                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4677



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JOHN SINGLETON, a/k/a Boogie, a/k/a DU, a/k/a
Devine Understanding,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Cameron McGowan Currie, District
Judge. (CR-02-419)


Argued:   February 3, 2006                    Decided:   May 2, 2006


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Traxler
and Judge Duncan joined.


ARGUED: Keir Michael Weyble, BLUME, WEYBLE & LOMINACK, L.L.C.,
Columbia, South Carolina, for Appellant. Mark C. Moore, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.     ON BRIEF:     John F.
Hardaway, Columbia, South Carolina, for Appellant.    Jonathan S.
Gasser, Acting United States Attorney, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
GREGORY, Circuit Judge:

     In this appeal, John Singleton challenges his conviction for

robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and two

other convictions for which the Hobbs Act charge was the predicate

federal offense.     He also challenges his sentence, which was

imposed prior to United States v. Booker, 543 U.S. 220 (2005).   For

the following reasons, we affirm Singleton’s convictions, but

vacate his sentence and remand for resentencing.



                                 I.

     Fleming Lee owned and operated the Lee Mart convenience store

in Denmark, South Carolina, which obtained much of its inventory

from out-of-state suppliers.    Lee lived in a trailer next door to

the Lee Mart, and his practice was to take the store’s daily

proceeds to the safe in his residence.   He would later deposit most

of these proceeds in his business bank account to cover Lee Mart

expenses.   A few days before Memorial Day in 2000, Singleton

recruited his brother-in-law Eric Johnson to participate in a

robbery of the Lee Mart.    Johnson was familiar with the Lee Mart

because his wife Roslyn (Singleton’s sister) had previously been

employed there.    Johnson also knew about Lee’s habit of taking Lee

Mart proceeds to his home, and told Singleton about this practice.

     At a Memorial Day cookout, Singleton discussed the proposed

robbery of the Lee Mart with two other men, Sherman Coulter and


                                  3
Jonathan Sapp, who also agreed to participate.           That evening, the

four drove to Denmark and found that the Lee Mart was closed.

While Singleton and Johnson stayed in the car, Coulter and Sapp

went to Lee’s residence armed with a 9-millimeter handgun.               They

rushed into Lee’s home and demanded that Lee tell them where “the

money” was.    J.A. 165.     Sapp shot Lee in the abdomen when Lee

refused to cooperate, injuring him. Coulter discovered Lee’s safe,

and the two men beat Lee until he opened it.                  When Lee then

struggled   with   the   intruders,    Coulter   shot   Lee   in   the   face.

Realizing that Lee was still alive, Sapp shot Lee again in the head

as the two left.   Coulter and Sapp returned to the car with between

$3,600 and $6,0001 and told Singleton and Johnson that they had

killed Lee.   Singleton remarked, “that is one less white person I

have to worry about.”      J.A. 146.

     Lee’s body was discovered the next morning.               The Lee Mart

remained closed for fourteen or fifteen days while the Lee family

made arrangements for Lee’s funeral and the future operation of the

store.   Singleton, Johnson, Sapp, and Coulter were arrested and

charged in federal court.      Eventually, Singleton’s co-defendants

pled guilty and agreed to cooperate with the Government. Singleton

was tried by a jury on a six-count indictment.          He was convicted of



     1
      There is some uncertainty as to the exact amount taken.
Johnson testified that his equally divided share of the robbery
proceeds was $900, J.A. 145, whereas Sapp testified that the total
taken was around $6,000, J.A. 147.

                                       4
robbery under the Hobbs Act, in violation of 18 U.S.C. §§ 1951 and

2   (Count     1);    using   a   firearm       in   a   crime   of   violence   under

circumstances constituting murder, in violation of 18 U.S.C. §§

924(j)(1) and 2 (Count 2); conspiracy to knowingly use and carry

firearms during and in relation to, and to possess firearms in

furtherance of crimes of violence, in violation of 18 U.S.C. §

924(o) (Count 4); and possession of a firearm by a convicted felon,

in violation of 18 U.S.C. §§ 922(g) and 924(a) (Count 5).                     The jury

returned a verdict of not guilty on Counts 3 and 6, which related

to a stolen firearm.

