United States v. House

• Decision Date: 06 June 2016
• Docket Number: No. 14–3011,14–3011
• Citation: 825 F.3d 381
• Parties: United States of America, Plaintiff–Appellee v. Darryl House, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

825 F.3d 381

United States of America, Plaintiff–Appellee

v.Darryl House, Defendant–Appellant

No. 14–3011

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2016

Filed: June 6, 2016

Rehearing and Rehearing En Banc Denied Aug. 19, 2016

Counsel who presented argument on behalf of the appellant was Scott Tilsen, AFPD, of Cape Girardeau, MO. The following attorney(s) appeared on the appellant brief Michael Skrien, AFPD, of Cape Girardeau, MO, and Caterina Ditraglia, AFPD, of St. Louis, MO.

Counsel who presented argument on behalf of the appellee was Keith D. Sorrell, AUSA, of Cape Girardeau, MO.

Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Darryl House displayed a handgun while robbing the Jayson Jewelers store and was found guilty of violating the Hobbs Act and brandishing a weapon during a crime of violence. The district court¹ sentenced House to life imprisonment. He appeals his sentence and several of the district court's rulings. We affirm.

I.

On September 23, 2009 Darryl House and his associates robbed Jayson Jewelers in Cape Girardeau, Missouri. Kevin Stitt and Keyessence Fountain entered the store pretending to be a couple interested in wedding rings and started speaking with the clerk Debbie Drerup. House then entered the store and pointed a handgun at Drerup. Stitt placed handcuffs on Drerup, wrapped duct tape over the handcuffs and Drerup's eyes, and left her in the back room with the door closed. While Drerup was restrained, House, Stitt, and Fountain took jewelry produced outside Missouri and cash from the store before fleeing. After House and his associates had fled the scene, the police arrived and took DNA samples from the handcuffs.

About three years later Stitt was arrested in Tennessee. The Missouri highway patrol crime laboratory notified the Cape Girardeau police department that his DNA sample matched one taken from Jayson Jewelers on the day of the robbery. Stitt subsequently admitted that he had robbed the store in 2009 and identified House as his associate who had carried the handgun during the robbery.

House was charged with interfering with interstate commerce by aiding and abetting a robbery of a business, in violation of the Hobbs Act, 18 U.S.C. § 1951, and with brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). During jury selection the government used one of its peremptory strikes on juror 18, the only black member of the jury panel. House objected to the strike and raised a Batson challenge, see Batson v. Kentucky , 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but the district court accepted the prosecution's justification for striking the juror. During the trial the parties stipulated to the interstate nexus element of the Hobbs Act charge. Several witnesses testified for the prosecution, including Stitt and the clerk Drerup who identified House as the person who pointed the handgun at her during the robbery. The jury convicted House on both counts.

The presentence investigation report indicated that House was subject to a mandatory life sentence for his Hobbs Act violation since he had at least two prior felony convictions for crimes of violence—a 2001 conviction for aggravated robbery in Tennessee and a 2006 conviction for aggravated robbery in Illinois. According to the report, House's guideline range for possessing a firearm during the robbery was seven years to life. The district court overruled his objections to the report and sentenced him to life imprisonment for his Hobbs Act violation and a consecutive seven years for brandishing a firearm. House appeals his sentence and several of the court's rulings.

II.

We review Batson rulings for clear error, according great deference to the district court's findings, and “keeping in mind that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the party opposing the strike.” United States v. Maxwell , 473 F.3d 868, 871 (8th Cir. 2007) (internal quotation marks omitted). “If a party makes a prima facie showing that a peremptory challenge is race based, the proponent must show a race neutral justification to overcome the objection.” United States v. Ellison , 616 F.3d 829, 832 (8th Cir. 2010). The district court then determines whether the objecting party has shown purposeful discrimination. Id.

