                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                         NOVEMBER 28, 2006
                             No. 05-16515                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 05-00042-CR-F-N

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                  versus

TARIO STAMPS,

                                                    Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      _________________________

                           (November 28, 2006)

Before DUBINA, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Tario Stamps and a codefendant were charged with three counts of bank

robbery, in violation of 18 U.S.C. §§ 2113(d) and 2, one count of interference with

commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Hobbs Act),

four counts of possession/use of a firearm during a robbery, in violation of 18

U.S.C. §§ 924(c)(1)(A)(ii), (iii) and 2, and one count of retaliation against a

witness or victim, in violation of 18 U.S.C. §§ 1513(b)(2) and 2. A jury found

Stamps guilty of all charges and the district court sentenced Stamps to a total of

96-years’ (1,152 months’) imprisonment. Stamps’s term of imprisonment included

the consecutive minimum seven-year (84-month) term of imprisonment on the first

§ 924(c)(1) conviction, in which the jury found that a firearm was brandished, and

consecutive 25-year (300-month) sentences on the three remaining § 924(c)(1)

convictions. See § 924(c)(1)(A)(ii), (c)(1)(C). The court’s restitution order

included $85,000 to C & C Jewelers. On appeal, Stamps challenges the Hobbs Act

jury instruction, the imposition of the three 25-year terms of imprisonment on his

second through fourth § 924(c)(1) convictions, and the calculation of the restitution

awarded to C & C Jewelers. For the reasons set forth more fully below, we affirm.

      We review de novo the legal correctness of a jury instruction. United States

v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). “A sentencing issue not raised in

the district court is reviewed for plain error, or error that is clear or obvious and



                                            2
affects substantial rights.” United States v. Richardson, 166 F.3d 1360, 1361 (11th

Cir. 1999).

      Stamps first challenges the Hobbs Act jury instruction, arguing that the

district court erred when it overruled his objection that more than a minimal effect

on interstate commerce was required to establish a violation of the Hobbs Act. The

Hobbs Act provides that “[w]hoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commodity in commerce, by

robbery . . . shall be fined under this title or imprisoned not more than twenty

years, or both.” 18 U.S.C. § 1951(a). As Stamps correctly recognizes, we have

held that, to prove a violation of the Hobbs Act, the government need only show a

minimal effect on commerce, not a substantial effect. United States v.

Verbitskaya, 406 F.3d 1324, 1331-32 (11th Cir. 2005), cert. denied, 126 S.Ct. 1095

(2006); United States v. Gray, 260 F.3d 1267, 1275-76 (11th Cir. 2001). Thus, the

district court did not err when it declined to instruct the jury that it must find a

substantial effect on interstate commerce.

      Again recognizing that his argument is foreclosed by precedent, Stamps next

argues that the district court erred when it sentenced him to consecutive 25-year

sentences on three of his § 924(c)(1) convictions, which were contained in the

same indictment. Because Stamps did not raise this objection in the district court,



                                             3
our review is for plain error. Richardson, 166 F.3d at 1361. For a second or

subsequent § 924(c)(1) conviction, the minimum term of imprisonment is 25 years.

18 U.S.C. § 924(c)(1)(C). In Deal v. United States, 508 U.S. 129, 130-37, 113

S.Ct. 1993, 1995-99, 124 L.Ed.2d 44 (1993), the Supreme Court held that the

second through sixth § 924(c)(1) convictions, arising from a single proceeding,

were second or subsequent convictions within the meaning of § 924(c)(1). As his

position is foreclosed by Deal, Stamps can show neither error nor plain error.

      Stamps next contends that the district court clearly erred when it ordered

$85,000 in restitution to C & C Jewelers, arguing that the district court should have

ordered restitution based on the replacement cost of the jewelry and not its fair

market value. Relying on United States v. Shugart, 176 F.3d 1373 (11th Cir.

1999), Stamps reasons that, although jewelry is a commodity, it is not a fungible

commodity because it is not sold at a set rate, and to grant restitution based on the

amount of money for which C & C Jewelers might have sold all the items gives it a

windfall.

      We generally review the district court’s use of a particular measure of value

for abuse of discretion and its finding as to a specific amount of restitution for clear

error. See Shugart, 176 F.3d at 1375. However, because Stamps did not object to

the district court’s calculation of his restitution obligation, our review is for plain



                                            4
error. United States v. Dabbs, 134 F.3d 1071, 1084 (11th Cir. 1998). “[W]here

neither the Supreme Court nor this Court has ever resolved an issue, and other

circuits are split on it, there can be no plain error in regard to that issue.” United

States v. Gerrow, 232 F.3d 831, 835 (11th Cir. 2000) (citation and quotation marks

omitted).

      When restitution is required for offenses resulting in the loss of the victim’s

property, if the property cannot be returned, the defendant must pay the greater of

the “value of the property” at either the date of the loss or the date of sentencing,

less the value of any property that is returned. 18 U.S.C. § 3663A(b)(1)(B). In

determining the amount of restitution, the district court is not limited to the fair

market value of an item, but may also measure value based on the replacement

cost. Shugart, 176 F.3d at 1375. “‘[V]alue,’ as § 3663A uses that term,

contemplates a restitution order based on replacement cost where actual cash value

is unavailable or unreliable. Whether actual cash value is unavailable or unreliable

is an issue of fact, and a district court’s decision to use replacement cost is a matter

of discretion.” Id.

      At trial, the owner of C & C Jewelers testified that the men who robbed his

store took jewelry worth “roughly 80 something thousand in retail” and whose cost

was “22, 24 thousand.” In preparing the presentence investigation report, the



                                            5
probation officer stated that C & C Jewelers suffered a monetary loss of $85,000,

and that $85,000 in restitution was owed to C & C Jewelers.

      We conclude that the district court’s use of the retail value of the jewelry

was not plain error. It is not clear or obvious under Shugart that the district court

erred in using the jewelry’s retail value. In Shugart we noted the lack of

marketability and uniqueness of a church, Shugart, 176 F.3d at 1375, whereas the

stolen jewelry was offered for sale. Stamps cites no binding precedent considering

whether restitution for either jewelry or lost inventory should be based on the retail

fair market value of those goods or on the replacement cost or wholesale value of

the goods. Moreover, other circuits have upheld the use of the retail or fair market

value of property stolen from businesses when determining the amount of

restitution. United States v. Susel, 429 F.3d 782, 784 (8th Cir. 2005) (affirming

the use of retail value of stolen software sold on eBay, resulting in lost sales to the

software company); United States v. Rice, 38 F.3d 1536, 1544 (9th Cir. 1994)

(concluding that there was no abuse of discretion where restitution was based on

“book price,” which included a profit markup, rather than manufacturing cost of

free samples illegally obtained by the defendant); United States v. Lively, 20 F.3d

193, 195, 200-03 (6th Cir. 1994) (affirming district court’s use of the retail value of

the goods rather than the cost of manufacture or the wholesale value for restitution



                                            6
to mail order companies from whom the defendant fraudulently obtained

merchandise).

      In light of the foregoing, Stamps’s convictions and sentences are

      AFFIRMED.




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