Case: 22-10803 Document: 00517000225 Page: 1 Date Filed: 12/13/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-10803
FILED
December 13, 2023
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Brian Jackson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-38-2
______________________________
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
After attempting to rob a convenience store with two accomplices,
Appellant Brian Jackson pled guilty of attempted interference with
commerce by robbery in violation 18 U.S.C. § 1951(a). He now challenges the
district court’s finding that sufficient evidence supported his plea, arguing
the record fails to show the attempted robbery impacted interstate
commerce. Finding no reversible error, we AFFIRM.
Case: 22-10803 Document: 00517000225 Page: 2 Date Filed: 12/13/2023
No. 22-10803
I.
Jackson agreed to the following stipulated facts. On or about October
12, 2021, he and two co-conspirators attempted to rob the Welcome Food
Store in Fort Worth, Texas. Co-conspirator Leonard Lindsey Douglas,
driving a 2013 Ford Taurus, pulled into the drive-thru window and asked for
items that required the employee to leave the secure area behind the counter.
Once the employee left the secure area, Jackson and co-conspirator James
Earl Lemons entered the store. They dragged the employee to the back of the
store toward the cash register, striking him twice in the head or neck area.
Before they completed the robbery, however, they suddenly fled in a 2009
white Chevy Impala. The Taurus also fled the scene.
The Fort Worth Police Department had been surveilling the subjects
that night and on prior occasions because they were suspects in several
robberies in the area. After the attempted robbery, officers stopped the
Taurus and arrested Lindsey for aggravated robbery. While pursuing Jackson
in the Impala, officers observed someone toss an AR-15 style rifle out of the
driver’s side window, which they collected as evidence. As the pursuit
continued, Jackson, the driver, bailed from the still-moving vehicle and fled
on foot. He was quickly arrested.
The police investigation of this incident caused the Welcome Food
Store to shut down for about three hours. As a result, the store claimed (and
Jackson does not contest) a loss of $600.00 in missed earnings.
In his plea agreement, Jackson agreed that he “committed all the
essential elements of the offense.” Specifically, he agreed he “unlawfully
attempt[ed] to obstruct, delay, and affect commerce, as that term is defined
in 18 U.S.C. § 1951, and the movement of articles and commodities in such
commerce, by robbery, as that term is defined in
18 U.S.C. § 1951.” He also
admitted he sought to “obtain personal property, consisting of U.S. currency
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from the person and in the presence of an employee of Welcome Food Store
. . . against his/her will by means of actual and threatened force, violence, fear
of immediate injury to her person.” He further agreed that this factual
resume was “not intended to be a complete accounting of all the facts and
events related to the offense charged in this case.”
In exchange for his plea, the Government (1) dismissed a second
charge for which Jackson had been indicted (interference with commerce by
robbery in violation of 18 U.S.C. § 1951(a)) and (2) agreed not to bring any
additional charges based on the conduct underlying his plea. Before his
sentencing hearing, Jackson moved to withdraw his plea, arguing he pled
guilty only to avoid multiple
18 U.S.C. § 924(c) charges and that “there is at
least one element of the offense that the Government would not be able to
prove.” He quickly withdrew the motion, however, stating that “he got a
little spooked as his sentencing was getting close, but he wishe[d] to go
forward with his guilty plea.”
The district court found Jackson’s plea was supported by sufficient
evidence. Varying upwards, the court imposed a 120-month prison sentence
due to Jackson’s prior commission of “another robbery, even while wearing
an electronic monitor for supervision.” The court subsequently overruled
Jackson’s objection to the sentence as unreasonable. This appeal followed.
II.
Jackson concedes he failed to preserve claims regarding the
sufficiency of the factual basis for his plea. We therefore review for plain
error. United States v. Cooper, 979 F.3d 1084, 1090 (5th Cir. 2020).
Accordingly, Jackson must show “a forfeited error that is clear or obvious
and that affects his substantial rights.”
Ibid. (citations omitted). If he meets
this bar, “we may, in our discretion, correct the error if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.”
Ibid.
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“An error is plain, in this context, if it is ‘clear or obvious’ what the
government must prove to establish the offense, and, notwithstanding that
clarity, the district court accepts a defendant’s guilty plea without an
adequate factual basis.” United State v. Alvarado-Casas, 715 F.3d 945, 951
(5th Cir. 2013) (citation omitted). A district court’s acceptance of a guilty
plea “is not clearly erroneous as long as it is plausible in light of the record as
a whole.” United States v. Hildebrand,
527 F.3d 466, 475 (5th Cir. 2008)
(citation omitted).
