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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11571
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20617-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MUFASA WILSON SEJOUR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 10, 2018)
Before WILLIAM PRYOR, BRANCH and BLACK, Circuit Judges.
PER CURIAM:
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Mufasa Wilson Sejour appeals his convictions for robbery under the Hobbs
Act and brandishing a firearm in furtherance of a crime of violence. He contends
his robbery conviction is unconstitutional because the evidence was insufficient to
show the robbery had a significant effect on interstate commerce. In addition, he
contends the evidence was insufficient to show he brandished a firearm in
furtherance of the robbery, because the government did not prove the shotgun he
used was a firearm for purposes of the statute. After review,1 we affirm.
I. DISCUSSION
A. Interstate Commerce
Sejour first contends his robbery did not have a large enough effect on
interstate commerce to support federal jurisdiction under the Hobbs Act and the
Commerce Clause. Under the Hobbs Act, “[w]hoever in any way or degree
obstructs, delays, or affects commerce or the movement of any article or
1
We typically review challenges to the sufficiency of the evidence de novo,
“consider[ing] the evidence in the light most favorable to the Government, drawing all
reasonable inferences and credibility choices in the Government’s favor.” United States v.
Friske,
640 F.3d 1288, 1290–91 (11th Cir. 2011). We cannot overturn a jury’s verdict “if any
reasonable construction of the evidence would have allowed the jury to find the defendant guilty
beyond a reasonable doubt.”
Id. at 1291. Our review is even more deferential where, as here,
the defendant did not seek a judgment of acquittal on the specific grounds advanced on appeal.
In such cases, we review only for plain error. See United States v. Leon,
841 F.3d 1187, 1196
(11th Cir. 2016); United States v. Joseph,
709 F.3d 1082, 1103 (11th Cir. 2013). Likewise, we
review only for plain error an as-applied challenge to a criminal statute raised for the first time
on appeal. See United States v. Smith,
459 F.3d 1276, 1282–83 (11th Cir. 2006). For an error to
be plain in this context, there must be a binding statute, rule, or precedential decision directly
resolving the issue. United States v. Chau,
426 F.3d 1318, 1322 (11th Cir. 2005).
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commodity in commerce, by robbery [is liable].”
18 U.S.C. § 1951(a) (emphasis
added). This language “indicates Congress’s intent to invoke its full authority
under the Commerce Clause.” United States v. Gray,
260 F.3d 1267, 1275 (11th
Cir. 2001). We have repeatedly held that, consistent with broad federal authority
to regulate commerce, the Government need only “establish a minimal effect on
interstate commerce to support a violation of the Hobbs Act.” United States v.
Rodriguez,
218 F.3d 1243, 1244 (11th Cir. 2000); see also United States v. Dean,
517 F.3d 1224, 1228 (11th Cir. 2008) (“[T]he government is only required to
establish a minimal effect on interstate commerce.” (quotation omitted)); Gray,
260 F.3d at 1276 (“[I]t is of no moment to the analysis whether the effect is
characterized as ‘direct’ or indirect’—if the defendant’s conduct had a minimal
effect on commerce, nothing more is required.”).
We also have held that depleting the assets of a business engaged in
interstate commerce, even if only by a few hundred dollars, is sufficient to satisfy
the jurisdictional requirement. See United States v. Guerra,
164 F.3d 1358, 1361
(11th Cir. 1999) (stating that the defendant’s taking $300 from a service station
was sufficient to invoke federal jurisdiction and citing the $170 taken in a previous
case in which we also found jurisdiction); see also Rodriguez,
218 F.3d at 1244
(“[A] mere depletion of assets of a business engaged in interstate commerce will
meet the requirement.”).
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Here, the jury was presented with evidence that Sejour took $200 from the
gas station, that the gas station sold products originating from outside Florida, that
the gas station accepted credit cards used in interstate commerce, and that the gas
station turned away several customers while it was closed for about an hour
because of the robbery. Based on that evidence, a jury could infer beyond a
reasonable doubt that Sejour’s conduct had at least a minimal effect on interstate
commerce. At the very least, it was not plain error for the jury to so conclude.
And without binding precedent directly resolving the constitutional question in
Sejour’s favor, applying the Hobbs Act to his conduct could not have been plain
error. See United States v. Chau,
426 F.3d 1318, 1322 (11th Cir. 2005).
B. Brandishing a Firearm
Sejour next contends there was insufficient evidence for the jury to conclude
the shotgun he used during the robbery was actually a firearm. 2 Specifically,
Sejour asserts: (1) there were no shots fired; (2) no fact witnesses testified Sejour
used “an actual firearm”; and (3) no expert witnesses testified that Sejour’s
shotgun was “designed to or readily convertible to expel a projectile by the action
2
Sejour also contends his conviction for brandishing a firearm in furtherance of a crime
of violence should be overturned because his conviction for the predicate crime of violence
(robbery under the Hobbs Act) was unlawful. Because we reject the challenge to his conviction
under the Hobbs Act, his derivative challenge to the conviction for brandishing a firearm
necessarily fails.
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of an explosive.” Br. of Appellant at 22 (quoting United States v. Adams,
137 F.3d
1298, 1300 n.2 (11th Cir. 1998)). This argument has no merit.
In Adams, the case cited by Sejour, we found the evidence was sufficient
where the firearm at issue was in evidence, and a lay witness testified it was a
“Winchester blue 12 gauge shotgun.”
137 F.3d at 1300 n.2. Here, two witnesses
testified Sejour was carrying a shotgun when he entered the gas station.
Surveillance video showed Sejour racking the shotgun, which expelled a 20-guage
shotgun shell, before pointing it at the gas-station attendant. The shotgun found in
Sejour’s vehicle, loaded with four 20-guage shotgun shells, was admitted into
evidence. And a police detective who was familiar with shotguns explained how
Sejour’s shotgun operated and identified it as a Mossberg 500C. This evidence
was sufficient to prove beyond a reasonable doubt that Sejour brandished a firearm
in furtherance of the robbery.
II. CONCLUSION
Applying the Hobbs Act to Sejour’s robbery was not plain error, and the
evidence was sufficient for the jury to conclude the robbery had at least a minimal
effect on interstate commerce. The evidence also was sufficient to conclude Sejour
brandished a firearm in furtherance of the robbery.
AFFIRMED.
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