                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 12a0687n.06

                                           No. 11-5491                                     FILED
                           UNITED STATES COURT OF APPEALS                             Jun 28, 2012
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                      )
                                               )
               Plaintiff-Appellee,             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR
 v.                                            )   THE WESTERN DISTRICT OF
                                               )   TENNESSEE
ARTHUR CHANDLER,                               )
                                               )   OPINION
               Defendant-Appellant.            )
                                               )

       Before: MARTIN, GILMAN, and WHITE, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Arthur Chandler was convicted of carjacking,

robbery affecting interstate commerce, and using a firearm in relation to both the carjacking and

robbery offenses. He was sentenced to 552 months of imprisonment.

       Chandler argues on appeal that his convictions should be overturned because the evidence

was insufficient to support the carjacking and robbery charges. If these underlying offenses are

invalidated, he contends that his firearms convictions must be reversed as well. For the reasons set

forth below, we AFFIRM the judgment of the district court.

                                       I. BACKGROUND

A. Factual background

       1. The carjacking
No. 11-5491
United States of America v. Arthur Chandler


       Faith Jeffries pulled up to her Memphis apartment complex in her car around 9:00 p.m. on

November 15, 2009. As she began to step out of the vehicle, two men dressed in black and wearing

face masks—later identified as Rodney Benton, Jr. and Arthur Chandler—approached with guns

drawn and ordered her to “get out, get out [of] the car.” Jeffries testified at trial that she initially

believed that the men were joking, but quickly realized that they were serious. As she followed their

instructions, “one of the guys had a gun to my head, the second guy had the gun to my side.” Jeffries

later confirmed that the guns were “press[ed] up against [her],” but she subsequently stated that one

of the guns was only “pointing . . . towards my, you know, face. And the other one, . . . he had the

gun to my side . . . .” The record contains no information about whether these guns were loaded or

operable.

       After gaining control over Jeffries’s vehicle, the two men discussed whether to put Jeffries

in the trunk or in the back seat, ultimately deciding on the back seat because the trunk was tied shut

due to a malfunctioning latch. Benton got into the driver’s seat and Chandler joined Jeffries in the

back seat, keeping his gun pointed at her. Both men then removed their face masks.

       The trio pulled out of Jeffries’s apartment complex and drove around for about 15 to 20

minutes. During this time, Jeffries saw a couple of police vehicles patrolling and thought about

jumping out of the car. But she decided not to do so in each instance because of Chandler’s gun and

because “they kept telling me everything was going to be all right, we’re not here to hurt you or

nothing like that, we just need the car.” They also offered to leave some money under the driver’s

seat and to return the car to Jeffries’s apartment complex after they finished using it. Shortly


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thereafter, they let her out of the car, allowing her to retrieve her house key as she exited. Jeffries

confirmed that neither man ever laid a hand on her or threatened to cause her physical harm at any

point during her abduction. When Jeffries later spoke to police officers, she identified both Benton

and Chandler from photographic lineups.

       2. The McDonald’s robbery

       Benton and Chandler then drove to a McDonald’s fast-food restaurant in nearby

Germantown, Tennessee. They entered the store around 10:00 p.m. No customers were in the

restaurant at the time, nor were any using the “drive-thru” window. Both Benton and Chandler had

donned their facemasks again. One of the men pulled out his gun, and both men forced several store

employees into the walk-in refrigerator, held manager Linda Goodwin at gunpoint, and told her to

open the restaurant’s safe. Goodwin explained that she did not have the keys to the safe because she

was only a manager-in-training. One of the men (the record does not identify which one) held

Goodwin with her face pressed against the refrigerator. This individual did not have a gun. The

other man retrieved the manager from elsewhere in the restaurant and forced him to open the safe

at gunpoint. Benton and Chandler then took approximately $450 from the safe.

