   Case: 12-50846   Document: 00512500910    Page: 1   Date Filed: 01/15/2014




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

                                                                 FILED
                              No. 12-50846                January 15, 2014
                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                        Clerk


                                       Plaintiff–Appellee

versus

GRALYN LEON WHITE

                                       Defendant–Appellant



                              No. 12-50847



UNITED STATES OF AMERICA,

                                       Plaintiff–Appellee

versus

GRALYN LEON WHITE; DAVIIAN DWANE ROBERTS

                                       Defendants–Appellants



              Appeals from the United States District Court
                    for the Western District of Texas
                        USDC No. 7:08-CR-213-1
                        USDC No. 7:11-CR-276-1
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                                        No. 12-50847

Before STEWART, Chief Judge, JOLLY and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       On the pretense of wanting to buy drugs, Gralyn White and Daviian
Roberts entered the house of a drug dealer, Monique Miller (the “Miller rob-
bery”), and robbed her of drugs and money. A few days later, White and a few
others surprised another individual, whom they also believed to deal drugs, at
his house and robbed him of his money and possibly drugs (the “Lutsi rob-
bery”). A jury convicted White and Roberts of the robbery of Miller, under the
Hobbs Act, 1 and of aiding and abetting the use of firearms in the commission
of that offense. 2 The jury convicted White (but not Roberts), under the Hobbs
Act, of the Lutsi robbery and of aiding and abetting the use of firearms. The
sentences included restitution for both robberies.
       In this consolidated appeal, White and Roberts challenge their Hobbs
Act convictions for insufficiency of evidence of an interstate nexus. White addi-
tionally challenges the enhancement for his “second and subsequent convic-
tion” for the Lutsi robbery, though he concedes the issue is foreclosed by
Supreme Court precedent. Roberts challenges the order that he pay restitution
for the Lutsi robbery, for which he was never convicted.
       Although this circuit has never upheld a Hobbs Act conviction for a single
robbery of a single drug dealer, the best reading of our caselaw is that an inter-
state nexus can been met under such circumstances, so we affirm the



       * 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.
       1   18 U.S.C. § 1951.
       2   18 U.S.C. § 924(c).
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convictions. Because the parties did not brief the relevant caselaw from other
circuits, we express no opinion as to whether this circuit should require that
the government prove that the drugs must have originated outside the state.
We also affirm White’s sentence and Roberts’s restitution order.


                                        I.
                                        A.
      This court reviews challenges to the sufficiency of the evidence de novo,
United States v. Harris, 420 F.3d 467, 470 (5th Cir. 2005), “view[ing] the evi-
dence in the light most favorable to the verdict, inquiring only whether a
rational juror could have found each element of the crime proven beyond a rea-
sonable doubt,” United States v. Villafranca, 260 F.3d 374, 377 (5th Cir. 2001)
(internal quotation marks and citation omitted). “A reviewing court may set
aside the jury’s verdict on the ground of insufficient evidence only if no rational
trier of fact could have agreed with the jury.” United States v. Rashad, 687
F.3d 637, 642 (5th Cir. 2012).
      In support of its assertion that the robberies affected interstate com-
merce, the government points to testimony by DEA Agent Dante Sorianello,
who was certified as an expert in cocaine and hydroponic marihuana traffick-
ing. Sorianello said that because the coca plant, from which cocaine is pro-
duced, is not grown in the United States, cocaine found here would necessarily
have been smuggled into the United States. Sorianello further testified that
hydroponic marihuana sold in the local market was generally grown in Cali-
fornia or Colorado. Although he conceded that hydroponic marihuana could be
grown locally, the seeds likely would be from outside Texas. The government
also urges that there was an effect on interstate commerce because had Miller
or Lutsi tried to replace the stolen drugs, those drugs would have had to come
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from outside Texas.
      White contends that Sorianello provided no testimony about whether his
conduct affected interstate commerce. Roberts, meanwhile, maintains that the
Miller robbery—the only one of which he was convicted—amounts to an act
against an individual, not a business. Roberts claims that the theft of cash
from Miller did not establish the requisite connection to interstate commerce
because Miller’s testimony did not specify that the cash would have been used
to purchase additional drugs for sale; because Miller’s involvement with
cocaine trafficking was small-scale and was not a continuing business; because
the government did not present sufficient evidence showing Miller’s mari-
huana came from outside Texas; and because there was insufficient evidence
to find that marihuana was stolen from Miller.


