Petition for Writ of Certiorari — Kemon Dominique Thompson, Petitioner v. United States

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APPENDIX

Opinion of the United States Court of Appeals for the Eleventh Circuit,

United States v. Thompson, No. 18-12754

(11th Cir. Jan. 5, 2021) .............................................................................................. A-1

United States v. Stepherson, No. 18-12545, 838 F. App’x 438

(11th Cir. Dec. 16, 2020) ............................................................................................ A-2

Eleventh Circuit Pattern Jury Instructions (Criminal Cases) 70.3 (2020) ............. A-3

Tenth Circuit, Criminal Pattern Jury Instructions 2.70 (2021) .............................. A-4

A-1

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Date Filed: 01/05/2021

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-12754

Non-Argument Calendar

________________________

D.C. Docket No. 1:17-cr-20895-DMM-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEMON DOMINIQUE THOMPSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 5, 2021)

Before WILSON, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

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Defendant-Appellant Kemon Thompson appeals both his conviction,

pursuant to a guilty plea, and 96-month sentence for brandishing a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).1

On appeal, Thompson first argues that his conviction for brandishing a

firearm in furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii), is invalid and must be dismissed because the predicate offense

upon which that conviction was based—Hobbs Act robbery—does not qualify as a

“crime of violence” under the elements clause or residual clause of 18 U.S.C.

§ 924(c)(3).

We review de novo whether a crime constitutes a “crime of violence” under

18 U.S.C. § 924(c). Steiner v. United States, 940 F.3d 1282, 1288 (11th Cir. 2019)

(per curiam).

Under 18 U.S.C. § 924(c)(1)(A), it is a violation to brandish a firearm during

and in relation to a crime of violence. 18 U.S.C. § 924(c)(1)(A)(ii). The statute

defines “crime of violence” in two subparts—the first is known as the elements

Thomas also appeals the district court’s determination that his prior nolo contendere plea to

possession with intent to sell marijuana, with adjudication withheld, constituted a “conviction”

for the purposes of applying the career offender sentencing enhancement under U.S.S.G. §

4B1.1(a). Because we find the district court's application of the career offender sentencing

enhancement was in error and Thompson's sentence should be vacated, we need not address this

issue.

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clause, and the second is known as the residual clause. United States v. Davis, 139

S. Ct. 2319, 2324 (2019). For the purposes of § 924(c)(3), a crime of violence is

“an offense that is a felony” and either “(A) has as an element the use, attempted

use, or threatened use of physical force against the person or property of another”

or “(B) that by its nature, involves a substantial risk that physical force against the

person or property of another may be used in the course of committing the

offense.”

While the Supreme Court invalidated 18 U.S.C. § 924(c)(3)’s residual clause

in Davis for being unconstitutionally vague, it left intact § 924(c)(3)’s elements

clause. Davis, 139 S. Ct. at 2335–36; see Brown v. United States, 942 F.3d 1069,

1075 (11th Cir. 2019). Under our precedent, Hobbs Act robbery qualifies as a

crime of violence under 18 U.S.C. § 924(c)(3)’s elements clause. In re Fleur, 824

F.3d 1337, 1340–41 (11th Cir. 2016) (per curiam); see United States v. St. Hubert,

909 F.3d 335, 345–46 (11th Cir. 2018), cert. denied, 139 S. Ct. 1394 (2019), and

abrogated in part on other grounds by Davis, 139 S. Ct. at 2323–25, 2336 (2019)

(holding that Hobbs Act robbery categorically satisfies 18 U.S.C § 924(c)’s

definition of a “crime of violence”).

Here, Thompson’s conviction for brandishing a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), was predicated

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upon two Hobbs Act robbery offenses. These constitute “crimes of violence”

under our precedent. See In re Fleur, 924 F.3d at 1340–41. “We are bound by

prior panel decisions unless or until we overrule them while sitting en banc, or they

are overruled by the Supreme Court.” United States v. Jordan, 635 F.3d 1181,

1189 (11th Cir. 2011). Accordingly, we affirm Thompson’s conviction.

II.

Thompson also challenges his 96-month sentence, arguing that Hobbs Act

robbery does not qualify as a “crime of violence,” under the definition provided in

U.S.S.G. § 4B1.2(a), for the purposes of being designated a career offender.

Thompson argues that our intervening decision in United States v. Eason, 953 F.3d

1184 (11th Cir. 2020), means that the district court’s determination that he

qualified for career offender status constitutes plain error and should be reversed.

We review de novo whether a defendant’s prior conviction qualifies as a

“crime of violence” under U.S.S.G § 4B1.2(a). See United States v. RosalesBruno, 676 F.3d 1017, 1020 (11th Cir. 2012). However, when a defendant fails to

object to an error before the district court, we review the argument for plain error.