       Goodwin was able to secretly press a silent security alarm attached to her person, thus

alerting the local police to the robbery while she was being restrained by one of the robbers. Officers

from the Germantown Police Department, who were in the process of a shift change, arrived within

minutes from their headquarters, which was only a couple of blocks away from the McDonald’s

restaurant.


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         Officer Michael Rogers arrived on the scene first and saw what was later identified as

Jeffries’s car idling in the parking lot. Benton and Chandler were still inside the restaurant. Officer

Rogers arrested Chandler as he attempted to flee out a side door. Chandler did not have a weapon

on his person. Benton initially hid in the restroom, but was apprehended when he came out a few

minutes later.

         Detective Darrell LaRiviere arrived to process the scene about a half an hour later, after

Benton and Chandler had been arrested and removed from the premises. He saw that the arresting

officers had placed on the floor of the restaurant approximately $450 in cash from the safe and an

unloaded gun “that was broke into two pieces.” None of the officers found any ammunition at the

scene.

         The McDonald’s restaurant in question receives its food products from a distribution center

within Tennessee. Several of these products originate in other states, such as beef from Illinois and

chicken nuggets from Georgia, but all of the out-of-state products are routed through the Tennessee

distribution center.

B. Procedural background

         In December 2009, Benton and Chandler were indicted on four counts: carjacking, in

violation of 18 U.S.C. § 2119 (Count One); using and carrying a firearm during and in relation to

the carjacking, in violation of 18 U.S.C. § 924(c) (Count Two); robbery affecting interstate

commerce, in violation of 18 U.S.C. § 1951 (Count Three); and using and carrying a firearm during

and in relation to the robbery, in violation of 18 U.S.C. § 924(c) (Count Four).


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       The case was set for trial in January 2011. Benton pleaded guilty on the morning of trial and

was eventually sentenced to 300 months of imprisonment. Chandler waived his right to be tried by

a jury, instead proceeding with a bench trial that lasted a single day. At the close of the

government’s case-in-chief, Chandler filed a motion for acquittal pursuant to Rule 29 of the Federal

Rules of Criminal Procedure. The court denied the motion and delivered its verdict the following

day, finding Chandler guilty on all four counts. Chandler was sentenced in April 2011 to a total of

552 months in prison. This timely appeal followed.

                                         II. ANALYSIS

A.     Standard of review

       Claims of insufficient evidence are reviewed in the light most favorable to the government,

United States v. Fekete, 535 F.3d 471, 476 (6th Cir. 2008), and a defendant asserting that the

evidence was insufficient to sustain his conviction “bears a very heavy burden.” Id. (internal

quotation marks omitted). Credibility determinations must be resolved in favor of the verdict, and

circumstantial evidence alone may be sufficient to convict. Id. We must uphold a conviction where

we determine that “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

B.     The carjacking

       A carjacking conviction requires the government to prove that the defendant (1) “with the

intent to cause death or serious bodily harm,” (2) “[took] a motor vehicle,” (3) “that ha[d] been

transported, shipped, or received in interstate commerce,” (4) “from the person or presence of


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another,” (5) “by force and violence or by intimidation.” 18 U.S.C. § 2119. Chandler contests only

the first element of this standard, claiming that he lacked the specific intent to harm Jeffries.

       The Supreme Court has held that the first element may be satisfied by proof that the

defendant possessed a “conditional intent” to cause death or serious bodily injury if such action was

necessary to effectuate the carjacking. Holloway v. United States, 526 U.S. 1, 11-12 (1999). “A

violation of the statute may . . . be established if the United States can show beyond a reasonable

doubt that a defendant had the intent to kill or seriously harm his carjacking victim if the victim

resisted, even if the victim did not in fact resist and no attempts to inflict such harm were made.”

Fekete, 535 F.3d at 477 (internal quotation marks omitted). Although this court has recognized that

the proof needed for the first and fifth elements of the standard may overlap, it has cautioned that

evidence of force or intimidation alone is not sufficient to meet the intent element. Id. at 478.

