United States v. Weldon, 21-30474

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM.
PartiesUnited States of America, Plaintiff-Appellee, v. John Weldon; Eriston Wilson, Defendants-Appellants.
Docket Number21-30474
Decision Date21 September 2022

United States of America, Plaintiff-Appellee,
v.

John Weldon; Eriston Wilson, Defendants-Appellants.

No. 21-30474

United States Court of Appeals, Fifth Circuit

September 21, 2022


Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:19-CR-34-1 USDC No. 2:19-CR-34-3

Before KING, DUNCAN, and ENGELHARDT, Circuit Judges.

PER CURIAM. [*]

John Weldon and Eriston Wilson appeal the convictions they received for their involvement in a series of armed robberies. Wilson also appeals his sentence. We vacate Wilson's sentence and remand for resentencing, and we affirm the district court's judgment in all other respects.

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I.

From December 23, 2018 to February 2, 2019, John Weldon, often in collaboration with Eriston Wilson, committed a string of robberies in New Orleans. Weldon first robbed a Shell gas station of money and Kool cigarettes. He and Wilson then committed armed robbery of a Dollar General, two additional Shell gas stations, a Circle H Meat Market ("Circle H"), a Tiger Mart, a Quik Save Discount Store ("Quik Save"), and a Mike's Grocery.

On February 5, 2019, Weldon and Eugene Lewis robbed First Bank and Trust. Lewis first cased the bank, acting as a potential customer to determine if security guards were present. He returned with Weldon several hours later, acting as a decoy to open the door before Weldon entered the bank brandishing a handgun. During the robbery, Weldon took over $9,000, and Lewis left the bank and waited for Weldon at a Shell station across the street.

Law enforcement arrived at the scene shortly thereafter and arrested Lewis that day. Lewis explained to the officers that Weldon, whose name he did not know, had contacted Lewis on his mother's phone and that they had met only several days prior. Law enforcement retrieved Weldon's phone number, which they then used to obtain Weldon's name and photograph. Upon seeing Weldon's photograph, an officer immediately recognized Weldon's face tattoos as those belonging to the suspect in the robbery that took place on December 23.

After comparing the image of Weldon with that of the suspect from the December 23 robbery, as well as confirming that the vehicle at Weldon's listed address matched the vehicle associated with several of the seven two-person robberies, law enforcement obtained an arrest warrant for Weldon and a search warrant for his address. Agents also obtained a search warrant

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for the vehicle thereafter. The warrants were executed, and several items were seized, including a substantial amount of cash, a black and silver firearm, and a box of Kool cigarettes.

Weldon possessed a cellphone when he was arrested, and agents subsequently obtained a search warrant for the device. The cellphone contained several pictures of Weldon and Wilson together, both of whom could be seen wearing the same clothing and shoes that were utilized in the string of robberies. Based on these pictures, as well as surveillance footage from the robberies and interviews with other individuals, law enforcement determined that Wilson was the second individual who committed the earlier robberies alongside Weldon. Wilson was eventually arrested in May 2019 in connection with a separate armed robbery not charged in this case.

In August 2019, Weldon, Wilson, and Lewis were charged in a superseding indictment. Weldon and Wilson were charged with conspiracy to commit Hobbs Act robbery at seven locations in violation of 18 U.S.C. Section 1951(a) ("Count One") and aiding and abetting the brandishing of a firearm during a crime of violence at the Circle H in violation of 18 U.S.C. Section 924(c)(1)(A)(ii) ("Count Three"). Weldon was additionally charged with Hobbs Act robbery at a Shell gas station on December 23, 2018, in violation of 18 U.S.C. Section 1951(a) ("Count Two"), armed bank robbery at First Bank and Trust in violation of 18 U.S.C. Sections 2113(a) and (d) ("Count Four"), aiding and abetting the brandishing of a firearm during a crime of violence at First Bank and Trust in violation of 18 U.S.C. Section 924(c)(1)(A)(ii) ("Count Five"), and knowingly possessing a firearm as a felon in violation of 18 U.S.C. Sections 922(g)(1) and 924(a)(2) ("Count

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Six").[1] Following a four-day trial, the jury found Defendants guilty on all counts. Weldon was sentenced to a 408-month term, and Wilson was sentenced to a 272-month term. Defendants now appeal their convictions and sentences to this court.

II.

