               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0625n.06
                                                                                       FILED
                                       Case No. 16-4031                          Nov 09, 2017
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE SOUTHERN DISTRICT OF
RAPHAEL D. PERSON, JR.,                            )       OHIO
                                                   )
       Defendant-Appellant.                        )




       BEFORE: CLAY, ROGERS, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Defendant Raphael D. Person Jr. appeals his conviction and

sentence for three violations of the Hobbs Act, 18 U.S.C. § 1951(a), and two counts of using or

carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). For the reasons

set forth below, we AFFIRM Person’s conviction but REMAND for resentencing.

                                       BACKGROUND

       Beginning in 2011, Person and others conspired to rob people selling cars through

Craigslist, an online marketplace. They devised a scheme to respond to car advertisements, pay

for cars in cash, and then “rob the money back.” They committed two such robberies, one in

2011 and another in 2012.
Case No. 16-4031, United States v. Person


        In the 2011 robbery, one of Person’s accomplices, Ricardo Velasquez-Flores, responded

to a Craigslist advertisement for a 2002 Acura RSX owned by Cedo Zecevic and his son,

Slobadan. The Zecevics later sold the Acura to Velasquez-Flores in a parking lot for $5,900 in

cash.

        While the Zecevics drove home (in a different car), they were secretly followed by

Person and another accomplice, Mickey Velazquez. When the Zecevics got out of the car, they

were confronted by Person and Velazquez, who were carrying AR-15 assault rifles. The gunmen

claimed to be police officers and demanded money that they said had been obtained through a

drug sale. At one point, Person shot his rifle into the air, to intimidate the Zecevics. The

Zecevics handed over the $5,900 they had received for the Acura, and the robbers fled.

        In the 2012 robbery, Velazquez responded to a Craigslist advertisement for a Nissan

350Z. The sellers, Mark Gillespie and his father, also named Mark Gillespie, met Velazquez and

another accomplice in a warehouse. The sellers were paid $18,000 in cash for the car. As they

left the warehouse, they were confronted by Person and his brother, armed with AR-15s. The

gunmen claimed to be Drug Enforcement Agents and told the Gillespies to turn over “the drugs”

and “the [drug] money.” One of the gunmen shot into the air to intimidate the Gillespies. Later,

Person “hit [the son] with the butt of the gun” on the “base of [the son’s] head and neck area.”

The blow caused the son “to stumble halfway to the ground,” but did not require medical

attention. The robbers took the $18,000 payment for the Nissan and fled.

                                      Procedural History

        In 2013, Person was charged with the following five crimes:

       Count 1: Conspiracy to commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a)
        (based on both robberies);



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Case No. 16-4031, United States v. Person


      Count 2: Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) (based on the 2011
       robbery);

      Count 3: Discharging a firearm during a crime of violence, in violation of 18 U.S.C.
       § 924(c) (based on the 2011 robbery);

      Count 4: Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) (based on the 2012
       robbery); and

      Count 5: Discharging a firearm during a crime of violence, in violation of 18 U.S.C.
       § 924(c) (based on the 2012 robbery).

       At trial, the jury heard testimony from three of Person’s co-conspirators (including

Velazquez and Velasquez-Flores), the Zecevics, the Gillespies, and law enforcement officials.

At the close of evidence, Person moved for acquittal under Federal Rule of Criminal Procedure

29, arguing that the government had “failed to prove or to present sufficient evidence of proof

from which any rational[] juror could conceive beyond a reasonable doubt that . . . Person . . . is

guilty of each and every count of the Indictment.” The district court denied the motion.

       Before summation, the parties stipulated that

       Craigslist . . . i[s] an internet service provider, headquartered in San Francisco,
       CA, and on or about [the dates of the robberies], it was engaged in commercial
       activities that affected interstate commerce, that is, Craigslist provided internet
       users the ability to post items for sale on its website, which was on and/or within
       the internet.

(R. 155, stipulation, PageID # 667.) The stipulation was read to the jury. Later, Person was

found guilty on all counts.

       In calculating a guidelines sentencing range for the Hobbs Act offenses, the Presentence

Investigation Report (PSR) noted that Person had hit Gillespie (the son) with a gun.

Accordingly, the PSR applied a two-point offense-level increase for causing “bodily injury.” See

U.S.S.G. § 2B3.1(b)(3)(A).     Person objected, arguing that there “was no indication that



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Case No. 16-4031, United States v. Person


[Gillespie] suffered any bruising, swelling, soreness, headaches or other ailment as a result of the

strike to his head and neck . . . .” The district court overruled the objection, explaining that

       the [application] note to the guidelines defines bodily injury as, quote, any
       significant injury, and then it gives examples. For instance, it says an injury that
       is painful or obvious or is of the type for which medical attention ordinarily would
       be sought. . . .