       In considering the intent element, Fekete instructs us to “look at the totality of the

circumstances to evaluate whether the defendant’s words and actions sufficiently demonstrated a

conditional intent to cause death or serious bodily harm.” Id. at 481 (affirming Fekete’s carjacking

conviction after determining that Fekete possessed the specific intent to harm because circumstantial

evidence indicated that the gun was loaded, and Fekete pointed a gun at the victim, threatened the

victim, and presumably was aware that the car was occupied when he commandeered it). The scope

of the circumstances that this court may consider remains unsettled. Some circuits, including this

one, have held that the determination of the defendant’s intent is limited to the specific moment in

which he or she takes the vehicle. See United States v. Guthrie, 557 F.3d 243, 251-52 (6th Cir.


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2009); United States v. Matos-Quinones, 456 F.3d 14, 19 (1st Cir. 2006) (collecting cases). This

interpretation arises out of language found in Holloway, in which the Supreme Court stated that

“[t]he intent requirement of § 2119 is satisfied when the Government proves that at the moment the

defendant demanded or took control over the driver’s automobile the defendant possessed the

[requisite] intent . . . .” 526 U.S. at 12 (emphasis added).

        But this court has found no difficulty in ascertaining such intent by considering evidence

about the gun used in the robbery that was not obtained until after the carjacking took place.

Specifically, this court has considered the fact that a carjacking defendant fired his gun at a later time

on the day in question as proof that the gun was loaded and thus constituted an actual threat at the

time of the carjacking. See United States v. Adams, 265 F.3d 420, 425 (6th Cir. 2001) (considering

evidence that the defendant later fired shots at a police officer as evidence that the gun was loaded

during the carjacking earlier that day).

        Chandler asks us to consider an analogous circumstance favorable to him that occurred after

the specific moment of the carjacking: his reassurances to Jeffries that he would not harm her. But

even taking into account Chandler’s reassurances, the government presented sufficient evidence to

support Chandler’s carjacking conviction.

        We reach this conclusion in part because this circuit has previously stated that “physically

touching a victim with a weapon, standing alone, is sufficient to justify a finding that the victim faces

an imminent threat of physical harm, and indicates an intent on the part of the defendant to act

violently.” Id. This is true whether or not the government offers proof that the gun was loaded and


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operable. Fekete, 535 F.3d at 479. To be sure, one can question whether there is any real distinction

between physically touching a victim with a weapon and pointing the weapon at the victim from

close range. We do not, however, have the authority to overrule this circuit’s precedent on the point.

See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (noting that “[a]

panel of this Court cannot overrule the decision of another panel . . . unless an inconsistent decision

of the United States Supreme Court requires modification of the decision or this Court sitting en

banc overrules the prior decision”); see also Sixth Cir. R. 206(c) (“Reported panel opinions are

binding on subsequent panels. . . . Court en banc consideration is required to overrule a published

opinion of the court.”).

       Moreover, Chandler did more than press his gun against Jeffries’s side. He considered

forcing her into the trunk of the car (itself having the potential to cause serious bodily harm) and

ultimately directed her into the back seat at gunpoint, keeping his gun trained on her while his co-

assailant drove around. Chandler further informed Jeffries that he and Benton “needed” the car.

Such an alleged need suggests a willingness to harm the victim if necessary to procure the vehicle.

Viewing all of this evidence in the light most favorable to the government, we conclude that the

government has met the threshold for proving intent to harm.

