U.S. v. Hickman, 97-40237

• Citation: 151 F.3d 446
• Decision Date: 01 September 1998
• Docket Number: No. 97-40237,97-40237
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Masontae HICKMAN; Markus D. Chopane; Jyi R. McCray; Edwin T. Limbrick; Edmond Gasaway, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 446

151 F.3d 446

UNITED STATES of America, Plaintiff-Appellee, v. Masontae HICKMAN; Markus D. Chopane; Jyi R. McCray; Edwin T. Limbrick; Edmond Gasaway, Defendants-Appellants.

No. 97-40237.

United States Court of Appeals Fifth Circuit.

Sept. 1, 1998.

John B. Stevens, Jr., Paul E. Naman, Keith Fredrick Giblin, Beaumont, TX, for Plaintiff-Appellee.

Frank Warren Henderson, Amy R. Blalock, Tyler, TX, for Masontae Hickman.

Richard Ellis Turkel, Turkel, Dumas & Lebleu, Orange, TX, for Markus D. Chopane.

Thomas Alan Chambers, Liberty, TX, for Jyi R. McCray.

Louis Dugas, Jr., Jay Edward Tantzen, Orange, TX, for Edwin T. Limbrick.

Douglas Milton Barlow, Beaumont, TX, for Edmond Gasaway.

Appeals from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellants Masontae Hickman, Edwin T. Limbrick, Jyi R. McCray, Marcus D. Chopane, and Edmond Gasaway appeal their convictions and sentences for conspiracy to obstruct commerce, obstruction of commerce in violation of the Hobbs Act and related firearm counts. We affirm all convictions, and affirm the sentences imposed against Hickman, Limbrick, McCray and Gasaway. We vacate Chopane's sentence and remand his case to the district court for resentencing.

FACTS AND PROCEEDINGS

This case involved the federal prosecution of five individuals for a series of robberies in On March 15, 1994, two men entered the Subway Sandwich Shop in Beaumont, Texas just before closing. The men, one armed with a shotgun and one with a handgun, demanded money from Subway employee Charles Mitchell. After receiving $230, they fled. On May 4, 1994, Mitchell picked defendant Chopane out of a photo lineup as the robber armed with the handgun. At a subsequent photo lineup, two years later, on May 15, 1996, Mitchell identified defendant McCray as the robber armed with the shotgun. McCray and Chopane were convicted for this crime.

                a three-county area in East Texas in 1994. 1  A sixth individual, Roderick Mouton, testified for the Government in return for a plea bargain that allowed him to plead guilty to misprision of a felony
                

On April 1, 1994, a robbery occurred at the Church's Chicken restaurant in Jasper, Texas. That night, Heather Goss, a Church's employee, had just closed the restaurant and was walking to her car when she was accosted by two men, who forced her and a co-worker back inside. One of the men was armed with a revolver. The two men ordered Goss to open the store's safe, and they absconded with $1,848. Several unfired .32 caliber bullets were later recovered at the scene, which had apparently fallen out of the robber's handgun. Defendant Hickman later admitted to police his involvement in this robbery. A .32 caliber pistol bearing Hickman's fingerprints was recovered at the scene of a later robbery on June 1, 1994. The pistol was missing its center pin, a defect that would allow ammunition to drop out of it. At trial, Hickman was convicted for this crime.

During the evening of April 20, 1994, Oscar Hennington, an employee of Catfish Cabin restaurant in Jasper, Texas, was outside closing up when he was accosted by a man who put a gun to his head. Hennington saw three other robbers crouched down a short distance away, armed with handguns and a sawed-off shotgun. LaDonna Scott, another Catfish Cabin employee, walked out of the restaurant and laughed off the robbery as a joke. The robbers responded by discharging their firearms, causing Scott and Hennington to run to their vehicles which were parked nearby. Hennington, Scott, and Sadie Crumedy, another employee, fled the restaurant in their cars. On the side of the highway close to the Catfish Cabin, Hennington saw a white vehicle like the car owned by defendant Limbrick's sister. Scott, who was Limbrick's sister-in-law, testified at trial that one of the robbers sounded like Limbrick. Hickman later confessed to police to participating in a robbery of "Catfish King" in Jasper, although the only catfish restaurant in Jasper is Catfish Cabin. Hickman stated that the robbers left after receiving no money because the victims "wouldn't act right." Hickman and Limbrick were convicted of this crime.

On May 2, 1994, at approximately 9:45 p.m., two men broke into the Peking Restaurant in Beaumont, Texas. During the course of the robbery, the men shot and wounded David Wu and shot and killed Xiao Wu. Hickman later confessed to participation in this crime. Limbrick confessed to driving the getaway car and disassembling the shotgun and placing it in a sack to be thrown away. Gasaway admitted throwing the sack in a river, not knowing what was inside but later recanted his statement. Hickman and Limbrick were convicted for this crime.