In determining factual sufficiency, we consider all facts available to the
district court and any reasonable inferences drawn from those facts, including
“the indictment itself, evidence available at the plea hearing, evidence
‘adduced after the acceptance of a guilty plea but before or at sentencing,’
the pre-sentencing report, et cetera.” Cooper, 979 F.3d at 1090 (quoting
Hildebrand, 527 F.3d at 475); see also United States v. Barton,
879 F.3d 595,
599 (5th Cir. 2018).
III.
The Hobbs Act penalizes “[w]hoever in any way or degree obstructs,
delays, or affects commerce or the movement of any article or commodity in
commerce, by robbery” as well as anyone who “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.”
18 U.S.C. § 1951(a). Accordingly, a violation requires (1) robbery, extortion,
or an attempt or conspiracy to rob or extort (2) that affects interstate
commerce. United State v. Robinson,
119 F.3d 1205, 1212 (5th Cir. 1997).
To trigger the Hobbs Act, a business’s activities need have only a
slight effect on interstate commerce. For example, a business might merely
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purchase or use out-of-state goods or services. 1 Similarly, a crime’s impact
on interstate commerce need only be minimal. United States v. Avalos-Sanchez, 975 F.3d 436, 440–41 (5th Cir. 2020) (citing Taylor v. United States,
579 U.S. 301, 309 (2016)); Robinson,
119 F.3d at 1212. To determine a crime’s
impact on interstate commerce, we look to whether “the cumulative effect
of all similar instances . . . is substantial.” Robinson,
119 F.3d at 1214. The
crime qualifies under the Hobbs Act when it merely “depletes the assets of a
commercial enterprise, impairing or delaying its ability to buy goods or
services in interstate commerce.” Robinson,
119 F.3d at 1212.
With this background in mind, we turn to Jackson’s contentions.
A.
Jackson argues that a “defendant’s unadorned and conclusory
recitation that he committed the legal elements of the offense will not suffice
to sustain his conviction.” See United States v. Jones, 969 F.3d 192, 196 (5th
Cir. 2020). His guilty plea, he claims, contains only such conclusory
recitations and no facts to support the interstate commerce prong under the
Hobbs Act. We disagree.
Jackson’s plea agreement went beyond merely agreeing that he
“committed all the essential elements of the offense.” Jackson admitted in
the factual resume that he attempted to rob the Welcome Food Store and to
obstruct commerce (as defined in 18 U.S.C. § 1951), including the movement
_____________________
1
See Stirone v. United States, 361 U.S. 212, 215 (1960) (finding sufficient a concrete
business’s use of out-of-state shipments of sand); United States v. Chiantese,
582 F.2d 974,
980 n.16 (5th Cir. 1978) (finding sufficient a parking lot operator’s out-of-state purchase of
employee apparel, gas purchases with credit cards issued by out-of-state companies,
purchase of out-of-state insurance, and regular parking of out-of-state automobiles); United
States v. Sander,
615 F.2d 215, 218 (5th Cir. 1980) (finding sufficient “an on-going
business” that had engaged in interstate commerce in the past, and that “it is realistic to
assume . . . would continue to conduct business on an interstate basis” in the future).
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of articles and commodities, by taking U.S. currency. He also agreed the
resume was “not intended to be a complete accounting of all the facts and
events related to the offense charged in this case.” We have previously found
such factual admissions sufficient to satisfy the Hobbs Act’s commerce
element. See, e.g., Avalos-Sanchez, 975 F.3d at 441 (holding a defendant’s
“admissions at re-arraignment, standing alone, support his conviction under
the Hobbs Act”); United States v. Clark,
818 F. App’x 326, 329 (5th Cir.
2020) (holding that a stipulation that defendant affected interstate commerce
was sufficient to meet the commerce element).
Because Jackson undisputedly attempted to rob the Welcome Food
Store with the intent to affect interstate commerce, the Government has
established the necessary facts underlying his Hobbs Act plea. See Avalos-Sanchez, 975 F.3d at 441–42 (“When robberies were committed with the
express intent to [commit the crime] this is sufficient to meet the commerce
element of the Hobbs Act.”) (internal quotation marks omitted)).