       Now, Mr. Gillespie testified at trial that he, quote, was hit with the butt of the
       gun . . . [at] the base of the head and neck area. And . . . [that] it was enough to
       stumble me halfway to the ground, end quote. He did not go to the hospital,
       but . . . this evidence is sufficient to establish that Mr. Gillespie sustained a, quote,
       significant injury. Being hit with the butt of a gun at the lower head and neck area
       with sufficient force to compel him halfway to the ground would . . . result in a
       painful and obvious injury.

(R. 195, sentencing tr., PageID # 1611–12.)

       With the bodily-injury enhancement, Person’s final offense level for the Hobbs Act

offenses was 24. Given his criminal history category of IV, this yielded a guidelines range of

77 to 96 months’ imprisonment. Without the enhancement, his guidelines range would have

been 63 to 78 months’ imprisonment.

       The district court sentenced Person to 86 months’ imprisonment on the Hobbs Act

counts. It also sentenced him to 10 years’ imprisonment on the first § 924(c) count and to

25 years’ imprisonment on the second § 924(c) count. Each § 924(c) sentence reflected the

mandatory minimum. See 18 U.S.C. § 924(c)(1)(A)(iii) (first § 924(c) conviction yields 10-year

mandatory minimum if a gun was discharged); § 924(c)(1)(C)(i) (second § 924(c) conviction

yields 25-year mandatory minimum). By statute, the sentences for the § 924(c) counts had to be

imposed consecutively to each other and to the sentence for the Hobbs Act counts.

§ 924(c)(1)(D)(ii). Consequently, Person’s aggregate sentence was 506 months’ imprisonment.

This timely appeal followed.


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Case No. 16-4031, United States v. Person


                                           ANALYSIS

I.     Hobbs Act Offenses

       There was sufficient evidence to support Person’s Hobbs Act convictions,

notwithstanding Person’s argument that the government did not introduce enough evidence to

prove the commerce element.

       A.      Standard of Review

       “We review a challenge to the sufficiency of the evidence supporting a criminal

conviction de novo.” United States v. Collins, 799 F.3d 554, 589 (6th Cir. 2015). “In evaluating

such a challenge, we are tasked with determining ‘whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979) (emphasis in original)).

       B.      Analysis

       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 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.

18 U.S.C. § 1951(a).

       The Act defines “commerce” as

       commerce within the District of Columbia, or any Territory or Possession of the
       United States; all commerce between any point in a State, Territory, Possession,
       or the District of Columbia and any point outside thereof; all commerce between
       points within the same State through any place outside such State; and all other
       commerce over which the United States has jurisdiction.


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Case No. 16-4031, United States v. Person


§ 1951(b)(3). The Act’s broad language “exercise[s] the full measure of Congress’s commerce

power,” while ensuring “that applications of the Act do not exceed Congress’s authority” under

the Commerce Clause. Taylor v. United States, 136 S. Ct. 2074, 2081 (2016).

       To determine how far this commerce element extends—and what the Government
       must prove to meet it—[a court should] look to [the Supreme Court’s] Commerce
       Clause cases. . . . [Specifically,] there are three categories of activity that
       Congress may regulate under its commerce power: (1) “the use of the channels of
       interstate commerce”; (2) “the instrumentalities of interstate commerce, or
       persons or things in interstate commerce, even though the threat may come only
       from intrastate activities”; and (3) “those activities having a substantial relation to
       interstate commerce, . . . i.e., those activities that substantially affect interstate
       commerce.” United States v. Lopez, 514 U.S. 549, 558–59 (1995). . . .
       [A]ctivities in this third category—those that “substantially affect” commerce—
       may be regulated so long as they substantially affect interstate commerce in the
       aggregate, even if their individual impact on interstate commerce is minimal.

Id. at 2079.

       The government proved the commerce element in this case by showing that Person’s

crimes involved the internet, which is a channel of interstate commerce. See, e.g., United States

v. Chambers, 441 F.3d 438, 450 (6th Cir. 2006) (stating that “channels of interstate commerce”

were “utilized” where defendant sent illicit images over the internet); United States v. Horne,

474 F.3d 1004, 1006 (7th Cir. 2007) (“eBay, the online auction site, is an avenue of interstate

commerce, like an interstate highway or long-distance telephone service.”); United States

v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006) (“[T]he Internet . . . is both an instrumentality and

channel of interstate commerce.” (quotation marks and citation omitted)). Specifically, the trial

evidence showed that Person and his accomplices chose targets based on Craigslist

advertisements. In addition, the parties stipulated that Craigslist is an online marketplace that

“provid[es] internet users the ability to post items for sale on its website.” Therefore, the jury

heard evidence that the robberies involved a channel of interstate commerce, i.e., the internet.

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Case No. 16-4031, United States v. Person


II.    Sentencing Enhancement for Causing “Bodily Injury”

       The district court did not err in applying a two-point offense-level increase for causing

bodily injury.