                                       B.
      The question is whether the evidence is sufficient for a rational jury to
find that the defendants’ acts affected interstate commerce. Criminal acts
against an individual can meet the interstate commerce nexus only if “(1) the
acts deplete the assets of an individual who is directly and customarily engaged
in interstate commerce; (2) the acts cause or create the likelihood that the indi-
vidual will deplete the assets of an entity engaged in interstate commerce; or
(3) the number of individuals victimized or the sum at stake is so large that
there will be some cumulative effect on interstate commerce.” United States v.
Collins, 40 F.3d 95, 100 (5th Cir. 1994) (internal quotation marks omitted).
      Our caselaw, however, treats illegal drugs somewhat differently and sug-
gests that the required interstate nexus can be established by a single robbery
of a single drug dealer. In this circuit’s first case upholding a Hobbs Act
conviction involving drug dealers, two former police officers had been convicted
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of extorting money from local dealers:
          The Fifth Circuit has adopted the “depletion of assets” test.
      Under this theory, taking money away from a business engaged in
      interstate commerce obstructs, delays, or affects commerce, as
      required for a Hobbs Act violation. The evidence at trial showed
      that the defendants took money away from Green’s and Frazier’s
      drug businesses. This court has previously held that “drug traf-
      ficking affects interstate commerce.” This holding was based on a
      detailed Congressional finding to that effect. The extortion at
      issue here, which depleted funds otherwise available for drug traf-
      ficking, therefore impeded interstate commerce sufficiently to
      implicate the Hobbs Act.

United States v. Davenport, No. 93-1216, 36 F.3d 89 (table), 1994 WL 523653,
at *11 (5th Cir. Sept. 6, 1994) (unpublished) (internal citations omitted).
      Then in United States v. Villafranca, 260 F.3d 374 (5th Cir. 2001), a pro-
secutor was convicted under the Hobbs Act for “fixing” drug cases for money:
      Most of the defendants that paid Villafranca and Garcia to fix their
      cases were caught while traveling to and from Mexico, and occa-
      sionally to and from other states. Many of the defendants were
      engaged in the shipment of large quantities of drugs. Thus, the
      extortion by Villafranca involved delaying or expediting the move-
      ment of individuals across state and international lines and
      affected commerce in drugs. The requirement of a nexus to inter-
      state commerce is met in this case.

Id. at 378 (footnotes omitted).    “[I]nterfering with or facilitating narcotics
trafficking [is] sufficient to create an effect on interstate commerce, since drugs
are traded on an interstate market.” Id.
      The case of United States v. Rubio, 321 F.3d 517 (5th Cir. 2003), similarly
involved convictions under the Hobbs Act for “fixing” drug cases. In United
States v. Partida, 385 F.3d 546, 561 (5th Cir. 2004), the court again held that
the interstate nexus is met if the defendants “depleted funds that would other-
wise have been available for drug trafficking.” There, two police officers were
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convicted under the Hobbs Act for receiving money in exchange for protecting
drug shipments.
       None of these cases directly requires that we affirm the convictions here.
The scope of the criminal activities in each of them was much broader, involv-
ing police officers who extorted money from multiple dealers in exchange for
protection or prosecutors who would extort money in exchange for fixing drug
cases. 3 Here, on the other hand, we have robberies of individual drug dealers
for the sole purpose that the perpetrators needed money. 4 Such cases are usu-
ally well suited for prosecution by the states. 5
       After reviewing the holdings and reasoning in Davenport, Villafranca,
and Partida, however, we cannot say that the instant petty robberies lack an
interstate nexus. Both “depleted funds that would otherwise have been avail-
able for drug trafficking,” Partida, 385 F.3d at 561, and “[t]he extortion at issue
here, which depleted funds otherwise available for drug trafficking, therefore
impeded interstate commerce sufficiently to implicate the Hobbs Act,” Daven-
port, 1994 WL 523653, at *11. Finally, White and Roberts “interfere[ed] with
. . . narcotics trafficking . . . .” Villafranca, 260 F.3d at 378.