B.
Even if Jackson’s admissions, standing alone, were insufficient, his
causing the temporary closure of the Welcome Food Store meets the
commerce element because it reduced the store’s assets by $600, thus
impeding its ability to engage in future interstate commerce.
Jackson argues the Government alleged no fact that “suggests any
impact on interstate commerce” because nothing indicates that the store
“operated in multiple states, engaged in interstate transactions, served out-of-state customers or sold goods from out of state.” We disagree.
We have repeatedly found that robberies that cause “the interruption
of commerce” involving out-of-state goods affect interstate commerce for
purposes of the Hobbs Act. United States v. Davis, 30 F.3d 613, 615 (5th Cir.
1994) (robberies causing temporary closure of gas stations dealing in out-of-
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state goods affected interstate commerce); United States v. Martinez, 28 F.3d
444, 445 (5th Cir. 1994) (same); United States v. Richard,
9 F.3d 102, 102 (5th
Cir. 1993) (robbery causing temporary closure and purchase of new cash
register manufactured overseas affected interstate commerce). Such
temporary closures “deplete the assets of an entity engaged in interstate
commerce,” which satisfies the commerce prong. Collins, 40 F.3d at 99–100.
Jackson admitted that the Welcome Food Store was shut down for
three hours due to his attempted robbery and that it lost $600 in potential
earnings while closed. 2 Jackson’s acts therefore “impair[ed] [the store’s]
ability to buy goods or services in interstate commerce.” Robinson, 119 F.3d
at 1212 (citations omitted). In the aggregate, attempted robberies of this
nature would substantially affect interstate commerce by causing businesses
to close during operating hours, reducing their profits, and reducing their
ability to purchase goods. Given the interconnected nature of the United
States economy, we can draw the “fair inference” from the record evidence
that the Welcome Food Store dealt (at least in part) in goods grown,
manufactured, packaged, or shipped from somewhere outside of Texas. See
United States v. Hyde,
448 F.2d 815, 834 (5th Cir. 1971) (relying on fair
inferences from the record in a Hobbs Act extortion case); United States v.
Bird,
124 F.3d 667, 681 (5th Cir. 1997) (relying on fair inferences to find that
interference with local activities affects the national market).
As the Government points out, it is common sense that “many of the
foods, beverages, and products” in a convenience store “engaged with
interstate commerce at one point or another.” Jackson provides no evidence
suggesting that the Welcome Food Store dealt exclusively in Texas-only
_____________________
2
Jackson argues that he committed crimes only against the store employee and,
therefore, there was no effect on interstate commerce. We disagree. Jackson admitted to
attempting to rob the store itself by dragging the employee towards the cash register.
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goods, and it is his burden to show that the district court’s assumption that
the Welcome Food Store dealt in at least some out-of-state goods was plain
error. United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006);
Clark, 818 F. App’x at 329 (finding defendant failed to demonstrate factual
insufficiency because he “point[ed] to no evidence that his crime lacked a
‘minimal effect on interstate commerce’”).
Accordingly, Jackson fails to show any error, plain or otherwise. See
United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012).
C.
Finally, even assuming the record lacked sufficient evidence of an
effect on interstate commerce, Jackson would still have to show this error
affected his substantial rights. See Castro-Trevino, 464 F.3d at 541. He cannot.
Jackson argues that, had he known the facts were insufficient under
the commerce element, he would not have pled guilty. This argument is
belied by Jackson’s own pleadings. In his motion to withdraw his guilty plea,
he argued that his actions “did not affect interstate commerce” and that
“there is at least one element of the offense that the Government would not
be able to prove.” But Jackson then withdrew this motion and stood by his
guilty plea. The record thus shows that, despite believing that the facts were
insufficient to support the commerce prong, he nonetheless pled guilty.
Jackson also admitted that his purpose in pleading guilty of the Hobbs
Act violation was to avoid the Government’s pursuing a potential conviction
under 18 U.S.C. § 924(c), which carries longer sentences. So, even if we
ignore the fact that Jackson pled guilty with full knowledge of the alleged
factual insufficiencies, it is highly unlikely that he would have risked the
harsher § 924(c) charges. Jackson thus fails to demonstrate that any potential
error affected his substantial rights.
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AFFIRMED.
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