      At Singleton’s sentencing, the district court calculated a

total offense level of 43 pursuant to the United States Sentencing

Guidelines Manual (2003), which corresponds to a sentence of life

imprisonment         regardless    of   the      defendant’s      criminal    history

category.      Singleton raised an objection to the application of the

Guidelines under Blakely v. Washington, 542 U.S. 296 (2004), but

his argument was foreclosed at that time by our order in United

States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (en banc order), in

which     we   held    that   Blakely   did      not     apply   to   the   Sentencing

Guidelines.2          The Government requested that the district court

announce an alternative sentence, pursuant to our recommendation in



      2
      After the entry of this order, we issued the full opinion for
the case in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004)
(en banc). The Supreme Court later vacated Hammoud in light of
Booker. See United States v. Hammoud, 543 U.S. 1097 (2005).

                                            5
Hammoud, but the district judge declined to do so.         Instead, the

court followed the then-mandatory Guidelines and imposed a life

sentence.   During the hearing, the court rejected Singleton’s

requests for a downward departure.



                                   II.

     We first address Singleton’s challenges to his Hobbs Act

robbery conviction.    The Hobbs Act prohibits robbery or extortion

that “in any way or degree obstructs, delays, or affects commerce

or the movement of any article or commodity in commerce.”               18

U.S.C. § 1951(a).   Thus, the two elements of a Hobbs Act crime are:

(1) robbery or extortion, and (2) interference with commerce.

Stirone v. United States, 361 U.S. 212, 218 (1960).         “The charge

that interstate commerce is affected is critical since the Federal

Government’s   jurisdiction   of   this   crime   rests   only   on   that

interference.”   Id.   Given the broad language of the Hobbs Act, we

have held that this jurisdictional element is satisfied where the

instant offense has a “minimal” effect on interstate commerce.

United States v. Spagnolo, 546 F.2d 1117, 1119 (4th Cir. 1976).

     This jurisdictional element of the Hobbs Act is the focus of

Singleton’s appeal.    First, Singleton argues that in light of the

Supreme Court’s commerce power jurisprudence in United States v.

Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S.

598 (2000), the Government should have been required to prove a


                                   6
substantial effect on commerce from the instant robbery--rather

than simply a minimal effect--in order for the application of the

Hobbs Act to be constitutional in his case.                        Second, he submits

that even if only a minimal effect is required, the evidence

presented here was insufficient to support such a finding by the

jury.    We disagree with both contentions.



                                             A.

     Singleton first asserts that the minimal effects standard, as

applied    to    his    robbery      conviction          under   the     Hobbs   Act,   is

inconsistent with the principles of Lopez and Morrison, and thus

that his conviction is unconstitutional.                         In United States v.

Williams,       342    F.3d    350    (4th        Cir.    2003),    we    held   without

qualification that Lopez and Morrison “do not disturb our continued

application of th[e] ‘minimal effects’ standard [to the Hobbs

Act].”    Id. at 354.         This holding is consistent with the decisions

of our sister circuits.              See United States v. Capozzi, 347 F.3d

327, 335-36 (1st Cir. 2003); United States v. Clausen, 328 F.3d

708, 710-11 (3d Cir. 2003); United States v. Fabian, 312 F.3d 550,

554-55 (2d Cir. 2002); United States v. Gray, 260 F.3d 1267, 1272-

76 (11th Cir. 2001); United States v. Morris, 247 F.3d 1080, 1085-

87 (10th Cir. 2001); United States v. Peterson, 236 F.3d 848, 851-

52 (7th Cir. 2001); United States v. Smith, 182 F.3d 452, 456 (6th

Cir. 1999); United States v. Harrington, 108 F.3d 1460, 1465-66


                                             7
(D.C. Cir. 1997); United States v. Atcheson, 94 F.3d 1237, 1241-43

(9th Cir. 1996).    But see United States v. McFarland, 311 F.3d 376,

409   (5th   Cir.   2002)   (en   banc)    (per    curiam)    (Garwood,    J.,

dissenting) (dissenting with half of the evenly divided en banc

court on the basis that the Hobbs Act’s jurisdictional element

should require substantial effects).

      Although Singleton suggests that we can distinguish Williams,

which involved the robbery of $1000 in drug trafficking proceeds

from a drug dealer, we find no basis on which to do so here.              Both

Singleton and the defendant in Williams robbed business assets from

the individual operating the business.         See Williams, 342 F.3d at

355 (characterizing the stolen drug trafficking proceeds as the

drug dealer’s “business assets”).         The fact that the two robberies

involved different types of businesses is of no consequence.               The

relevant fact in Williams was that the affected business was an

economic enterprise engaged in interstate commerce. See id. (“Drug

dealing . . . is an inherently economic enterprise that affects

interstate commerce.”); id. at 354 (noting that “the minimal

effects standard does not contravene the teachings of Lopez and

Morrison”    in   circumstances   “where     the   Hobbs     Act   reaches   a

quintessentially economic activity that, taken in the aggregate,

substantially impacts interstate commerce”). The convenience store

here meets that test--the Lee Mart was a business that purchased a




                                     8
substantial portion of its inventory, including grocery items and

gasoline, from out-of-state suppliers.