United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002). Under this standard, the

appellant must prove: (1) an error occurred; (2) the error was plain; (3) it affected

his substantial rights; and (4) it seriously affected the fairness or integrity of the

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judicial proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). “In most

cases, a determination of whether error affects a substantial right turns upon

whether it affected the outcome of the proceedings.” Hall, 314 F.3d at 566.

“[W]hether a legal question was settled or unsettled at the time of trial, it is

enough that an error be ‘plain’ at the time of appellate consideration for the second

part of the four-part Olano test to be satisfied.” Henderson v. United States, 568

U.S. 266, 279 (2013) (internal quotation marks omitted and alterations accepted).

An incorrect calculation of a Sentencing Guideline affects a defendant’s substantial

rights. Molina-Martinez v. United States, 136 S. Ct. 1338, 1349 (2016) (finding

that a defendant seeking appellate review of an unpreserved Sentencing Guidelines

error need not make any further showing of prejudice beyond the fact that an

erroneous, and higher, Guidelines range was applied at sentencing). Furthermore,

the failure to correct such a plain Guidelines error seriously affects “the fairness,

integrity, and public reputation of judicial proceedings.” Rosales-Mireles v. United

States, 138 S. Ct. 1897, 1911 (2018).

Hobbs Act robbery does not qualify as a “crime of violence” under U.S.S.G.

§ 4B1.2(a) and therefore cannot serve as a predicate offense for a career offender

sentencing enhancement. Eason, 953 F.3d at 1195. The Guideline sentence for a

conviction based on a violation of 18 U.S.C. § 924(c), when the defendant does not

qualify as a career offender under U.S.S.G. § 4B1.1, is the minimum term of

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imprisonment required by statute. See U.S.S.G. § 2K2.4. A conviction pursuant to

18 U.S.C. § 924(c)(1)(A)(ii) carries a minimum term of imprisonment of 84

months.

Here, the district court’s determination that Hobbs Act robbery is a crime of

violence for purposes of the career offender sentencing enhancement under

U.S.S.G. § 4B1.1 was plain error. While Thompson’s case was on appeal, we held

that Hobbs Act robbery does not constitute a crime of violence under the

Sentencing Guidelines. See Eason, 953 F.3d at 1188–89, 1195. Thus, Thompson

has demonstrated that the error is plain. See Henderson, 568 U.S. at 279. This

erroneous application of the career offender sentencing enhancement resulted in an

incorrect, and higher, Guidelines range being applied at Thompson’s sentencing—

a Guidelines range of 262 to 327 months’ imprisonment as opposed to the correct

84 months’ imprisonment. Thus, the error affected Thompson’s substantial rights

and the fairness, integrity, and public reputation of the judicial proceedings. See

Rosales-Mireles, 138 S. Ct. at 1909–1911.

Having satisfied the elements for plain error review under Olano, we vacate

Thompson’s sentence and remand for resentencing without the career offender

Guideline enhancement under U.S.S.G. § 4B1.1.

AFFIRMED IN PART, VACATED IN PART, REMANDED.

A-2

United States v. Stepherson, 838 Fed.Appx. 438 (2020)

838 Fed.Appx. 438

This case was not selected for

publication in West's Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1

generally governing citation of judicial

decisions issued on or after Jan. 1, 2007.

See also U.S. Ct. of App. 11th Cir. Rule 36-2.

United States Court of Appeals, Eleventh Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Rahshard STEPHERSON, Defendant-Appellant.

No. 18-12545

Non-Argument Calendar

(December 16, 2020)

Synopsis

Background: Defendant was convicted in the United States

District Court for the Southern District of Florida, No.

1:17-cr-20895-DMM-2, Donald M. Middlebrooks, J., of

conspiracy to commit Hobbs Act robbery, Hobbs Act robbery,

and brandishing firearm while committing crime of violence.

Defendant appealed.

Holdings: The Court of Appeals held that:

evidence was sufficient to support convictions for Hobbs Act

robbery and conspiracy to commit Hobbs Act robbery;

district court did not abuse its discretion by denying

defendant's motion for new trial based on victim's inconsistent

testimony;

evidence of prior Florida robbery conviction was admissible

other-acts evidence; and

district court's error in classifying defendant as career

offender under Sentencing Guidelines was plain.

Affirmed in part, vacated in part, and remanded.

Procedural Posture(s): Appellate Review; Post-Trial

Hearing Motion.

Attorneys and Law Firms

*439 Carol Herman, Jason Wu, Assistant U.S. Attorney,

Daniel Matzkin, U.S. Attorney Service - Southern District of

Florida, U.S. Attorney Service - SFL, Miami, FL, Emily M.

Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff Appellee

Curt Obront, Obront Corey, PLLC, Miami, FL, for Defendant

- Appellant

Rahshard Jovan Stepherson, Pro Se

Appeal from the United States District Court for the Southern

District of Florida, D.C. Docket No. 1:17-cr-20895-DMM-2

Before GRANT, LUCK, and ANDERSON, Circuit Judges.

Opinion

PER CURIAM:

At 2:30am on a Friday morning, Ijan Van Wyk walked with a

friend down Ocean Drive in Miami Beach. The two had just

*440 spent several hundred dollars at South Beach bars and

were in search of another one to spend their remaining cash.

That night, Van Wyk carried an iPhone, a wallet with two bank

cards, $30–$60 in cash, and a $6,000 wristwatch. A few hours

later, he went home empty-handed. He and his friend were

robbed at gunpoint.

A jury convicted Rahshard Stepherson of the robbery, finding

him guilty of one count of conspiracy to commit Hobbs Act

robbery, one count of Hobbs Act robbery, and one count of

brandishing a firearm while committing a crime of violence.

The district court determined that Stepherson was a career

offender pursuant to U.S.S.G. § 4B1.1 and sentenced him to

360 months’ imprisonment. Stepherson now challenges his

conviction and sentence. We affirm in part and reverse in part.

Van Wyk, an Australian tourist, traveled to the United States

to visit his long-distance girlfriend in Miami. The night

before his scheduled departure, he went out for drinks in

Miami Beach with a friend-of-a-friend, Will Hardy. They

visited “around five” bars, spending about $200 each. Around

2:30am, they left one bar and began searching for another.

United States v. Stepherson, 838 Fed.Appx. 438 (2020)

As they walked down Ocean Drive, they ran into three men.

The men offered them weed; they declined. They told the men

that they were “just looking for another bar to go to.” “Follow

us,” the men responded, “we can show you the way.”

Naively, Van Wyk and Hardy followed the men about a block

down Ocean Drive and into an alley. One of the men opened

a door and they followed him into a fire escape. Immediately,

Van Wyk sensed that “something wasn't right.” But he was

boxed in on both sides.

One of the men—who Van Wyk later identified as Stepherson

—“manhandled [them] into the fire escape.” When Hardy

pushed back, Stepherson pulled out and cocked a pistol.

Van Wyk screamed at Hardy to settle down. But as Hardy

kept resisting, Stepherson pressed the gun into his neck and

stomach and then into Van Wyk's stomach.

Stepherson told Hardy, “[N]----, I ain't playing,” and “pulled

the magazine out” of the pistol to show Hardy and Van Wyk

the live rounds inside. The men then demanded that Van

Wyk and Hardy go with them to an ATM to withdraw cash.

Stepherson left with Hardy, leaving Van Wyk in the stairwell.

A few minutes later, they returned.

Stepherson pointed the gun at Van Wyk and robbed him

of his personal possessions, while another robbed Hardy.

Altogether, the robbers took Van Wyk's iPhone, a wallet with

two bank cards, $30–$60 in cash, and a $6,000 wristwatch

and Hardy's two cell phones and cash.

Stepherson and the other two men then exited the fire escape,

leaving Van Wyk and Hardy alone. Once they were gone, Van

Wyk and Hardy escaped to the street. They fled to a nearby

police station and reported that they had just been robbed at

gunpoint.

The police arrested Stepherson and his two co-defendants,

Kemon Thompson and Vidyapati El, in connection with the

robbery and a grand jury charged them each with four counts:

conspiracy to commit Hobbs Act robbery in violation of

18 U.S.C. § 1951(a), two counts of Hobbs Act robbery in

violation of 18 U.S.C. § 1951(a), and brandishing a firearm

in furtherance of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii). While Stepherson's co-defendants elected

to plead guilty, Stepherson went to trial. The jury found him

guilty of three of the four counts—acquitting *441 him only

of Hobbs Act robbery against Hardy.

Stepherson moved for a new trial, but the district court

denied that motion. The court then sentenced him to 360

months’ imprisonment. He now appeals his convictions and

his sentence.

II.

We review a preserved challenge to “the sufficiency of the

evidence de novo, viewing the evidence in the light most

favorable to the government and drawing all reasonable

inferences in favor of the verdict.” United States v. Schier,

438 F.3d 1104, 1107 (11th Cir. 2006). But when the defendant

raises a claim challenging the sufficiency of the evidence on

a ground not argued below, we review the new claim for plain

error only. United States v. Joseph, 709 F.3d 1082, 1093 (11th

Cir. 2013). Under plain error review, before we can correct

an error not raised at trial, there must be “(1) error, (2) that

is plain, and (3) that affects substantial rights. If all three

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Baker, 432 F.3d 1189,

1202–03 (11th Cir. 2005) (quotation omitted).

