United States v. Sinisa Muratovic , 719 F.3d 809 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3889
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S INISA M URATOVIC,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 217-2—James B. Zagel, Judge.
A RGUED JUNE 4, 2013—D ECIDED JUNE 25, 2013
Before F LAUM, S YKES, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. Sinisa Muratovic pled guilty to a
three-count indictment charging him with attempted
robbery in violation of the Hobbs Act, conspiracy to
commit robbery in violation of the Hobbs Act, and
knowingly carrying a firearm during and in relation to
a crime of violence. He now challenges that plea on
three grounds. We affirm.
2 No. 11-3889
I. Background
A. Factual Background
During his change of plea hearing, Muratovic admitted
to planning a robbery of a truck that he believed would
carry a large amount of drug money from Illinois to
California. For four to five months in 2008, Muratovic
and his co-conspirators planned the robbery and con-
ducted surveillance on the truck. On December 7, 2008,
the group met to finalize the robbery plan. They would
follow the truck as it left Illinois, and the robbery would
occur at a highway rest stop after one of the passengers
had exited to use the restroom. At that time, the co-con-
spirators would don disguises, rush toward the
remaining occupant of the truck, threaten that per-
son at gunpoint, and steal the money, using violence
if necessary.
That same evening, the co-conspirators invited Individ-
ual A, a police informant who agreed to wear a wire,
to participate in the scheme. In the early, pre-dawn
hours of the next day—December 8—Muratovic and his
crew met in the parking lot of a Niles grocery store,
carrying firearms intended for use to threaten or shoot
the targets of the robbery. From this meeting, they
traveled to another location to pick up yet another gun.
Sufficiently armed, the co-conspirators located their
target, a yellow truck, in an Addison, Illinois parking lot
and began conducting additional surveillance.
Next, two co-conspirators went on several supply runs
while the others remained at the Addison parking lot,
No. 11-3889 3
watching the truck. The two purchased additional items
for use in the robbery: a knife, two cans of pepper spray,
gas cans, duct tape, clothing for disguising themselves,
and a magnification scope. Equipped with everything
needed to consummate their plan, the co-conspirators
continued sitting in the Addison parking lot, waiting for
the truck to depart. Finally, the occupants of the truck
arrived. In the early afternoon, however, Muratovic left
the surveillance site without having robbed the truck.
In the weeks that followed, he continued to discuss the
robbery plan with his co-conspirators and Individual A.
Satisfied with Muratovic’s competency, the district
court found the plea knowing and voluntary. The court
accepted the plea.
After Muratovic’s guilty plea, the government sub-
mitted its version of the offense (the “Government’s
Version”), providing additional details about the plot.
It attached transcripts made from the recordings of Indi-
vidual A’s meetings with Muratovic and the other co-
conspirators. That transcript revealed the extensiveness
of the robbery plot and highlighted Muratovic’s role in
the robbery.
Muratovic also offered additional details in his post-
arrest interview, the report of which was attached to
the Government’s Version. He described how he drove
his co-conspirators to the truck’s location to “case” the
truck and explained how he sought out a second gun
for the robbery. He admitted to carrying guns the night
of the planned robbery and to having guns with him
in the car while driving to find the truck in Addison.
4 No. 11-3889
Muratovic also explained the need for the gas cans. The
targeted truck could travel farther without refueling
than Muratovic’s car, so the conspirators bought the
gas cans to refuel more quickly on the highway shoulder
rather than exiting for a gas station. They had even filled
up the gas cans on the night planned for the robbery.
Finally, Muratovic explained why he left in the after-
noon without completing the robbery. While he and
his crew were waiting, he saw a car pull into the
parking lot with the truck, remain for five minutes, and
then leave. Muratovic thought the driver of this car
was the driver of the truck. He believed that the
driver left the parking lot after spotting Muratovic.
The yellow truck never left the Addison parking lot, and
the co-conspirators were unable to execute their plan
on December 8.
