                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 29 2000
                          FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 99-5010

          v.                                      (D.C. No. 98-CR-86-K)

 JASON RYAN EATON,                                    (N.D. Oklahoma)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 1

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      1
        Defendant Eaton’s notice of appeal was filed more than ten but less than
forty days after entry of judgment. The matter was partially remanded to the
district court for a determination of excusable neglect under Fed. R. App. P.
                                                                      (continued...)
      Jason Ryan Eaton appeals the denial of his motion to withdraw his guilty

plea to violating the Hobbs Act, 18 U.S.C. § 1951, by unlawfully attempting, and

threatening by violence in furtherance of a plan, to take and obtain items from the

presence of an employee at the Citgo Quikmart, 1802 S. Sheridan Road, Tulsa,

Oklahoma; and to two counts of carrying and using a firearm, in violation of 18

U.S.C. § 924 (c). His principal argument, variously stated, is that the federal

court lacked jurisdiction because he was neither lawfully charged with a federal

crime nor admitted to any conduct which obstructed, delayed or affected

commerce, which is an essential and jurisdictional element of a Hobbs Act

violation. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.



                                 BACKGROUND

      On June 5, 1998, Mr. Eaton was indicted on three counts of violating the

Hobbs Act, 18 U.S.C. § 1951, and three firearms counts, 18 U.S.C. § 924(c), in

connection with three armed robberies. Count One charged Eaton with

unlawfully obstructing, delaying or affecting commerce by robbing a Texaco

station on March 11, 1998, and Count Two charged the use of a firearm in that


      1
       (...continued)
4(b)(4). See United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979). On
remand, the district court determined there was excusable neglect, and granted
defendant’s motion to extend time to appeal. Accordingly, this court has
appellate jurisdiction. See 28 U.S.C. § 1291.

                                         -2-
robbery. Count Three charged Eaton with unlawfully obstructing, delaying or

affecting commerce by robbing the Citgo at 10822 East 41st Street, Tulsa,

Oklahoma, on April 19, 1998, and Count Four charged the use of a firearm in

that robbery. Count Five charged Eaton with obstructing, delaying or affecting

commerce by robbing and attempting to take and obtain items from the presence

of an employee of Citgo Quikmart, 8102 S. Sheridan Road, Tulsa, Oklahoma, by

means of actual and threatened force and violence on April 19, 1998, and Count

Six charged the use of a firearm in that robbery.

      On August 24, 1998, the day set for trial, Mr. Eaton entered a plea of

guilty to Counts Two, Four and Five. The plea was supported by an extensive

written plea agreement, in which Eaton admitted the elements of Counts Two,

Four and Five as charged; and the government agreed, at the appropriate time, to

dismiss Counts One, Three, and Six. The district court conducted an extensive,

careful and complete Fed. R. Crim. P. 11 hearing, covering 33 pages of

transcript.

      As to the factual basis for the plea on Count Five, Mr. Eaton testified

under oath as follows:

             DEFENDANT:         The third robbery was committed later that
      night around 11:00 o’clock, I believe. Justin James came over to the
      apartment and which we were on the way to his house, not
      deliberately going to the Citgo and the Citgo happened to be on the
      way to his house. And we were planning on going to do some type
      of crime, but we had not planned on doing that Citgo.

                                         -3-
      THE COURT:          Who was with you?

      DEFENDANT:          Justin Lee James, the codefendant.

      THE COURT:          Okay. A friend of yours?

      DEFENDANT:          Yes, Your Honor.

      THE COURT:          All right.

       DEFENDANT:        We came to a stoplight where the Citgo was
by his house on the way to his house and he said, “Why don’t we do
that Citgo?”

       So we pulled around to the back parking lot and we parked the
truck, got out and walked up to the back gate or the back fence and
then stood there for a little while and watched what was going on at
the store. And we saw the man enter the store, then leave again –

      THE COURT:          What do you mean the man?

      THE WITNESS:        – in the cooler.

      THE COURT:         Who are you talking about when you say
you saw the man enter the store?

      DEFENDANT:          The employee.

      THE COURT:          Okay.

       DEFENDANT:         Saw the employee exit the store and walk
into the cooler where he was stocking the beer. Justin Lee James
walked up to the store and looked around inside the store and he
came back and said that there was nothing, that there was no one in
it and none of the doors were locked.

       Then we walked up to the store and we stood outside the
cooler and I had a bad feeling about it. So we walked back to the
other side of the fence and we stood there for a little while longer.


                                   -4-
And at this time I was, in a way, being provoked to carry it on and so
we agreed to walk up to the store even if –

      THE COURT:          Your accomplice was egging you on?

      DEFENDANT:          Yes, Your Honor.

      THE COURT:          Okay.