     Accordingly, following Williams, we conclude that it was

proper for the district court to apply the minimal effects standard

in this case and that the district court instructed the jury

properly.



                                   B.

     Alternatively, Singleton contends that even if a minimal

effect on commerce satisfies this element of a Hobbs Act offense,

the evidence here was insufficient to show that minimal effect.

When reviewing the sufficiency of the evidence to support the

conviction, we view “the evidence and the reasonable inferences to

be drawn therefrom in the light most favorable to the Government.”

Williams, 342 F.3d at 355 (internal quotation marks omitted).

     “The Hobbs Act . . . does not require proof that a defendant

intended to affect commerce or that the effect on commerce was

certain; it is enough that such an effect was the natural, probable

consequence of the defendant’s actions.”         Id. at 354 (citing

Spagnolo,   546   F.2d   at   1118-19).   This   effect   on   commerce

requirement of the Hobbs Act is satisfied “where a robbery depletes

the assets of a business that is engaged in interstate commerce.”

Id. at 354-55 (citing United States v. Buffey, 899 F.2d 1402, 1404

(4th Cir. 1990)).


                                    9
     Singleton raises no challenge to the fact that the Lee Mart

was a business engaged in interstate commerce.    Rather, Singleton

argues that the evidence was insufficient to show that the money

taken constituted the assets of the Lee Mart.    He asserts that any

Lee Mart receipts Lee removed from the store constituted his

personal money, not store funds, and that Lee could have used that

money for any purpose.    He equates Lee removing money from the

store to an employee receiving a paycheck, and asserts that all

robberies would come within federal jurisdiction if his conviction

is allowed to stand.

     Singleton is correct to distinguish between the robbery of an

individual’s personal funds and the robbery of the assets of a

business in establishing an effect on commerce.     See Buffey, 899

F.2d at 1406 (Under the Hobbs Act, “[e]xtorting money to be devoted

to personal use from an individual does not affect interstate

commerce.”). However, Singleton’s argument is incongruent with the

facts of this case.

     Sonja Folks, the Lee Mart’s bookkeeper, confirmed at trial

what Singleton and Johnson knew about Lee’s practice of taking the

daily cash receipts to his neighboring trailer.     Folks testified

that Lee would store the proceeds temporarily in his safe and then

deposit most of those funds in the bank to cover store expenses.

With respect to the particular date of the robbery, Folks stated

that several thousand dollars in receipts from the preceding Friday


                                10
and Saturday were not in the store and, consistent with Lee’s

practice, would have been in Lee’s residence awaiting deposit when

the bank reopened after the holiday.

     Thus, the evidence supported a finding that a substantial

portion of the $3,600 to $6,000 netted from the robbery constituted

assets of the Lee Mart, an entity engaged in interstate commerce.

That Lee chose to store these funds in his home temporarily does

not nullify their status as business assets.            Rather, the jury

reasonably could have concluded that much of the money would have

been deposited in the Lee Mart’s bank account to purchase more

goods for the store.   The fact that Lee might have retained some of

the funds for his personal use is of no import.         See United States

v. Bengali, 11 F.3d 1207, 1212 (4th Cir. 1993) (Hobbs Act extortion

offense depleted the assets of a business despite the fact that the

extorted funds came from a bank account used for both business and

personal expenses).     Here, therefore, there was effectively no

difference   between   robbing   Lee    Mart   assets   from   Lee   at   his

residence and robbing such funds from the store. See, e.g., United

States v. Le, 256 F.3d 1229, 1237 (11th Cir. 2001) (affirming Hobbs

Act conviction for attempted robbery of business assets stored in

the proprietors’ residence); United States v. Rodriguez-Casiano,

425 F.3d 12, 15 (1st Cir. 2005) (“That the [business assets were]

located at private residences when stolen does not remove the

robberies from the ambit of the Hobbs Act.”).


                                   11
      Finally, we note that this is not a case where the connection

to a business engaged in interstate commerce was purely fortuitous.

