U.S. v. Baylor, No. 07-3002.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Griffin
• Citation: 517 F.3d 899
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rajah BAYLOR, Defendant-Appellant.
• Docket Number: No. 07-3002.
• Decision Date: 26 February 2008

517 F.3d 899 UNITED STATES of America, Plaintiff-Appellee,
v.
Rajah BAYLOR, Defendant-Appellant. No. 07-3002. United States Court of Appeals, Sixth Circuit. Submitted: February 7, 2008. Decided and Filed: February 26, 2008.

[517 F.3d 900]

ON BRIEF: James M. Campbell, Akron, Ohio, for Appellant. Duncan T. Brown, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: SUHRHEINRICH, SUTTON, and GRIFFIN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court, in which SUTTON, J., joined. SUHRHEINRICH, J. (pp. 903-904), delivered a separate concurring opinion.

OPINION

GRIFFIN, Circuit Judge.

Following a jury trial in the United States District Court for the Northern District of Ohio, Rajah Baylor was convicted on one count of interfering with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and one count of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Baylor was subsequently sentenced to a term of 140 months of imprisonment. He now appeals his convictions, arguing that the requirement of a de minimis effect on interstate commerce under the Hobbs Act is unconstitutional in light of the Supreme Court's decision in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Baylor argues further that, even assuming that the de minimis standard is appropriate, the government failed to show that his activity had such an effect on interstate commerce. Finding each of Baylor's arguments to be devoid of merit, we affirm his convictions.

I.

On the evening of December 21, 2005, Little Caesar's manager Tina Martin was in the process of closing a Cleveland-area location of the chain pizza restaurant when a brick, thrown from the outside, shattered the glass of the front door. A man dressed in all black, with a hooded sweatshirt covering the top of his head and a mask covering his face, stepped forward and pointed a .38 revolver at Martin, demanding that she open the store's register. The man struck Martin on the head and left with $538. Cleveland police officers later pulled over a vehicle driven by Baylor's accomplice, Kevin Oliver, and arrested Baylor and Oliver, finding a gun, masks, and gloves on the floorboard of the vehicle. The police returned the suspects to the Little Caesar's restaurant, where Martin identified Baylor as her assailant.

Following a two-day trial, a jury convicted Baylor of interfering with commerce by robbery (Count One), in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and of using a firearm in relation to a crime of violence (Count Two), in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court then sentenced Baylor to a term of 56 months of imprisonment on Count One and 84 months on Count Two, to be served consecutively, for a total term of 140 months of imprisonment.

517 F.3d 901

II.

Baylor argues that in order to satisfy the jurisdictional element of the Hobbs Act, his activity must have had more than a de minimis effect on interstate commerce. Accordingly, Baylor contends that our prior cases interpreting the Hobbs Act, which have held that a de minimis effect on interstate commerce is sufficient to meet constitutional requirements, should be re-examined in light of the Supreme Court's decision in Morrison. In Morrison, the Court invalidated the civil remedy provision of the Violence Against Women Act, holding that it did not regulate activity that substantially affected interstate commerce. 529 U.S. at 613, 120 S.Ct. 1740. Five years earlier, in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Court held that Congress's enactment of the Gun-Free School Zones Act of 1990 exceeded the scope of its authority under the Commerce Clause, in that "possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Lopez, 514 U.S. at 567, 115 S.Ct. 1624. See also United States v. Dupree, 323 F.3d 480, 485 n. 1 (6th Cir.2003) (summarizing the holdings of Lopez and Morrison).

We review Baylor's argument de novo because it raises a question of law. United States v. Smith, 182 F.3d 452, 455 (6th Cir.1999).

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). In Smith, we reaffirmed our pre-Lopez holdings that the government must prove only that a robbery had a de minimis effect on interstate commerce in order to satisfy the jurisdictional requirement of the Hobbs Act. Surveying the weight of authority from our sister circuits, we observed that:

All of the other circuits that have considered the issue have held that the de minimis standard for Hobbs Act charges survived Lopez, although the Fifth Circuit has recently granted a rehearing on this issue. See United States v. Harrington, 108 F.3d 1460, 1465 (D.C.Cir.1997); United States v. Alfonso, 143 F.3d 772, 775 (2d Cir.1998); United States v. Farrish, 122 F.3d 146, 147 (2d Cir.1997); United States v. Hickman, 151 F.3d 446, 456 (5th Cir. 1998), reh'g granted and op. vacated, 165 F.3d 1020 (5th Cir.1999), [affirmed by 179 F.3d 230 (5th Cir.1999) (en banc)]; United States v. Miles, 122 F.3d 235 (5th Cir.1997); United States v. Robinson, 119 F.3d 1205 (5th Cir.1997), cert. denied, 522 U.S. 1139, 118 S.Ct. 1104, 140 L.Ed.2d 158 (1998); United States v. Nelson, 137 F.3d 1094, 1102 (9th Cir. 1998); United States v. Woodruff, 122 F.3d 1185 (9th Cir.1997); United States v. Beydler, 120 F.3d 985, 987 (9th Cir. 1997); United States v. Nguyen, 155 F.3d 1219, 1224 (10th Cir.1998); United States v. Bruce, 78 F.3d 1506, 1509 (10th Cir.1996); United States v. Bolton, 68 F.3d 396, 398-99 (10th Cir.1995); United States v. Paredes, 139 F.3d 840 (11th Cir.1998) (Wellford, J., sitting by designation); United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir.1997).

Smith, 182 F.3d at 456. We found persuasive the Tenth Circuit's reasoning in Bolton that in Lopez, the Supreme Court "recognized that if a statute regulates an activity which, through repetition, in aggregate has a substantial effect on interstate commerce, the de minimis character of individual instances arising...