     DEFENDANT:          We walked back up to the store and we
walked into the cooler and I pointed the gun at the employee and –

      THE COURT:          The same weapon?

      THE WITNESS:        Different weapon, Your Honor.

      THE COURT:          What kind of weapon is this?

      DEFENDANT:          It was a .32.

      THE COURT:          Where did you get a hold of that weapon?

      DEFENDANT:          From Dan Snellgrove.

      THE COURT:          Spell that.

      DEFENDANT:          S-N-E-L-L-G-R-O-V-E.

      THE COURT:          Who is he?

      DEFENDANT:          He was the brother of a friend of mine.

     THE COURT:       Did you trade him or did you buy the
weapon? How did you –

      DEFENDANT:          Borrowed it.

      THE COURT:          Borrowed it?

      DEFENDANT:          (Nods head up and down.)

                                  -5-
      THE COURT:         Okay.

        DEFENDANT:        We walked into the cooler. I asked the
employee to freeze, which he did, asking me what did I want. I told
him I wanted the keys to the store. Then Justin Lee James told him
to give me the wallet and he took the wallet out and set it on the –
set it on the shelf.

       And then I asked him if the alarm was on and he said no. And
I asked hm if there was any certain code you have to push to open
the registers. He said, “One, two, three, enter.”

       And I asked him if there was money in the register and he
said, “Yes.”

       I reached to grab the wallet and he lunged at me, grabbing the
gun and forcing it upward and then I was turning around. And
Justin Lee James, during the struggle, hit the man in the head several
times with the gun, with the butt of the gun in the head, causing him
to bleed.

      During the struggle, he knocked my hat and sunglasses off,
which after the man let me go, I picked up the sunglasses and the hat
and turned around and pulled the trigger and fired one shot at him
wounding him in the stomach.

      Then the man started running off and I started running the
opposite way back towards the car. And I turned around and looked
at him one more time and pointed the gun at him, and then I ran
away, got in the car and drove off.

      THE COURT:         You shot at it but did not hit him?

      DEFENDANT:         No, Your Honor, I wounded the man.

      THE COURT:         So you did wound him?

      DEFENDANT:         Yes, Your Honor.



                                  -6-
            THE COURT:         And then did you get away with anything
      from this robbery attempt?

             DEFENDANT:         The man’s wallet.

            THE COURT:          The man’s wallet. How much was in the
      wallet?

             DEFENDANT:         $16.00.

Tr. of Aug. 24, 1998, Hr’g at 23-27.

      At the conclusion of the plea hearing, the court found that Eaton had

admitted the elements of the crimes charged, that there was a factual basis for the

pleas of guilty, and that Eaton’s pleas were knowingly, intelligently and

voluntarily entered. The court then accepted the pleas and found Eaton guilty as

charged.

      Subsequently, Mr. Eaton obtained new counsel, and on December 4, 1998,

moved to withdraw his guilty pleas. That motion was heard by the district court

on December 7, 1998, the date previously set for sentencing.

      At the hearing, counsel for Mr. Eaton raised one central legal argument

challenging the jurisdiction of the court on the basis of United States v. Lopez,

514 U.S. 549 (1995). He stated: “Until I was approached to become involved in

this case, Your Honor, I was not aware that armed robbery had become a federal

crime, and I have grave concerns about the ability of the act of congress that




                                          -7-
makes this a federal offense to withstand a jurisdictional challenge.” Tr. of

Dec. 7, 1998, Hr’g at 2-3.

      The district court rejected this argument, denied Eaton’s motion to

withdraw his guilty plea, and sentenced him to 39 years in prison, calculated as

follows: 168 months on Count Five, 60 months on Count Two, and 240 months

as to Count Four, all to run consecutively. In addition, the court ordered

restitution in the amount of $56,313.46, and three years’ supervised release.

      On appeal, Mr. Eaton primarily presents several versions of his argument

about jurisdiction, in essence, as follows: The Hobbs Act is unconstitutional as

applied to robberies intra-state; the indictment’s language was insufficient to

involve federal jurisdiction; and, if the district court initially had jurisdiction,

that jurisdiction was lost because no factual basis was developed showing that

Eaton’s conduct delayed, obstructed or affected commerce, thus omitting an

essential element of the crime. As Eaton’s brief on appeal summarizes it:

             The fundamental issue in this appeal comes down to
      jurisdiction. How far can the Government go to prosecute an
      individual for what has been, historically, a State crime and a State
      crime only? On the other side of the coin, Jason Eaton is asking this
      Court to question the amount of evidence that needs to be presented
      to the trial court before the court can be said to be vested with
      subject matter jurisdiction. In this case, the evidence was
      insufficient to establish the necessary connection with interstate
      commerce. Therefore, the trial court lacked jurisdiction to find
      Appellant guilty and to sentence him.