We review a preserved challenge to an evidentiary ruling for

abuse of discretion. United States v. Ellisor, 522 F.3d 1255,

1267 (11th Cir. 2008). And we also apply abuse of discretion

review to the denial of a motion for a new trial. Lamonica

v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1312 (11th

Cir. 2013). But we review de novo questions of statutory

interpretation, as well as the district court's interpretation and

application of the Sentencing Guidelines. United States v.

Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009); United States

v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006).

III.

Stepherson was convicted of both Hobbs Act robbery and

conspiracy to commit Hobbs Act robbery. The Hobbs Act

prohibits “extortion, and attempts or conspiracies to extort,

that ‘in any way or degree obstruct[ ], delay[ ], or affect[ ]

commerce or the movement of any article or commodity in

commerce.’ ” United States v. Kaplan, 171 F.3d 1351, 1354

(11th Cir. 1999) (quoting 18 U.S.C. § 1951(a)) (alterations

United States v. Stepherson, 838 Fed.Appx. 438 (2020)

in original). This case focuses on the commerce element.

For Hobbs Act conspiracy, the government must prove

that the defendant's scheme “would have affected interstate

commerce,” while a substantive violation of the Hobbs Act

requires proof of “an actual effect on interstate commerce.”

United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001).

Stepherson insists that the government presented insufficient

evidence that his robbery of Van Wyk was likely to affect or

had an actual effect on interstate commerce. Because he raises

this issue for the first time on appeal, we review for plain error.

The Hobbs Act defines “commerce” broadly, covering “all

commerce between any point in a State ... and any point

outside thereof.” 18 U.S.C. § 1951(b)(3). And the Supreme

Court's interpretation of the Hobbs Act has followed the

statute's broad terms, recognizing that the Act manifests

Congress's intent to “use all the constitutional power

Congress has to punish interference with interstate commerce

by extortion, robbery or physical violence.” Stirone v. United

States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

To that end, our Court has held that though convictions

*442 under the Act require proof of an effect on interstate

commerce, the “effect need not be substantial, and even a

minimal impact on interstate commerce is enough to support a

Hobbs Act conviction.” United States v. Smith, 967 F.3d 1196,

1209 (11th Cir. 2020) (quotation omitted).

The Hobbs Act most commonly applies to robberies of

businesses. But robberies of individuals may also qualify.

In Diaz, we identified three types of circumstances where

a robbery of an individual would affect commerce, such as

when “(1) the crime depletes the assets of an individual who

is directly engaged in interstate commerce; (2) the crime

causes the individual to deplete the assets of an entity engaged

in interstate commerce; or (3) the number of individuals

victimized or the sums involved are so large that there will

be a cumulative impact on interstate commerce.” Diaz, 248

F.3d at 1085. These are merely examples—an “effective

barometer for measuring a defendant's actions and their effect

on interstate commerce”—but Diaz is not a restrictive test.

Smith, 967 F.3d at 1208 (quotation omitted). Instead, to

determine whether robbery of an individual qualifies under

the Hobbs Act, we must make a “fact-specific inquiry into

the directness and likely extent of any impact on interstate

commerce.” Id. (quotation omitted).

The government's case rests on an inference that Van Wyk

would have spent more money in the hours leading up to his

departure from the United States, so he was likely interrupted

from engaging in interstate commerce. Stepherson argues that

we have never held that such a hypothetical connection to

interstate commerce can qualify for Hobbs Act robbery.

But even if that's so, neither have we held that such a

connection falls outside the Hobbs Act's broad net. And

that proves fatal to Stepherson's appeal. Recall that we are

reviewing this argument for plain error and for an error to be

“plain enough for the plain error rule, an asserted error must

be clear from the plain meaning of a statute or constitutional

provision, or from a holding of the Supreme Court or this

Court.” United States v. Rodriguez, 627 F.3d 1372, 1381

(11th Cir. 2010). Stepherson has identified no case from this

Court or the Supreme Court that place these minimal effects

on interstate commerce outside prosecution under the Hobbs

Act. So we cannot say that the error below was plain.

Stepherson next insists that there was insufficient evidence

to convict him because the government's main witness—the

victim, Van Wyk—“presented two alternative statements for

the same crime,” one at the police station and one at trial. Such

inconsistencies, he believes, rendered Van Wyk not credible.

He also argues that because of this inconsistent testimony, the

district court should have granted him a new trial.

