     Case: 14-20664      Document: 00513248756         Page: 1    Date Filed: 10/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                 FILED
                                                                             October 27, 2015
                                    No. 14-20664
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KENTON DEON HARRELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-298-5


Before WIENER, HIGGINSON, and COSTA, Circuit Judges
STEPHEN A. HIGGINSON, Circuit Judge: *
       Kenton Deon Harrell was convicted by a jury of conspiracy to interfere
with commerce by robbery, and sentenced to 135 months of imprisonment and
three years of supervised release.          On appeal, Harrell challenges (1) the
sufficiency of the evidence supporting his conviction and (2) the district court’s
denial of his request for a mitigating role sentence reduction. Finding no
reversible error, we affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-20664

                                       I.
      On February 21, 2013, United States Postal Service contractor John
Cormier had just picked up mail from two Houston post offices when his van
was cut off and boxed in by two vehicles. A man carrying a firearm exited
one of those vehicles and told Cormier to get out of the van. Cormier did so
and ran away, though not before the man struck Cormier in the head with
his gun. Having secured the postal van, the robbers proceeded to a different
location to load the stolen mail into different vehicles. Although the
conspirators expected the van to contain mail worth $2 million or more, its
actual contents were much less valuable. Harrell was charged with a Hobbs
Act conspiracy after he was interviewed by postal investigators. A jury
acquitted a codefendant but found Harrell guilty. This appeal timely
followed.
                                      II.
      Harrell first argues that there was insufficient evidence to support the
jury’s finding that he agreed to take part in the conspiracy. Harrell moved for
a judgment of acquittal at the close of the government’s case and at the close
of all of the evidence, so “the standard of review in assessing his sufficiency
challenge is whether, considering all the evidence in the light most favorable
to the verdict, a reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt.” United States v. Mendoza, 226
F.3d 340, 343 (5th Cir. 2000).      “[W]e accept ‘all credibility choices and
reasonable inferences made by the trier of fact which tend to support the
verdict.’” United States v. Jefferson, 751 F.3d 314, 320–21 (5th Cir. 2014)
(quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)).




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                                   No. 14-20664

      There are two elements of a Hobbs Act violation: “(1) a robbery, act of
extortion, or an attempt or conspiracy to rob or extort; and (2) an interference
with interstate commerce.” United States v. Robinson, 119 F.3d 1205, 1212
(5th Cir. 1997). 1   To prove a conspiracy, the prosecution must show “an
agreement between two or more persons to commit a crime, and an overt act
by one of the conspirators to further the conspiracy.” United States v. Box, 50
F.3d 345, 349 (5th Cir. 1995) (citation omitted).         Both the existence of a
conspiracy and the agreement between particular co-conspirators may be
proven by circumstantial evidence. United States v. Chaney, 964 F.2d 437, 449
(5th Cir. 1992); see also United States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992) (“The agreement, a defendant’s guilty knowledge and a defendant’s
participation in the conspiracy all may be inferred from the ‘development and
collocation of circumstances.’” (citation omitted)). Although “mere presence at
the crime scene or close association with conspirators, standing alone, will not
support an inference of participation in the conspiracy,” “presence or
association is one factor that the jury may rely on . . . in finding conspiratorial
activity by a defendant.” Maltos, 985 F.2d at 746 (quoting United States v.
Magee, 821 F.2d 234, 239 (5th Cir. 1987)).
      Further, “a conviction may be based solely upon the uncorroborated
testimony of an accomplice if the testimony is not incredible or otherwise
insubstantial on its face.” United States v. Silva, 748 F.2d 262, 266 (5th Cir.
1984). “Testimony is incredible as a matter of law only if it relates to facts that
the witness could not possibly have observed or to events which could not have
occurred under the laws of nature.” United States v. Posada-Rios, 158 F.3d
832, 861 (5th Cir. 1998).



