Hobbs Act Robbery – Under de novo review, there is sufficient evidence to support a Hobbs Act robbery when the robbery affects interstate commerce and there need not be a commercial relationship between the defendant and the victim.
Sentencing/Section 924(c) – Section 403 of the First Step Act, which reduces the mandatory minimum for convictions under 18 U.S.C. § 924(c), does not apply retroactively to cases pending on direct appeal when the First Step Act was enacted.
Evidence/Rule 403 – The district court did not abuse its discretion concluding a violent video’s probative value was not substantially outweighed by the potential for unfair prejudice.
DeAndre Smith raised seven challenges to his convictions and total 92-year sentence for three armed robberies and one carjacking. The Court rejected each challenge.
First, Smith challenged evidentiary rulings permitting eyewitness identification and admission of a violent music video he made. The Court affirmed the photo array was not unduly suggestive as the black and white photos included men with similar facial features, dreadlocks, and similar backgrounds. The Court also held the district court did not abuse its discretion in admitting the music video under Rule 403. While there was potential for prejudice due to the explicit, violent nature of the lyrics and images glorifying violence, it had significant probative value identifying Smith and whether he brandished a gun during the robberies. It further corroborated the victim’s testimony that the gun Smith used to strike her was like the pistol in the video.
Smith next challenged his convictions for Hobbs Act Robbery on grounds that the district court abused its discretion denying Smith’s jury instruction on interstate commerce. The Court rejected the defendant’s arguments because the instructions were not substantively correct and suggested that only three factors applied to robberies of individuals under Hobbs Act Robbery when it is actually a fact-specific inquiry where other circumstances may be sufficient to prove guilt.
The Court also reviewed de novo Smith’s challenge to the sufficiency of evidence for Hobbs Act Robbery. Smith argued there was not sufficient evidence to conclude the robbery affected interstate commerce. The Court rejected this argument since Hobbs Act language requires only an “effect” on interstate commerce and it need not be substantial. Smith robbed the victim of items she used in her business including a thumb drive with software and cell phone. The Court also affirmed the victim and criminal need not have a commercial relationship to satisfy the Hobbs Act requirement for effect on interstate commerce.
Smith challenged his sentences under the First Step Act, which was signed into law on December 21, 2018. Section 403 amended § 924(c) so that only prior 924(c) convictions that were “final” could trigger the mandatory minimum consecutive sentencing provisions. The language of the amendment, however, excluded sentences that had been “imposed” as of enactment. The Court rejected Smith’s argument holding the First Step Act did not apply to cases pending on appeal since a sentence is imposed when the district court enters final judgement. The Court further held the Rule of Lenity did not apply since there was no ambiguity in statutory direction.
Finally, the Court reviewed the defendant’s argument for an 8th Amendment and substantive unreasonableness challenge of the sentences. Under de novo review, the Court rejected the sentence was disproportionate in light of the crime and severe injury to the victim who lost her eye when Smith hit her with the pistol. Further, the sentences were each below the statutory maximum, including the 7 and 25 years under 924(c), which allows sentences of up to life in prison. The Court also held the district court did not abuse is discretion by applying § 924 as the statute required and its consideration of the § 3553(a) factors, including hearing from the victim, the defendant’s mother, and considering defendant’s background, including the death of his brother ten years earlier. Although lengthy, the sentence was not unreasonable.
Appeal from the Southern District of Florida
Opinion by Carnes, joined by Luck and Marcus
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