Credibility decisions, though, are matters for the jury, and

when we are reviewing a challenge to the sufficiency of

the evidence, we assume that the jury made all credibility

decisions “in the way that supports the verdict.” United States

v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). Even

though Van Wyk's story differed in some respects—which

he admitted during cross-examination—the jury “by their

verdict, at the very least, found [him] to be a credible witness.”

See United States v. Bazemore, 41 F.3d 1431, 1435 n.9 (11th

Cir. 1994).

Nor did the district court err in denying Stepherson's motion

for a new trial based on Van Wyk's inconsistent testimony.

*443 When a defendant moves for a new trial based on the

weight of the evidence, the court “need not view the evidence

in the light most favorable to the verdict,” but “may weigh

the evidence and consider the credibility of the witnesses.”

United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir.

1985). At the same time, such motions are “not favored.” Id.

at 1313. Courts are instructed to “grant them sparingly and

with caution, doing so only in those really exceptional cases,”

United States v. Stepherson, 838 Fed.Appx. 438 (2020)

where the evidence weighs “heavily against the verdict, such

that it would be a miscarriage of justice to let the verdict

stand.” Id. Indeed, courts have granted new trials based on

the weight of the evidence “only where the credibility of

the government's witnesses had been impeached and the

government's case had been marked by uncertainties and

discrepancies.” Id.

True, portions of Van Wyk's testimony conflicted with what

he originally told the police. For instance, Van Wyk originally

told the police that he was forced into the alley by a large man

with dreadlocks—Stepherson's co-defendant, Vidyapati El.

But a video presented at trial showed that Van Wyk entered the

alley voluntarily. Yet despite these minor inconsistencies, Van

Wyk's testimony was consistent in other important respects—

including his description of the robbers and the items stolen,

and his testimony about one the robbers threatening him with

a gun.

Moreover, it was corroborated by other testimony and

evidence. A surveillance video showed Van Wyk and

Hardy entering the alley with Stepherson and two other

men, Stepherson leaving with Hardy, and then all three

robbers leaving for good, with Van Wyk and Hardy fleeing

shortly after. Stepherson even identified himself and his codefendant, El, in this surveillance video. And police officers

corroborated other parts of Van Wyk's account, such as the

time and place that he reported the robbery at the police

station.

We are not persuaded that Van Wyk's testimony was, on the

whole, not credible. And the government's case was hardly

“marked by uncertainties and discrepancies,” making it a

“miscarriage of justice” to allow the jury's verdict to stand.

Martinez, 763 F.2d at 1313. The district court therefore did

not abuse its discretion by denying Stepherson a new trial. 1

Stepherson also believes that the district court abused its

discretion by admitting evidence of a “dissimilar uncharged

Florida robbery conviction” which occurred ten years before

the instant offense. He claims that the government improperly

used this evidence as “character assassination, showing

propensity and bad character,” in a prejudicial manner. We

disagree.

Under Rule 404(b) of the Federal Rules of Evidence,

the government may not provide evidence of a crime or

conviction to “prove a person's character” as a way of

showing that the person acted in conformity with that

character. Fed. R. Evid. 404(b)(1). But it may offer this

evidence to prove “motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b)(2). This Court has created

a three-prong test to determine the admissibility of 404(b)

evidence: (1) the evidence *444 must be relevant for some

reason other than proving the defendant's character; (2)

the “act must be established by sufficient proof to permit

a jury finding that the defendant committed the extrinsic

act”; and (3) the “probative value of the evidence must

not be substantially outweighed by its undue prejudice” or

by “confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

United States v. Matthews, 431 F.3d 1296, 1310–11 (11th

Cir. 2005) (quotation omitted); Fed. R. Evid. 403. The

government's evidence meets all three prongs.

Though Stepherson's briefing seems to focus on why this

evidence did not confirm his “identity” under Rule 404(b),

the government actually used the earlier conviction to prove

intent. Stepherson, by pleading not guilty, made “intent

a material issue which imposes a substantial burden on

the government to prove,” which it may do by providing

“qualifying Rule 404(b) evidence.” United States v. Edouard,

485 F.3d 1324, 1345 (11th Cir. 2007) (quotation omitted).

When the government offers a prior conviction to prove

intent, “its relevance is determined by comparing the

defendant's state of mind in perpetrating both the extrinsic and

charged offenses.” Id. (quotation omitted). If the state of mind

for both offenses is the same, the first prong of the Rule 404(b)

test is satisfied. Id. Here, the elements for Florida robbery

and Hobbs Act robbery are very similar, except for the added

commerce element in the Hobbs Act. Compare Fla. Stat. §

812.13(1), with 18 U.S.C. § 1951(b)(1). And the two acts

require the same state of mind, namely, an intent to knowingly

take someone else's property by means of actual or threatened

force or violence. See United States v. Woodruff, 296 F.3d

1041, 1046 (11th Cir. 2002); Fla. Stat. § 812.13(1).