The district court did not clearly err by overruling House's Batson challenge. The government claimed that its race neutral justifications for striking juror 18, the sole potential black juror, were that he had refused to make eye contact with the attorneys or the judge, had slouched in his chair and appeared disinterested in the trial, and had been the only prospective juror not to list an occupation or work history on the juror information sheet. “[D]emeanor and body language” may serve as legitimate, race neutral reasons to strike a potential juror. Maxwell , 473 F.3d at 872. A venire member's “nearly empty questionnaire” may also be a valid, race neutral reason to strike that person. See United States v. Carter , 481 F.3d 601, 610 (8th Cir. 2007), rev'd on other grounds , 554 U.S. 237, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). Even though the district judge had not personally detected disinterest by the prospective juror, he was permitted to credit the government's observations in overruling defendant's Batson challenge. See Ellison , 616 F.3d at 832.

III.

House claims that the Hobbs Act is unconstitutional on its face because Congress exceeded the legislative power granted it under the Commerce Clause when it passed this statute. We review constitutional challenges de novo. United States v. Foster , 443 F.3d 978, 981 (8th Cir. 2006). House argues that the Commerce Clause and the Tenth Amendment prohibit the federal government from making robbery of a local store a federal crime, but the Hobbs Act contains an express nexus requiring the charged criminal conduct to affect interstate commerce. See, e.g. , United States v. Vong , 171 F.3d 648, 654 (8th Cir. 1999). Congress has the constitutional authority to pass such legislation, and House's constitutional challenge to the Hobbs Act thus fails.

House also argues that his robbery of Jayson Jewelers was not unlawful under the Hobbs Act because it did not obstruct, delay, or affect interstate commerce. See 18 U.S.C. § 1951. The federal jurisdictional requirement in the Hobbs Act is satisfied however when a robbery depletes the assets of a business engaged in interstate commerce. See United States v. Farmer , 73 F.3d 836, 843 (8th Cir. 1996). The robbery here satisfies this requirement because the stolen jewelry had been made outside of Missouri and shipped to a store in Missouri where it was offered for sale. See Vong , 171 F.3d at 654. House's robbery of Jayson Jewelers thus met the Hobbs Act jurisdictional requirement.

IV.

House argues that the district court erred by imposing a mandatory life sentence under 18 U.S.C. § 3559(c). Section 3559 mandates a life sentence for a defendant who commits a serious violent felony and already has at least two such convictions. We review statutory construction and constitutional challenges de novo and factual findings for clear error. See Foster , 443 F.3d at 981 ; United States v. Brummels , 15 F.3d 769, 771 (8th Cir. 1994).

House argues that a Hobbs Act robbery does not qualify as a “serious violent felony” under 18 U.S.C. § 3559(c) so his life sentence for his crime was improper. “[S]erious violent felony” is defined in § 3559(c) as an “offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 3559(c)(2)(F)(ii). Robbery is defined in the Hobbs Act as “the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 U.S.C. § 1951(b)(1). The district court thus did not err by ruling that House's robbery conviction was a “serious violent felony” under 18 U.S.C. § 3559(c)(2)(F)(ii). Farmer , 73 F.3d at 842.

House also claims that his life sentence is unlawful under 18 U.S.C. § 924(c)(3)(A), which provides penalties for “crime[s] of violence” or felonies that have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” He contends that Hobbs Act robbery is not a crime of violence under this statutory definition. The district court sentenced House to life imprisonment under § 3559(c), however, not § 924(c). Furthermore, even if we analyzed the lawfulness of his sentence under § 924(c), we would be bound by Farmer , 73 F.3d at 842, where we concluded that Hobbs Act robbery has “as an element the use, attempted use, or threatened use of physical force against the person of another.”

According to House, his 2006 Illinois conviction for aggravated robbery does not qualify as a prior serious violent felony. Robbery is however one of the enumerated serious violent felonies provided in § 3559(c)(2)(F)(i). Under § 3559(c), an offense qualifies as robbery if it contains the elements of generic robbery which is defined as aggravated larceny, or the misappropriation of property under circumstances involving immediate danger to a person. See United States v. Becerril–Lopez , 541 F.3d 881, 891 (9th Cir. 2008) ; 3 W. LaFave, Substantive Criminal Law § 20.3(e) (2d ed. 2003). The definition of aggravated robbery in the Illinois statute under which House was convicted was the unlawful taking of personal property from a person or in the presence of another by force or threat of force while “indicating verbally or by [ ] action” that he is armed with a dangerous weapon. 720 Ill. Comp. Stat. 5/18-5 (2006). We conclude that House's 2006 state conviction satisfies the...