Appellant’s Br. at 25.

                                           -8-
                                  DISCUSSION

      We review for abuse of discretion a district court’s denial of a motion to

withdraw a guilty plea. United States v. Carr, 80 F.3d 413, 419 (10th Cir. 1996).

However, we review questions of law, including jurisdiction, de novo.      See

United States v. Cuch, 79 F.3d 987, 990 (10th Cir. 1996).



                                        A.

      Mr. Eaton’s brief on appeal does not cite a single case directly on point in

support of his arguments regarding jurisdiction and the lawfulness of the Hobbs

Act charge here or the adequacy of his plea to that charge. On the other hand, he

tacitly and correctly acknowledges that there is controlling law to the contrary.

Appellant’s Br. at 23.

      The Hobbs Act, 18 U.S.C. § 1951(a), provides as follows:

             Whoever in any way or degree obstructs, delays, or affects
      commerce or the movement of any article or commodity in
      commerce, by robbery or extortion or attempts or conspires so to do,
      or commits or threatens physical violence to any person or property
      in furtherance of a plan or purpose to do anything in violation of this
      section shall be fined under this title or imprisoned not more than
      twenty years, or both.

      That Act, among other things, constitutionally conferred federal

jurisdiction over persons committing in-state robberies or attempts, or threats of

or actual physical violence to any person, when that conduct in any way or degree


                                        -9-
obstructs, delays or affects commerce or the movement of any article or

commodity in commerce, or is in furtherance of a plan or purpose to do so.

United States v. Wiseman, 172 F.3d 1196, 1214 (10th Cir.), cert. denied, 120 S.

Ct. 211 (1999); United States v. Romero, 122 F.3d 1334, 1340 (10th Cir. 1997);

United States v. Bruce, 78 F.3d 1506, 1509 (10th Cir. 1996); United States v.

Bolton, 68 F.3d 396, 398-99 (10th Cir. 1995).

      It follows that Count Five of the indictment in this case, which recited and

related these elements and jurisdictional facts relating to the April 19, 1998,

robbery, attempt, and violence and threats of violence by Eaton at the Citgo

Quikmart, established jurisdiction in the district court. See United States v.

Brown, 164 F.3d 518, 521 (10th Cir. 1998). All else became a matter of proof by

the government at trial, or plea of guilty by the defendant.

      In numerous cases we have described the level and type proof (including

factual admissions by a plea of guilty) necessary to establish the elements

described above. The Act covers any act, attempt, conspiracy, violence, or threat

of violence, which in any way or degree obstructs, delays or affects commerce, or

is in furtherance of a plan to do so. Accordingly, we have held that only a

minimal effect on commerce must be shown. See United States v. Malone, No.

99-5201, 2000 WL 1199084, at *19-20 (10th Cir. Aug. 23, 2000); United States

v. Nguyen, 155 F.3d 1219, 1224 (10th Cir. 1998), cert. denied 525 U.S. 1167


                                         -10-
(1999). We have also held that, in the circumstances of the particular case, it is

sufficient to show only that the conduct in question potentially delayed,

obstructed or affected commerce, or that it could (as opposed to would) do so, or

that such effect is probable. Id. at 1228; Wiseman, 172 F.3d at 1215-16. 2

      Under these standards, Eaton’s recitation of the facts, set out above, amply

established both an actual, and an attempted, affect on commerce to a meaningful

degree, and the commission of violence and the threat of violence in furtherance

of a purpose to do so. He did not just rob a man of his wallet. He went to a

combination gas station/convenience store for the purpose of robbing it, and in

furtherance of that plan began by threatening the attendant with a firearm. He

asked the attendant about alarms, codes and money in the till. He then shot the

attendant when he resisted, and, in the event, obviously shut down or interfered

with the business for the time it was without an attendant and for the time

necessary for a police investigation. The circumstances prevented the purchase

of fuel for vehicles—a commodity and service quintessentially involved in

interstate commerce—and goods moving in interstate commerce; and affected the



      2
        The recent decision by the Supreme Court in Jones v. United States, No.
99-5739, 2000 WL 645885 (U.S. May 22, 2000), does not require a different
analysis under the facts before us. The business in question was employed in
interstate commerce, and the affect or potential affect on commerce here was
more than de minimis. The guilty plea removed any necessity for further
quantification. Malone, 2000 WL 1199084, at *19-20.

                                        -11-
business of a corporation directly involved in interstate commerce. That

obstruction, delay, and affect would probably continue for a period of time

following April 19, 1998.

      Furthermore, the fact that Eaton did not get to the cash register because the

attendant resisted and got shot does not relieve him of the charge of attempted

depletion of the business’s assets (taking items from the presence of the

attendant), which would affect commerce. 18 U.S.C. § 1951(a); Indictment,

Count Five. See Wiseman, 172 F.3d at 1214-16 (discussing depletion of assets).