Next, because the parties stipulated that the prior conviction

occurred, this “eliminated the government's burden to

produce evidence” of the conviction. United States v. Hardin,

139 F.3d 813, 817 (11th Cir. 1998). So the second prong was

satisfied.

United States v. Stepherson, 838 Fed.Appx. 438 (2020)

The government also satisfied the third prong, because

the probative value of admitting the conviction was not

outweighed by prejudice. We have “generally held” that a

prior conviction is “highly probative” if the prior offense

requires the same intent as the charged offense and if “these

acts are proximate in time to the charged offenses.” Baker,

432 F.3d at 1205 (quotation omitted). The two offenses did

share the same intent requirement, and, while there was a

ten-year gap between the Florida conviction and this charged

offense, the significance of this intervening time period is

diminished because Stepherson was in prison for six of

those years. See United States v. LeCroy, 441 F.3d 914, 926

(11th Cir. 2006). Furthermore, the district court “cured any

possible unfair prejudice” by the Court's repeated limiting

instructions to the jury that Stepherson's conviction could

only be considered for the limited purpose of determining

intent. See United States v. Brown, 665 F.3d 1239, 1248

(11th Cir. 2011) (cleaned up). We therefore cannot say that

the district court abused its discretion by admitting the

government's Rule 404(b) evidence.

But to qualify for this enhancement, the defendant's current

offense must be either a crime of violence or a controlled

substance offense. U.S.S.G. § 4B1.1(a)(2). And this Court

recently determined that Hobbs Act robbery is not a “crime

of violence” as defined under the Sentencing Guidelines.

United States v. Eason, 953 F.3d 1184, 1194–95 (11th Cir.

2020). Stepherson raises Eason for the first time on appeal,

so we review for plain error. This error, though, was plain and

affected Stepherson's substantial rights. See United States v.

Jones, 743 F.3d 826, 829–30 (11th Cir. 2014) (an “intervening

decision by this Court or the Supreme Court squarely

on point may make an error plain” (quotation omitted));

Molina-Martinez v. United States, ––– U.S. ––––, 136 S.

Ct. 1338, 1346–47, 194 L.Ed.2d 444 (2016). Moreover, a

“faulty enhancement” seriously affects the fairness, integrity,

and public reputation of judicial proceedings. United States

v. Bankston, 945 F.3d 1316, 1320 (11th Cir. 2019). The

government also admits that Stepherson's career offender

sentence must be vacated. We will therefore vacate and

remand to the district court for resentencing.

***

Stepherson's final challenge to his convictions is that he was

wrongly convicted of brandishing a firearm in furtherance

of a crime of violence, in violation of 18 U.S.C. § 924(c),

because he insists that Hobbs Act robbery is not a predicate

offense. But as Stepherson himself acknowledges in his brief,

this argument is squarely foreclosed by our precedent. See

*445 United States v. St. Hubert, 909 F.3d 335, 351–52 (11th

Cir. 2018); In re St. Fleur, 824 F.3d 1337, 1341 (11th Cir.

2016).

The evidence presented at trial was sufficient to permit

a rational trier of fact to find beyond a reasonable doubt

that Stepherson was guilty of conspiring to commit and

committing Hobbs Act robbery. And we reject Stepherson's

other arguments against his convictions. However, the

district court did err in classifying Stepherson as a career

offender under the Sentencing Guidelines. We therefore

affirm Stepherson's convictions, vacate his sentence, and

remand for resentencing.

AFFIRMED in

REMANDED.

part,

VACATED

part,

and

All Citations

Stepherson raises one final objection—this time, to his

sentence. At sentencing, the district court classified

Stepherson as a career offender under U.S.S.G. § 4B1.1(a)(2).

838 Fed.Appx. 438

Footnotes

In passing, Stepherson also seems to suggest that he is entitled to a new trial because of the jury's supposedly

inconsistent verdicts—acquitting him of robbing Hardy while convicting him of robbing Van Wyk. But a “jury's

United States v. Stepherson, 838 Fed.Appx. 438 (2020)

verdicts are insulated from review on the ground that they are inconsistent, as long as sufficient evidence

supports each finding of guilt.” United States v. Albury, 782 F.3d 1285, 1295 (11th Cir. 2015) (cleaned up).

End of Document

A-3

O70.3

Interference with Commerce by Robbery

Hobbs Act – Racketeering

(Robbery)

18 U.S.C. § 1951(a)

It’s a Federal crime to acquire someone else’s property by robbery and in

doing so to obstruct, delay, or affect interstate commerce.