       But Chandler seizes upon language in Fekete to argue that, despite the above facts, there is

insufficient evidence to support his conviction. Fekete commented that “[p]rior caselaw addressing

the intent requirement . . . provides limited guidance as to whether a defendant can be convicted

under the statute absent proof beyond a reasonable doubt that the firearm was loaded.” 535 F.3d at


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477. The evidentiary ambiguity noted in Fekete stems from Holloway, in which the Supreme Court

asserted that an “empty threat” by the defendant would not be sufficient to satisfy the intent element

of the carjacking statute. Holloway, 526 U.S. at 11. But the Supreme Court in Holloway did not

explain what constituted such an empty threat, nor whether an unloaded gun was sufficient in and

of itself to fall within this category. Fekete, 535 F.3d at 478. Chandler argues that the above

quotation from Fekete indicates that his conviction may not be sound because the government failed

to present evidence at trial that the gun was loaded and operable. Instead, the only evidence

regarding the condition of the sole gun recovered at the McDonald’s restaurant demonstrated that

it was unloaded and inoperable. (The other gun used in the carjacking was never recovered.)

       In Fekete, the defendant raised a similar issue to the one now being considered. He asked

the panel to hold that, absent evidence of a physical touching by the gun, the government must prove

that the firearm was loaded in order to establish “the intent to cause death or serious bodily harm.”

See 18 U.S.C.§ 2119. The panel in Fekete refused to reach this conclusion, leaving open the

possibility that a defendant could possess the requisite intent even though the government did not

furnish any such evidence. Id. at 480. But the Fekete panel cautioned that, “[a]bsent some

additional evidence of bad intent, . . . evidence that a defendant brandished a firearm during a

carjacking is insufficient on its own to establish a specific intent to kill or cause serious bodily

harm.” Id.; see also United States v. Malone, 222 F.3d 1286, 1291 (10th Cir. 2000) (suggesting that

“if a defendant ordered a carjacking victim to do as he was told or he would be shot, while carrying

an unloaded weapon, the intimidation element would be satisfied although the intent element might


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not”); United States v. Jones, 188 F.3d 773, 777 (7th Cir. 1999) (same). Chandler now asks this

court to define what it meant by this “brandishing-plus” requirement.

       As in Fekete, however, we need not reach this issue because the district court found that the

evidence presented at trial demonstrated that Chandler did in fact touch Jeffries with his gun, which

removes this case from the category of the simple-brandishing cases mentioned in Fekete. The

district court based this factual finding on Jeffries’s testimony that one gun was pressed against her

head and the other against her side as the defendants ordered her out of the car.

       Chandler argues that the district court’s finding was erroneous because Jeffries later stated

that the guns were simply pointed at her. But this is an overly broad reading of the record. Jeffries

at most gave conflicting testimony as to whether the guns touched her or were only pointed towards

her. Because we must construe all credibility determinations and inferences in favor of the

government as the prevailing party below, Fekete, 535 F.3d at 476, this ambiguity is not enough to

undermine Jeffries’s testimony that the guns were physically pressed up against her. Moreover, we

review factual findings by the district court under the clear-error standard, which permits reversal

only where “the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.” See United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010)

(internal quotation marks omitted). We are far from convinced that any such mistake occurred here.

       Chandler, however, argues that this case should be described as one of “touching-minus”

because of Chandler’s subsequent reassurances to Jeffries. If this case truly presented a situation of

“touching-minus,” as characterized by Chandler, it would be a closer call. But the present case


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includes evidence that Chandler both touched Jeffries with his gun and issued directives to her at

gunpoint. The latter circumstance prevents this case from falling within the “touching-minus”

category. We therefore conclude that the government presented sufficient evidence to prove

Chandler’s specific intent to cause serious bodily harm and thus to support his Count One carjacking

conviction.

       Because Chandler’s carjacking conviction remains a valid underlying offense on which to

base his firearm conviction, his challenge to the latter charge also fails. We therefore affirm

Chandler’s conviction under Count Two for using and carrying a firearm during and in relation to

the carjacking offense.

