United States v. Waddell ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD ARNOLD WADDELL, a/k/a Chippy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:09-cr-00435-LO-1)
Submitted: January 24, 2011 Decided: February 24, 2011
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chong C. Park, CLARK & ALLEN, PC, Leesburg, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Manasi
Venkatesh, Special Assistant United States Attorney, Michael E.
Rich, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Waddell appeals his conviction of Hobbs Act
conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(2006); Hobbs Act armed robbery, in violation of 18 U.S.C.
§ 1951; using, carrying, and brandishing a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(2006); and possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1) (2006). On appeal, Waddell petitioned for
an initial en banc hearing in order that we may overrule our
past precedent and conclude that “the existing application of
the ‘minimal effect’ standard” of determining an interstate
commerce nexus in Hobbs Act cases violates the Commerce Clause.
If we do so, Waddell contends that we should reverse his
convictions of Hobbs Act robbery and conspiracy, because the
evidence was insufficient to demonstrate that the robbery
affected interstate commerce.
Pursuant to Fed. R. App. P. 35, a majority of active
circuit judges may order an appeal to be heard en banc. En banc
consideration of appeals is disfavored, and therefore generally
will not be ordered unless “(1) en banc consideration is
necessary to secure or maintain uniformity of the court’s
decisions; or (2) the proceeding involves a question of
exceptional importance.” In his petition, Waddell argues that
his appeal “involves a question of exceptional importance
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because prior decisions of the Fourth Circuit applying the de
minimis standard on this issue effectively grant[] the federal
government jurisdiction to prosecute virtually all local
robberies of retail and restaurant establishments traditionally
enforced by [s]tate authorities.” Waddell asserts that “[s]uch
a broad application is not what was intended by the enactment of
the Hobbs Act or the Commerce Clause.” Waddell insists that
this court should reconsider its precedent in light of United
States v. Lopez, 514 U.S. 549 (1995).
As Waddell acknowledges, we have long held that
application of the Hobbs Act requires only a minimal effect on
interstate commerce. See United States v. Williams, 342 F.3d
350, 354 (4th Cir. 2003) (“Congress exercised the full extent of
authority in the Hobbs Act, which ‘speaks in broad language,
manifesting a purpose to use all the constitutional power
Congress has to punish interference with interstate commerce by
extortion, robbery, or physical violence. The Act outlaws such
interference in any way or degree.’”)(quoting Stirone v. United
States, 361 U.S. 212, 215 (1960)); United States v. Spagnolo,
546 F.2d 1117, 1119 (4th Cir. 1976) (“[A]ll that is required to
bring an extortion within the statute is proof of a reasonably
probable effect on commerce, however[] minimal, as a result of
the extortion.”).
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We also distinguished the Supreme Court’s decisions in
Lopez and United States v. Morrison, 529 U.S. 598 (2000), from
the Hobbs Act robbery at issue in Williams. Williams, 342 F.3d
at 354. Unlike the firearms statute at issue in Lopez, “the
Hobbs Act contains a jurisdictional requirement that the
particular offense be connected to interstate commerce.” Id.(internal quotation marks and citation omitted). Likewise,
unlike the civil remedy provisions of the Violence Against Women
Act struck down in Morrison, the subject matter regulated by the
Hobbs Act “impacts a trade that plainly is both economic and
interstate in character.” Id. Accordingly, we determined that
the Hobbs Act was unaffected by Lopez, and remained a proper
exercise of Federal power under the commerce clause. Id.Though Waddell disagrees with these conclusions, he
fails to cite any decisions lending credence to his belief that
Williams should be overruled. Moreover, every one of our sister
circuits has found, after Lopez, that a Hobbs Act conviction may
be sustained even if the crime in question has only a small
effect on interstate commerce. Waddell fails to offer any
compelling reason to overrule existing precedent and place
ourselves at odds with every other circuit. As no judge of this
court has called for a vote on whether an en banc hearing should
be permitted, we deny Waddell’s motion for initial en banc
consideration of his appeal. See Fed. R. App. P. 35(f).
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Waddell concedes in his brief that, under Williams,
the evidence is sufficient to support his convictions of Hobbs
Act robbery and conspiracy. We agree. Accordingly, we affirm
the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the material before the court and argument would
not aid the decisional process.
AFFIRMED
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