The Defendant can be found guilty of this crime only if all the following

facts are proved beyond a reasonable doubt.

(1) the Defendant knowingly acquired someone else’s personal

property;

(2) the Defendant took the property against the victim's will, by using

actual or threatened force, or violence, or causing the victim to

fear harm, either immediately or in the future; and

(3) the Defendant's actions obstructed, delayed, or affected interstate

commerce.

“Property” includes money, tangible things of value, and intangible rights

that are a source or element of income or wealth.

“Fear” means a state of anxious concern, alarm, or anticipation of harm. It

includes the fear of financial loss as well as fear of physical violence.

“Interstate commerce” is the flow of business activities between one state

and anywhere outside that state.

The Government doesn’t have to prove that the Defendant specifically

intended to affect interstate commerce. But it must prove that the natural

consequences of the acts described in the indictment would be to somehow delay,

interrupt, or affect interstate commerce. If you decide that there would be any

effect at all on interstate commerce, then that is enough to satisfy this element. The

effect can be minimal.

ANNOTATIONS AND COMMENTS

18 U.S.C. § 1951(a) provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the

movement of any article or commodity in commerce, by robbery [shall be guilty

of an offense against the United States].

Maximum Penalty: Twenty (20) years imprisonment and applicable fine.

In United States v. Thomas, 8 F.3d 1552, 1562-63 (11th Cir. 1993), the Eleventh Circuit

suggested that the Government need not prove specific intent in order to secure a

conviction for Hobbs Act robbery. See also United States v. Gray, 260 F.3d 1267, 1283

(11th Cir. 2001) (noting that the Court in Thomas suggested that specific intent is not an

element under § 1951).

In United States v. Kaplan, 171 F.3d 1351, 1356-58 (11th Cir. 1999), the Eleventh Circuit

held that under § 1951 the affect on commerce need not be adverse. The effect on

commerce can involve activities that occur outside of the United States. See, e.g., Kaplan,

171 F.3d at 1355-58 (use of interstate communication facilities and claimed travel to

carry out extortion scheme’s object, which was the movement of substantial funds from

Panama to Florida, constituted sufficient affect under § 1951).

The commerce nexus for an attempt or conspiracy under § 1951 can be shown by

evidence of a potential impact on commerce or by evidence of an actual, de minimis

impact on commerce. Kaplan, 171 F.3d at 1354 (citations omitted). In the case of a

substantive offense, the impact on commerce need not be substantial; it can be minimal.

See id.; see also United States v. Le, 256 F.3d 1229 (11th Cir. 2001); U.S. v. Verbitskaya,

405 F.3d 1324 (11th Cir. 2005) (jurisdictional element can be met simply by showing this

crime had a minimal effect on commerce); U.S. v. White, No. 07-11793, 2007 U.S. App.

LEXIS 27819 (11th Cir. Nov. 29, 2007) (jurisdictional element can be met simply by

showing this crime had a minimal effect on commerce); U.S. v. Mathis, 186 Fed. Appx.

971 (11th Cir. 2006); U.S. v. Stamps, 201 Fed. Appx. 759 (11th Cir. 2006).

In U.S. v. Taylor, 480 F.3d 1025 (11th Cir. 2007), the Eleventh Circuit held that the

jurisdictional element is met even when the object of a planned robbery (i.e. drugs in a

sting operation) or its victims are fictional.

A-4

2.70

PATTERN CRIMINAL JURY INSTRUCTIONS

2.70

[ROBBERY] [EXTORTION] BY FORCE, VIOLENCE,

OR FEAR

18 U.S.C. § 1951(a) (HOBBS ACT)

The defendant is charged in count ————— with a

violation of 18 U.S.C. section 1951(a), commonly called the

Hobbs Act.

This law makes it a crime to obstruct, delay or affect

interstate commerce by [robbery] [extortion].

To ﬁnd the defendant guilty of this crime you must be

convinced that the government has proved beyond a reasonable doubt that:

First: the defendant obtained [attempted to obtain]

property from another [without][with] that person’s consent;

Second: the defendant did so by wrongful use of actual

or threatened force, violence, or fear; and

Third: as a result of the defendant’s actions, interstate

commerce, or an item moving in interstate commerce, was

actually or potentially delayed, obstructed, or affected in

any way or degree;

[Robbery is the unlawful taking of personal property

from another against his or her will. This is done by

threatening or actually using force, violence, or fear of

injury, immediately or in the future, to person or property.]

