(1) and (j)(1) to impose consecutive sentences because Battle caused the death of a person through the use of a firearm during the commission of a crime of violence in violation of the Hobbs Act. Battle has failed to discuss the discretionary authority of a court to impose consecutive sentences pursuant to § 3584 and the requirement under Rose that the court state its reasons for doing so. Instead, Battle has assumed that the district court imposed consecutive sentences because it believed it was mandated to do so.

Battle contends that § 924(j)(1) "does not, by its express terms, require consecutive sentences." He argues that "[t]he language in § 924(j) refers to a § 924(c) violation, and not to that subsection's penalty provision." He further asserts that "[t]he structure of § 924 supports the view of § 924(j) as charging an aggravated crime different from § 924(c)." He maintains that because § 924(j) does not expressly incorporate the prohibition against the imposition of...