       3 Similarly, in United States v. Herrera, 466 F. App’x 409 (5th Cir. 2012), cert. denied,
133 S. Ct. 833, and cert. denied, 133 S. Ct. 834, and cert. denied, 133 S. Ct. 834, and cert.
denied, 133 S. Ct. 834, and cert. denied, 133 S. Ct. 835 (2013), members of a prison gang were
convicted under the Hobbs Act for extorting “quotas” from several drugs dealers in a wide-
ranging conspiracy that included murder and violence. The conspiracy involved the “coor-
dination between free [gang] members and prisoners incarcerated in different states, and
between individuals on both sides of the United States–Mexico border.” Id. at 418.
       4 As one participant in the robberies explained not so eloquently, “Actually, one day
we just didn’t have no money. We was broke. Bad timing, you know. Woke up, didn’t have
no money, needed—family was in need, couldn’t take it. We got—got together and, you know,
put a plan up, and we robbed somebody.”
       5“[T]he Hobbs Act was intended to reach only certain activities that hamper interstate
business, reflecting the long-recognized principle that the states are best positioned and
equipped to enforce the general criminal laws.” Collins, 40 F.3d at 101.
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       Moreover, the first prong of the Collins test—“the acts deplete the assets
of an individual who is directly and customarily engaged in interstate com-
merce”—could apply here. The dealers were targeted because they were drug
dealers or believed to be so; that is, White and Roberts expected them to have
not only cash but also drugs that they could potentially resell. Thus, the vic-
tims were directly and customarily engaged in, or believed to be engaged in,
interstate commerce. 6
       Our sister circuits have upheld Hobbs Act convictions for robberies of
individual drug dealers. Although at least two other circuits require proof that
the drugs originated out-of-state, that issue was not briefed, and we express no
opinion as to the necessity of proving out-of-state origination in future cases in
which this issue might be properly raised. 7
       The evidence showed that Miller and Lutsi were or were believed to be
drug dealers and that White aided and abetted the robberies of them, and Rob-
ert aided abetted the robbery of Miller. The victims were individuals custom-
arily engaged in, or believed to be engaged in, interstate commerce, and that
they were targeted for that reason. 8 The verdict is therefore supported by suffi-
cient evidence.


       6  The Hobbs Act has been applied to the interstate drug market, and it applies gener-
ally to illegal businesses. See United States v. McFarland, 311 F.3d 376, 401 (5th Cir. 2002)
(per curiam) (en banc) (affirmance by equally divided court); United States v. Box, 50 F.3d
345, 353 (5th Cir. 1995).
       7 See United States v. Walker, 657 F.3d 160, 182 (3d Cir. 2011), which collects cases
from the First, Second, Fourth, Sixth, Seventh, and Eighth Circuits for the proposition that
the robbery of an individual drug dealer meets the interstate nexus at least where the drugs
originated outside the state. See United States v. Needham, 604 F.3d 673 (2d Cir. 2010), and
United States v. Peterson, 236 F.3d 848 (7th Cir. 2001), for the proposition that the govern-
ment must prove that the drugs originated outside the state or were sold to out-of-state
customers.
       8Both participants and victims testified, and their testimony suggests not only that
drugs were stolen at the Miller robbery, but moreover that the perpetrators entered Miller’s
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                                            II.
      White contends that the district court erred in applying the sentencing
enhancement of 18 U.S.C. § 924(c), based on a second or subsequent conviction,
because the second offense used to apply the enhancement was contained in
the same indictment as was the predicate offense. White concedes that the
issue is foreclosed by Deal v. United States, 508 U.S. 129, 132–37 (1993), hold-
ing that the second of two offenses charged in the same indictment triggers the
mandatory-minimum-sentencing provision. In United States v. Lopez-Urbina,
434 F.3d 750, 761 (5th Cir. 2005), this court held that Deal is still binding
precedent.


                                           III.
      Roberts challenges the imposition of restitution for the Lutsi robbery, for
which he was not convicted. Under the Mandatory Victim Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, a defendant “is only responsible for paying resti-
tution for the conduct underlying the offense for which he was convicted.”
United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005). Because Roberts
did not object, however, we review for plain error. He must therefore show
(1) an error (2) that is clear or obvious and (3) affects his substantial rights and
(4) that the error “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. Although the district court erred in assessing the
restitution for the Lutsi robbery, this is not one of those rare proceedings in
which the unpreserved error seriously affected the fairness, integrity, or public




house on pretense of conducting a drug sale. The testimony also suggests that the perpetra-
tors knew Lutsi sold drugs and that they may have been targeting him for that reason.
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reputation of judicial proceedings. 9
       The judgments appealed from are AFFIRMED.




       9 The court in Inman, 411 F.3d at 595, and in United States v. Hickman, 331 F.3d 439
(5th Cir. 2003), found plain error where MVRA restitution was ordered for counts of which
the defendants were not convicted. The court did not, however, consider prong four of the
plain-error test. Similarly, in United States v. Austin, 479 F.3d 363 (5th Cir. 2007), the court
did conclude that prong four was met, but it did so by mere reliance on Inman and Hickman—
which never addressed prong four—for that conclusion. In this case, we exercise the discre-
tion given to each panel to decline to grant plain-error relief.
                                               9