[Extortion is the obtaining of or attempting to obtain

property from another, with that person’s consent, induced

by wrongful use of actual or threatened force, violence, or

fear. The use of actual or threatened force, violence, or fear

is “wrongful” if its purpose is to cause the victim to give

property to someone who has no legitimate claim to the

property.]

“Property” includes money and other tangible and

240

2.70

SUBSTANTIVE OFFENSES

intangible things of value that are transferable – that is,

capable of passing from one person to another.

“Fear” means an apprehension, concern, or anxiety

about physical violence or harm or economic loss or harm

that is reasonable under the circumstances.

“Force” means an act capable of causing physical pain

or injury to another person. This requires more than the

slightest offensive touching, but may consist of only the

degree of force necessary to inﬂict pain.

“Obstructs, delays, or affects interstate commerce”

means any action which, in any manner or to any degree,

interferes with, changes, or alters the movement or transportation or ﬂow of goods, merchandise, money, or other

property in interstate commerce.

The defendant need not have intended or anticipated

an effect on interstate commerce. You may ﬁnd the effect is

a natural consequence of his actions. If you ﬁnd that the

government has proved beyond a reasonable doubt that the

defendant intended to take certain actions—that is, he did

the acts charged in the indictment in order to obtain property—and you ﬁnd those actions actually or potentially

caused an effect on interstate commerce, then you may ﬁnd

the requirements of this element have been satisﬁed.

Comment

In Sekhar v. United States, 570 U.S. 729 (2013), the Supreme Court

interpreted the term “property” under the Hobbs Act to mean something

of value that can be exercised, transferred, or sold. Id. at 736. The

extortion provision of the Hobbs Act requires not only the deprivation,

but also the acquisition, of property. 18 U.S.C. § 1951(b)(2). Thus, the

property, whether tangible or intangible, must actually be “obtained” in

order for there to be a violation. See Scheidler v. Nat’l Org. for Women,

Inc., 537 U.S. 393, 409 (2003) (holding that by interfering with, disrupting, and in some instances “shutting down” clinics that performed abortions, individual and corporate organizers of antiabortion protest

network did not “obtain or attempt to obtain property from women’s

rights organization or abortion clinics, and so did not commit “extortion” under the Hobbs Act).

The Tenth Circuit has consistently upheld the Hobbs Act as a

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2.70

PATTERN CRIMINAL JURY INSTRUCTIONS

permissible exercise of the authority granted to Congress under the

Commerce Clause, both in the context of robbery, United States v.

Shinault, 147 F.3d 1266, 1278 (10th Cir. 1998), and extortion, United

States v. Bruce, 78 F.3d 1506, 1509 (10th Cir. 1996). It also has made

clear that only a de minimis effect on commerce is required, United

States v. Wiseman, 172 F.3d 1196, 1214–15 (10th Cir. 1999), and has

upheld a trial court’s refusal to instruct that a substantial effect is

required, United States v. Battle, 289 F.3d 661, 664 (10th Cir. 2002).

The court seems to have struggled with the language that “commerce . . . was actually or potentially . . . affected” and that the

government can meet its burden by evidence that the defendant’s actions caused or “would probably cause” an effect on interstate commerce.

In United States v. Nguyen, 155 F.3d 1219 (10th Cir. 1998), the court

observed that use of the words probable and potential “while perhaps

not the best way to explain to the jury the interstate commerce requirement, did not constitute error.” Id. at 1229. In United States v. Wiseman, supra, the court upheld an instruction which stated, in pertinent

part, that the government could meet its burden by evidence that money

stolen for businesses “could have been used to obtain such foods or services” from outside the state, as opposed to “would” have been so used.

Id. at 1215 (emphasis in original). The court, citing Nguyen, held that

the instruction was not prejudicial because only a potential effect on

commerce is required. Id. at 1216. The Tenth Circuit continues to approve instructions requiring proof of actual, potential, de minimis or

even just probable effect on commerce. See United States v. Curtis, 344

F.3d 1057, 1068–69 (10th Cir. 2003).

The Tenth Circuit has concluded that the force element in Hobbs

Act robbery requires “violent force,” as deﬁned in Johnson v. United

States, 559 U.S. 133, 139–40 (2010). See United States v. MelgarCabrera, 892 F.3d 1053, 1064–65 (10th Cir. 2018). Accordingly, the jury

should be instructed that “force” means an act “capable of causing physical pain or injury to another person.” United States v. Jefferson, 911

F.3d 1290, 1299 (10th Cir. 2018).

Use Note

When the government’s evidence is that the robbery or extortion

actually affected commerce, the words “potentially,” “probably” and

“could” can be eliminated from the instruction.

The instruction should be modiﬁed in the case of an “attempt.” See

Instruction 1.32.

242

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.