A. Sufficiency of the evidence

Defendants argue the Government presented insufficient evidence to support their convictions on all counts, though neither Defendant challenged the sufficiency of the evidence at trial. When a sufficiency claim is unpreserved, we review for plain error. United States v. Smith, 878 F.3d 498, 502-03 (5th Cir. 2017). To establish plain error, Defendants must show (1) "an error or defect" (2) that is "clear or obvious" and (3) "affected the [Defendants'] substantial rights." Id. at 503 (quoting United States v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc)). Defendants' claims "will be rejected unless the record is devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking." Delgado, 672 F.3d at 330-31 (quoting United States v. Phillips, 447 F.3d 215, 219 (5th Cir. 2007)).

The Hobbs Act (the "Act") makes it unlawful for a person to "in any way or degree obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery." 18 U.S.C. § 1951(a). To satisfy the jurisdictional element of the Act, the Government must show that Defendants' unlawful activity caused a "minimal effect on interstate commerce." United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997). "[A] generalized connection between the alleged criminal activity and interstate commerce is sufficient to sustain a conviction for conspiracy to

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violate the Hobbs Act," while substantive Hobbs Act violations "require that the alleged act actually have an effect on interstate commerce." United States v. Mann, 493 F.3d 484, 495 (5th Cir. 2007).

Wilson argues the Government failed to show the Circle H robbery, which forms the basis for Count Three, had any effect on interstate commerce, and Weldon argues that the Government did not provide evidence that the theft of Kool cigarettes-merchandise stolen in a handful of the seven robberies at issue in Counts One and Two-implicated interstate commerce. However, witnesses testified that goods sold at each business, such as Frito-Lay products and Kool cigarettes, were manufactured outside Louisiana and thus required interstate commerce to arrive at the robbed stores. Kool cigarettes were stolen in five of the seven robberies underlying Count One, including in the robbery of the Shell gas station at issue in Count Two, and it is neither clear nor obvious that this evidence is insufficient to establish the minimal effect on interstate commerce the Act requires for those counts.

No Kool cigarettes were stolen from Circle H, but trial testimony confirmed that Circle H sold Coca-Cola and Frito-Lay products and that the robbery caused at least a minimal interruption in commerce. Specifically, there were customers present during the armed robbery of the store, and they were forced to lie on the ground during the robbery. This court has previously held that the interstate commerce element was satisfied for a substantive Hobbs Act conviction, such as Count Three, where a defendant's "armed robberies caused the interruption of commerce in several stores dealing in out-of-state wares." United States v. Martinez, 28 F.3d 444, 445 (5th Cir. 1994). Accordingly, it was not plain error to rely on such evidence to establish a generalized connection between the Circle H robbery and interstate commerce necessary for Count Three.

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Defendants also challenge generally the sufficiency of the evidence for their convictions on the respective counts, arguing that nobody could positively identify them based on the surveillance footage (because the perpetrators were masked) and that the circumstantial evidence was weak. However, Defendants fail to show that the record is either devoid of evidence pointing to guilt or so thin that the convictions are shocking. See Delgado, 672 F.3d at 330-32.

Starting with Counts One and Three, Lewis testified that Weldon admitted to robbing Tiger Mart and that he had seen Weldon's black and silver firearm, which matched the description of the gun used in at least six of the seven robberies, including the robbery of Circle H. Moreover, the vehicle Weldon frequently used, a gold Honda, matched the vehicle seen at two of the seven robberies. Law enforcement also seized several items from the vehicle, including the firearm, Kool cigarettes, and shoes, that were connected to various robberies. Finally, cell site location information placed Weldon's phone near the Circle H and Quik Save at the time of the robberies. Taken together, this evidence is sufficient to convict Weldon on Counts One and Three.[2]

The Government also presented evidence showing that Wilson and the unarmed robber at the second Shell gas station robbery both had worn relatively distinctive yellow, black, and white shoes. Moreover, Wilson and Weldon are of the same height and build as the two robbers involved in the

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conspiracy, and evidence showed they drove around together in the gold car, all of which support Wilson's conviction under Count One. With respect to Count Three, the Circle H robbery, the Government again established that Wilson's height and build match those of the unarmed robber and showed that the unarmed robber at the second Shell gas station robbery-Wilson- and the unarmed robber at Circle H wore consistent, and distinctive, Nautica sweatshirts. The jury was also able to compare surveillance footage from the robbery, which captured the...

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