       A.        Standard of Review

       “In reviewing a district court’s application of the Sentencing Guidelines, this Court will

accept the findings of fact of the district court unless they are clearly erroneous and will give due

deference to the district court’s application of the Guidelines to the facts. A factual finding is

clearly erroneous when the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.            We review a district court’s legal

conclusions regarding the Sentencing Guidelines de novo.” United States v. Moon, 513 F.3d

527, 539–40 (6th Cir. 2008) (quotation marks, citations, and alteration omitted).

       B.        Analysis

       The guidelines require a two-point offense-level increase if “any victim sustained bodily

injury . . . .” U.S.S.G. § 2B3.1(b)(3)(A). “‘Bodily injury’ means any significant injury; e.g., an

injury that is painful and obvious, or is of a type for which medical attention ordinarily would be

sought.” U.S.S.G. § 1B1.1 application note 1(B).

       Here, Mark Gillespie (the son) testified that Person “hit [him] with the butt of the gun” at

the “base of the head and neck area.” He further testified that the hit made him “stumble

halfway to the ground,” but did not require medical attention.             This Court has upheld

applications of the “bodily injury” guideline in similar circumstances.           United States v.

Davenport, 30 F. App’x 338, 340 (6th Cir. 2002) (“The district court did not err in holding that a

blow to the head with a gun is ‘significant’ within the meaning of the sentencing guidelines.”);

United States v. Austin, 81 F.3d 161 (Table), 1996 WL 109500 at *12 (6th Cir. 1996) (“[I]t is


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Case No. 16-4031, United States v. Person


‘obvious’ that someone struck on the head with a gun, unless their head is well-protected, will

experience some degree of pain. It is true that the proof presented at a sentencing hearing must

satisfy the preponderance of the evidence standard, but this standard is met where an assumption

of pain is perfectly rational under the circumstances.” (citation omitted)). Consequently, there

was no error here, especially given the due deference afforded to the district court’s application

of the guidelines to the facts. See Moon, 513 F.3d at 539–40.

       Person argues that the district court improperly focused on his action (hitting Gillespie)

rather than its result (whether Gillespie was injured). But the district court did focus on the

result: it determined that Gillespie “sustained a . . . significant injury” within the meaning of the

guidelines. Person also cites various cases in which the relevant injury was more serious than

Gillespie’s, and cases from other circuits suggesting that the injury must last for a meaningful

period. But as shown above, this Court has upheld applications of the “bodily injury” guideline

in cases like this one. In addition, this Court has never held that a “bodily injury” must last for a

definable period of time.

I.     Resentencing under Dean

       Finally, remand is warranted in light of Dean v. United States, 137 S. Ct. 1170 (2017),

which held that district courts may consider the existence of § 924(c) mandatory minimums

when determining the sentences on other counts.

       A.      Standard of Review

       Person did not argue in district court that his Hobbs Act sentence should take into

account his lengthy § 924(c) sentences. Therefore, his challenge is reviewed for plain error.

United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). “In reviewing for plain error, we

must consider whether there was plain error that affects substantial rights and that, in our


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Case No. 16-4031, United States v. Person


discretionary view, seriously affects the fundamental fairness, integrity, or public reputation of

judicial proceedings.” Id.

       B.      Application

       At the time of sentencing, binding precedent required sentencing courts to “determine an

appropriate sentence for the underlying crimes without consideration of the § 924(c) sentence.”

United States v. Franklin, 499 F.3d 578, 586 (6th Cir. 2007). Consequently, when determining

Person’s Hobbs Act sentence, the district court could not consider his § 924(c) sentences, which

totaled 35 years’ imprisonment.

       While Person’s appeal was pending, however, the Supreme Court decided Dean,

abrogating the Franklin rule.     Under Dean, a sentencing court can consider a defendant’s

§ 924(c) sentence when calculating any remaining sentences. Id. at 1175–78.

       In light of Dean, we remand for resentencing.         Person was sentenced to 35 years’

imprisonment on the § 924(c) counts. Had the district court known it could consider that period

of incarceration when determining Person’s Hobbs Act sentence, it may have sentenced Person

differently. For example, it might have determined that 35 years’ imprisonment on the § 924(c)

counts was sufficient to “protect the public” and “afford adequate deterrence,” thus warranting a

more lenient sentence on the Hobbs Act counts. Indeed, the Supreme Court made a similar

observation in Dean, explaining that

       Dean committed the two robberies at issue here when he was 23 years old. That
       he will not be released from prison until well after his fiftieth birthday because of
       the § 924(c) convictions surely bears on whether—in connection with his
       predicate crimes—still more incarceration is necessary to protect the public.
       Likewise, in considering “the need for the sentence imposed . . . to afford
       adequate deterrence,” [18 U.S.C.] § 3553(a)(2)(B), the District Court could not
       reasonably ignore the deterrent effect of Dean’s 30–year mandatory minimum.

Id. at 1176. Consequently, resentencing is appropriate in light of Dean.


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Case No. 16-4031, United States v. Person


                                      CONCLUSION

       For the reasons stated above, we AFFIRM Person’s conviction and the application of the

“bodily injury” guideline but REMAND for resentencing in light of Dean.




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