At 1:30 a.m. on the morning of May 17, 1994, Richard Roark, the manager of an AutoZone store, was stocking auto parts along with some other employees. Two men armed with guns entered the store and demanded that Roark open the safe. Roark did so, and the men made off with approximately $1300 or $1400. While fleeing from the store, one of the robbers dropped a cash register tray. After Roark picked up the tray, one of the robbers shot at him. Police later recovered a .380 caliber shell casing, which they determined was fired from the same pistol recovered from the subsequent Dairy Queen robbery. Hickman confessed to On May 21, 1994, at approximately 1:00 a.m., two men forced their way into a Church's Chicken on Washington Boulevard in Beaumont, Texas. One man was armed with a gun, the other with a knife. The men demanded that the employees open the safe, and they escaped with $1,160. Hickman later admitted to robbing a Church's Chicken on "Fourth Street" in Beaumont. Fourth Street is located one block from Washington Boulevard. At trial, Hickman was convicted of this robbery.

participation in the AutoZone robbery. Hickman was convicted for this crime.

At approximately 11:30 p.m. on the night of June 1, 1994, Virginia Willis locked up for the night at the Dairy Queen in Silsbee, Texas, where she was the manager. She walked towards her car in the parking lot carrying the day's proceeds in a bank bag, totaling $1100 in cash and $200 in checks. Before she reached her car, she was accosted by a gunman. She dropped the bag and ran back to the restaurant, but she was pushed into some bushes by a second robber. One of her assailants picked up the bag, put a gun to Willis's face, and demanded to be let inside the restaurant. Willis threw down her keys. As the men left to enter the restaurant, Willis ran to a neighboring convenience store. On her way, Willis saw a maroon vehicle, later identified as Gasaway's Mazda. Roger Smart and a friend were at the convenience store when they heard Willis screaming that she had been robbed. Smart and his friend then got in their pickup truck and followed the maroon vehicle as it sped away from the restaurant. During the pursuit, individuals in the maroon car threw clothing and other objects out its windows. The maroon car later turned into a sand pit. Smart drove past the entrance and down the road to turn around. Smart drove back towards the entrance to the sand pit and observed the maroon car pull out to get back on the highway. Smart again followed the maroon car at speeds exceeding 95 m.p.h., until his engine exploded. In the vicinity of the Dairy Queen, a Silsbee police officer later recovered various items of clothing, along with an envelope with the name "Roderick Mouton" on it. Custer then retrieved two handguns from the sand pit--a .380 semiautomatic and a .32 caliber revolver. The .32 revolver was missing its center pin and fingerprints on the gun were identified as Hickman's. Hickman, McCray and Gasaway were convicted for the Dairy Queen robbery.

On June 21, 1994, four men approached some employees standing outside Hardee's Restaurant in Beaumont, Texas. The men forced the employees back into the restaurant at gunpoint, and they ordered Clifford Taylor, the manager, to open the safe. The robbers took approximately $2000 from the safe and fled. Police officers who were called to the scene discovered Hickman and Mouton hiding 250 yards away. McCray made it back to the Mouton family home, where he was living. McCray told Diane Mouton, Roderick Mouton's mother, about the robbery, and he retrieved the proceeds of the crime and gave them to her. Diane Mouton turned the money over to the police. Hickman, McCray and Gasaway were convicted of this robbery.

While detained at the Jefferson County Jail, Hickman admitted to participating in the Hardee's, Dairy Queen, Peking Restaurant, Church's Chicken, AutoZone and "Catfish King" robberies. On June 23, 1994, Limbrick admitted to police that he drove the getaway car from the Peking Restaurant robbery and that he disassembled the shotgun used in that crime and placed it in a bag. Limbrick also confessed to driving the getaway car in three robberies preceding the Peking Restaurant.

On October 18, 1996, a federal grand jury returned a third superseding indictment against Hickman, Limbrick, McCray, Chopane, and Gasaway. Limbrick, McCray, Chopane and Gasaway were charged in count one with conspiracy to obstruct interstate commerce by robbery, in violation of 18 U.S.C. § 1951 (the Hobbs Act). Each of the five defendants were then charged individually with various substantive Hobbs Act and firearm-use offenses.

Trial commenced on October 22, 1996. Mouton testified against the defendants as the Government's witness in return for a plea bargain. The jury returned guilty verdicts against the defendants on every count in the In February and March of 1997, the district court sentenced the defendants. Chopane received a total sentence of 111 months of imprisonment, Gasaway received 387 months of imprisonment, McCray received 627 months, Limbrick received 1020 months of imprisonment and Hickman received 3180 months of...