      1  Harrell does not argue that the government presented insufficient evidence of
interference with interstate commerce.


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       Charles Ray Blake, a codefendant, testified that another coconspirator
approached Harrell and asked him and Blake to find someone to stop the postal
van so that it could be robbed. According to Blake, Harrell then attended
several meetings held to plan the robbery, discussed with Blake the prospect
of obtaining lots of money from the robbery, drove with Blake to the scene of
the robbery and to the place where the proceeds were loaded into several
vehicles, and expected to get something from the robbery even after it occurred.
Blake’s statements were corroborated by Harrell’s own admissions to postal
investigators that he agreed to help find someone to stop the postal van in
exchange for twenty percent of the profits, attended several planning meetings,
went to watch the robbery and transfer of stolen goods, attempted to follow the
vehicles containing those goods, and felt “ripped off” when he did not receive
any proceeds. Cell phone records confirmed Harrell’s presence in the vicinity
where the robbery was executed. When viewed in the light most favorable to
the verdict, this evidence suffices to uphold the jury’s finding that Harrell
joined a conspiracy to interfere with commerce by robbery. 2
                                            III.
       Harrell also argues that the district court erred by refusing to apply
U.S.S.G. § 3B1.2, which “provides a range of adjustments for a defendant who
plays a part in committing the offense that makes him substantially less
culpable than the average participant.”            U.S.S.G. § 3B1.2 cmt. n.3(A).           A



       2  Harrell complains of a lack of evidence that he himself performed an overt act in
furtherance of the conspiracy, but no such evidence was required. See Chaney, 964 F.2d at
449 (“To establish a conspiracy . . . the government must prove beyond a reasonable doubt
that the defendant entered into an agreement with at least one person to commit a crime . . .
and that any one of these conspirators committed an overt act in furtherance of that
agreement.” (emphasis added)). And Harrell provides no authority supporting his argument
that he cannot be convicted of conspiracy because other participants “repudiated” his
continued involvement after he and Blake failed to find someone who would agree to help
stop the van.


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minimal participant is one who is “plainly among the least culpable of those
involved in the conduct of a group” and demonstrates a “lack of knowledge or
understanding of the scope and structure of the enterprise and of the activities
of others.” Id. cmt. n.4. A minor participant is any participant “who is less
culpable than most other participants, but whose role could not be described
as minimal.” Id. cmt. n.5. A minimal participant’s offense level is reduced by
four levels; a minor participant’s, by two levels. U.S.G. § 3B1.2(a), (b).
      For properly preserved claims, we review de novo the district court’s
interpretation and application of the Sentencing Guidelines. See United States
v. Cedillo-Narvaez, 761 F.3d 397, 401 (5th Cir. 2014). “Whether [a defendant]
was a minor or minimal participant is a factual determination that we review
for clear error.” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
“A factual finding is not clearly erroneous if it is plausible in light of the record
read as a whole.” Id. The district court’s refusal to grant a reduction for
minimal or minor participant status is entitled to great deference. United
States v. Devine, 934 F.2d 1325, 1340 (5th Cir. 1991).
      “It is not enough that a defendant ‘does less than other participants; in
order to qualify as a minor participant, a defendant must have been peripheral
to the advancement of the illicit activity.’” Villanueva, 408 F.3d at 204 (quoting
United States v. Miranda, 248 F.3d 434, 446–47 (5th Cir. 2001)). The district
court did not clearly err in finding that Harrell’s participation was not
peripheral. Trial evidence indicated that Harrell agreed to try to find someone
to stop the postal van, recruited Blake into the conspiracy, and attended
several meetings in preparation for the robbery. He also went to the scene of
the robbery and to the offloading location in hopes of receiving some of the
proceeds. Additionally, the Presentence Investigation Report indicates that
Blake and Harrell claimed they could secure a Houston police officer to stop



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the postal van, and Blake testified that Harrell accompanied him as he tried
to convince a man named “Homey the Clown” to assist in stopping the van. In
light of this evidence, the district court’s finding that Harrell’s role was not
minor—let alone minimal—was not clearly erroneous.            Finally, we have
previously rejected as unsupported by case law “the proposition that criminal
participation must be minor where the wrongdoer does not profit monetarily.”
Burton v. United States, 237 F.3d 490, 504 (5th Cir. 2000).
                                      IV.
      The jury’s verdict was supported by sufficient evidence and the district
court’s refusal to impose a mitigating role reduction was not clearly erroneous.
Accordingly, the conviction and judgment are AFFIRMED.




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