Cf., United States v. Arena 180 F.3d 380, 394 2d Cir. 1999) (the fact that

defendant is ultimately unsuccessful in stealing the cash in the register does not

alter his liability under the Hobbs Act). Nor would failure to get to the register

alter the criminal nature of Eaton’s violence and threat of violence in furtherance

of his plan to do so.

      We have undertaken the foregoing review of Eaton’s factual admissions

due to his arguments: (1) that the district court allegedly failed to establish a

factual basis for a necessary element of the crime (affect on interstate commerce)

and therefore jurisdiction failed; and (2) his plea was not knowing and voluntary

because he did not know that his acts and attempt allegedly did not and could not

affect interstate commerce. As indicated above, both arguments are meritless.




                                         -12-
      There is, of course, a separate and more direct ground for rejecting Eaton’s

claims. By pleading guilty unconditionally, Eaton admitted all material facts

charged in the indictment, see United States v. Broce, 488 U.S. 563, 569 (1989),

including all factual predicates to jurisdiction, see Brown, 164 F.3d at 521.

Therefore, Eaton’s unconditional guilty plea “established facts sufficient by

operation of law to maintain subject matter jurisdiction through the entry of

judgment.” Id. at 522.



                                         B.

      Mr. Eaton’s counsel also argued to the district court that Eaton’s waiver of

his right to appeal or mount a collateral attack, as part of the plea agreement, was

unlawful. It is not clear from the record, or on appeal, whether (1) this claim was

made simply to permit the kind of jurisdictional appeal discussed above; or (2) it

is supposed to be a free-standing argument for wholly invalidating the plea

agreement and supporting withdrawal of the plea; or (3) it is intended to preserve

the right to appeal or pursue collateral proceedings on any ground despite the

guilty plea.

      If the first reason listed above is the purpose of the claim, then the

argument is moot since we have dealt with the merits of the jurisdictional appeal

in our discussion above. And, we reject the other possibilities. Absent


                                        -13-
exceptions not applicable here, we and other courts have upheld a knowing and

voluntary waiver of the right to appeal. See United States v. Black, 201 F.3d

1296, 1300-03 (10th Cir. 2000); United States v. Atterberry, 144 F.3d 1299, 1300

(10th Cir. 1998); United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir.

1998); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994); United States v.

Michlin, 34 F.3d 896, 898 (9th Cir. 1994).

      Finally, Eaton argues that his plea agreement should fail for lack of

consideration since, at his age, 19, a 39-year sentence is not qualitatively

different from the sentence, up to life, which he could have received upon a

finding of guilty on all six counts of the indictment. He cites no cases on point.

Since the issue was not raised below, we would review it only for plain error and

reject it on the merits. Cf. Hernandez, 134 F.3d at 1437. However, since, as

indicated herein, we conclude that Mr. Eaton’s plea agreement was lawful, the

terms of the waiver in that agreement preclude him from appealing his sentence.

See Black, 201 F.3d at 1300-03.



                                          C.

      In summary, the federal rules provide that a motion to withdraw a guilty

plea may be granted for any “fair and just reason” Fed. R. Crim. P. 32 (e). The




                                         -14-
defendant bears the burden of persuasion. See United States v. Gordon, 4 F.3d

1567, 1572 (10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994).

       At the hearing in the district court on Mr. Eaton’s motion to withdraw his

plea, his counsel stated several times that his only reasons were the legal

arguments which we have described and addressed above. Tr. of Dec. 7, 1998,

Hr’g at 2, 3, 5. Beyond that, counsel represented to the court that “[t]he terms of

the plea agreement and the specifics are not objectionable to the defendant in any

way . . . .” Id. at 2.

       Since, as indicated above, there is no merit to the legal challenges raised

by Eaton’s counsel, it follows that the district court did not err in denying Mr.

Eaton’s motion to withdraw his guilty plea. It is unnecessary for us to further

review the factors set out in Gordon at 1572. Furthermore, we have thoroughly

reviewed Mr. Eaton’s plea agreement and the hearing at which he entered his

plea of guilty, as well as other material in the record, and conclude that his pleas

of guilty were both knowing and voluntary. See United States v. Libretti, 38

F.3d 523, 529 (10th Cir. 1994), cert. denied, 514 U.S. 1035 (1995) (we review de

novo whether a plea was knowing and voluntary).




                                         -15-
                                CONCLUSION

      For the reasons stated above, we AFFIRM the district court’s denial of

Mr. Eaton’s motion to withdraw his guilty plea, and DISMISS the appeal of his

sentence.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




                                      -16-