C.     Robbery affecting interstate commerce

       Chandler’s other sufficiency-of-the-evidence challenge is to his robbery conviction, which

arose under 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

or extortion . . . shall be fined . . . or imprisoned . . . .” 18 U.S.C. § 1951(a). “Commerce,” for

purposes of the Hobbs Act, refers to the federal government’s Commerce Clause power and

“includes all . . . commerce over which the United States has jurisdiction.” United States v. Watkins,

509 F.3d 277, 280 (6th Cir. 2007) (internal quotation marks omitted).

       Where the robbery at issue affects a business entity, this circuit has consistently held that the

government need demonstrate only a de minimis connection with interstate commerce to support a

conviction under the Hobbs Act. Id. at 280-81; see also United States v. Baylor, 517 F.3d 899, 902


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(6th Cir. 2008) (rejecting a challenge to the constitutionality of the de minimis standard following

United States v. Morrison, 529 U.S. 598 (2000)); United States v. Davis, 473 F.3d 680, 681-83 (6th

Cir. 2007) (rejecting the defendant’s argument that the Hobbs Act requires a substantial-effect test

where the robbery involves a business entity).

       The de minimis standard is based on the rationale that the Hobbs Act regulates activities that,

when aggregated, have a substantial effect on interstate commerce. Davis, 473 F.3d at 683. “Proof

of a de minimis effect on interstate commerce, then, does not require the government to prove that

a Hobbs Act robbery had an actual effect on interstate commerce, but only that there was a ‘realistic

probability’ of such an effect.” Watkins, 509 F.3d at 281 (citations omitted). This language has been

construed to include even attempted robberies where the defendant did not in fact succeed in

removing proceeds from the business establishment. United States v. Brown, 959 F.2d 63, 64-65,

67-68 (6th Cir. 1992) (involving the attempted robbery of a bar that was thwarted by a bar employee

before the defendant reached the cash register).

       The de minimis standard has also been deemed satisfied where the victimized business

purchases or receives its products from an in-state distributor that in turn receives items from out of

state. See, e.g., Davis, 473 F.3d at 683-84 (interpreting Brown as holding that “[t]he de minimis

standard was satisfied because the bar purchased some of its beer from an in-state distributor, which,

in turn, purchased all of its beer from out-of-state manufacturers”); Brown, 959 F.2d at 68 (“[T]his

fact [(the use of an in-state distributor)] does not so lessen the effect of these transactions on

interstate commerce as to place them beyond the reach of the Hobbs Act. . . . Any fluctuation in the


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amount purchased by these [] businesses in turn affected the amount of these items purchased in

interstate commerce.” (brackets and internal quotation marks omitted)).

        The government may meet the de minimis standard even where the robbery involves only a

small amount of cash, see Baylor, 517 F.3d at 900 (involving the robbery of a Little Caesar’s pizza

restaurant in which the defendant stole $538), or is a thwarted attempt where the business loses no

money at all, see Brown, 959 F.2d at 68. Testimony that the restaurant received some of its products

from out of state “alone is sufficient to satisfy the de minimis standard,” even without evidence that

the robbery caused the store to close or lose business. See, e.g., Baylor, 517 F.3d at 903.

        Chandler—as have several defendants before him—argues that the proper standard should

be that the robbery had a “substantial effect,” rather than a de minimis effect, on interstate commerce.

But he relies primarily on a dissent from another circuit to support his argument. See United States

v. McFarland, 311 F.3d 376, 377-410 (5th Cir. 2002) (Garwood, J., dissenting). Judge Garwood’s

dissent, however, is simply an insufficient basis for us to overrule a long line of precedent in this

circuit. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Moreover,

Chandler’s counsel was forthright at oral argument in conceding that he was raising this Commerce

Clause argument simply to preserve it for possible review by the Supreme Court.

        Chandler’s final Hobbs Act challenges raise evidentiary issues that occurred during his bench

trial. We conclude, however, that any alleged errors were harmless because the government

presented sufficient food-distribution evidence to support Chandler’s Count Three conviction under

the Hobbs Act.


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       Finally, because we affirm Chandler’s robbery conviction, his challenge to the related firearm

conviction also fails. We therefore affirm Chandler’s Count Four conviction for using and carrying

a firearm during and in relation to the robbery.

                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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