Some courts have limited the reach of the jurisdictional element of

the Hobbs Act where the effect on commerce arising from the robbery

of an individual occurs by happenstance.        See, e.g., United States

v. Wang, 222 F.3d 234, 239-40 (6th Cir. 2000) (reversing Hobbs Act

robbery conviction where individual victim “happen[ed]” to be

carrying proceeds from a restaurant, and noting that its holding

might be different if the defendant “knew of or was motivated by

the   individual   victim’s   connection   to   interstate   commerce”).

However, the concerns of those courts are not implicated here,

where the evidence demonstrated that Singleton and his cohorts

targeted Lee’s residence particularly because of Lee’s relationship

to the Lee Mart, knowing that Lee’s practice was to take the

store’s proceeds home.   See, e.g., United States v. Wilkerson, 361

F.3d 717, 731 (2d Cir. 2004) (“the fact that a robbery takes place

at a residence does not transform the robbery from the robbery of

a business into the random robbery of an individual . . .        so long

as the evidence supports the conclusion that the robbery targeted

the assets of a business”).      Indeed, as originally planned, the

robbery was to have taken place at the Lee Mart.       Thus, the effect

on commerce here arose not by chance, but by design.




                                   12
     For these reasons, we conclude that the jurisdictional element

of the Hobbs Act was supported by the evidence, and we affirm

Singleton’s conviction on Count 1.3



                               III.

     Lastly, we address Singleton’s challenge to his life sentence.

Singleton asserts what we have termed a “statutory Booker error” in

that the court treated the Guidelines as mandatory, rather than

advisory.   See United States v. Rodriguez, 433 F.3d 411, 414 (4th

Cir. 2006) (describing the difference between a Sixth Amendment

Booker error and a statutory Booker error).     Singleton preserved

his claim of a statutory Booker error by raising an objection under

Blakely v. Washington, 542 U.S. 296 (2004), at sentencing.       See

Rodriguez, 433 F.3d at 416 (holding that a Blakely objection

preserves a claim of statutory Booker error).    We therefore review

Singleton’s challenge for harmless error.       Id.   Under harmless

error review, a defendant is entitled to relief if an error has

affected his substantial rights.      Id.; Fed. R. Crim. Pro. 52(a)

(“Any error . . . that does not affect substantial rights must be

disregarded.”). For this inquiry, the Government has the burden to

prove that the district court would not have imposed a lesser



     3
      Singleton also challenged his convictions on Counts 2 and 4
as without jurisdiction absent the predicate Hobbs Act offense. As
we have affirmed Singleton’s Hobbs Act conviction, these challenges
are without merit.

                                13
sentence had it treated the Guidelines as advisory, rather than

mandatory.       See Rodriguez, 433 F.3d at 416.

       In the present case, the district court erred in treating the

Guidelines as mandatory, see United States v. White, 405 F.3d 208,

216-17 (4th Cir. 2005), and the Government has not met its burden

to show that absent this error, the district court’s sentence would

have been the same.         At sentencing, the district court noted for

the record her decision not to announce an alternative sentence

based     upon   18    U.S.C.   §    3553(a),     treating   the   Guidelines    as

advisory. Because the district court declined to consider even the

idea of a § 3553(a) advisory Guidelines sentence, we are left with

no indication as to what that sentence might have been.               Given that

it   is   the    Government’s       burden   to   prove   harmless   error,    “the

sentencing court’s silence must be interpreted in favor of [the

defendant].”          Rodriguez, 433 F.3d at 416.            We therefore must

conclude that Singleton was prejudiced by the statutory Booker

error.

       The fact that the district court declined to grant a departure

from    the   Guidelines    based     upon    Singleton’s    state   of   mind   or

proportionality concerns does not alter this conclusion.                      As we

recently noted, “[t]he permissible factors justifying traditional

departures differ from--and are more limited than--the factors a

court may look to in order to justify a post-Booker variance.”

United States v. Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006).


                                         14
Therefore, the district court’s decision that a departure under the

mandatory Guidelines regime was unwarranted does little to resolve

the question of whether the court would impose the same sentence

upon treating the Guidelines as advisory.         Accordingly, we vacate

Singleton’s sentence and remand for resentencing.



                                      IV.

      For the foregoing reasons, we affirm Singleton’s convictions,

but   vacate   his   sentence   and    remand   for   further   proceedings

consistent with this opinion.



                                                       AFFIRMED IN PART;
                                            VACATED AND REMANDED IN PART




                                      15