B. Procedural History
Muratovic did not dispute these facts and did not
submit his own version of the offense. Nor did Muratovic
dispute the findings of the pre-sentence report (PSR),
which the district court adopted without change. He
ultimately received a 90-month prison term and now
appeals from his conviction, raising three grounds of
error. First, he suggests that no factual basis existed for
Hobbs Act jurisdiction. Second, he attacks his attempt
conviction, suggesting the absence of a factual basis
that he took a substantial step toward commis-
sion of the robbery. Finally, he argues that conspiracy
No. 11-3889 5
to violate the Hobbs Act is not a violent felony under
§ 924(c).
II. Discussion
Muratovic raised none of these issues before the
district court so we review each only for plain error.
United States v. Arenal, 500 F.3d 634, 637 (7th Cir. 2007).
That standard requires “obvious” error that is “clear
under current law.” United States v. McGee, 60 F.3d 1266,
1271-72 (7th Cir. 1995).
When a defendant pleads guilty, the court must find
“a factual basis for the plea” before “entering judgment.”
Fed. R. Crim. P. 11(b)(3). In doing so, a court may rely
on any facts in the record to which the defendant
assented or, at least, did not object. United States v. Davey,
550 F.3d 653, 658 (7th Cir. 2008); Arenal, 500 F.3d at 638.
Compare Fed. R. Crim. P. 11(b)(1)-(2) (requiring district
court to make certain findings “[b]efore accepting a
plea of guilty” (emphasis added)), with Fed. R. Crim.
P. 11(b)(3) (requiring district court to find a factual basis
“[b]efore entering judgment on a guilty plea” (emphasis
added)). Thus, although Muratovic focuses only on the
facts to which he admitted at the change of plea hearing,
we may look beyond that brief exchange and also
consider the facts presented in the Government’s
Version and in the PSR because Muratovic objected to
6 No. 11-3889
neither.1 Taking all those facts into account, we see plenty
to provide a factual basis for Muratovic’s plea, both as
to satisfaction of the jurisdictional element and the sub-
stantial step requirement. Because we find no deficiency
in Muratovic’s attempted robbery conviction, we need
not address his challenge to the § 924(c) conviction.
A. The Record Provides a Factual Basis to Support
a Finding that Muratovic’s Hobbs Act Robbery
Scheme Affected Interstate Commerce
The Hobbs Act prohibits “obstruct[ing], delay[ing], or
affect[ing] commerce or the movement of any article
or commodity in commerce, by robbery.” 18 U.S.C.
§ 1951(a). The jurisdictional requirement—that the
robbery obstruct, delay, or affect commerce—is broad,
1
Muratovic asks us not to consider the transcript of conversa-
tions captured on Individual A’s wire. These quotes were not
set forth in the actual PSR but only attached as an exhibit to
the Government’s Version. Because he could object only to the
PSR and not the Government’s Version, he argues that these
are not facts the court may consider in evaluating whether a
factual basis exists for the plea. But Muratovic ignores that the
PSR attached the Government’s Version, including the tran-
script. And he also ignores that though he had the oppor-
tunity to submit his own version of the offense, he did not do
so. See N.D. Ill. Crim. R. 32.1(e) (directing defense counsel to
submit defendant’s version of the offense and noting “[f]ailure
to submit a version of the offense conduct . . . may constitute
waiver of the right to have such material considered within
the PSR”).
No. 11-3889 7
coextensive with the power to regulate commerce that
Congress enjoys under the Commerce Clause. See id.§ 1951(b)(3); United States v. Shields, 999 F.2d 1090, 1098
(7th Cir. 1993) (citing Stirone v. United States, 361 U.S.
212, 215 (1960)). Because the Hobbs Act criminalizes
not just successful robberies but attempts as well, the
government need not prove that the defendant’s actions
actually obstructed, delayed, or affected commerce; a
“realistic probability” of that result is enough. United
States v. Bailey, 227 F.3d 792, 797 (7th Cir. 2000). Given
Muratovic’s own statements, captured on the con-
fidential informant’s wire, no “obvious error” arose
from the district court’s entry of judgment on
Muratovic’s plea to the attempted robbery charge.
Muratovic hatched a plan to steal money from indi-
viduals traveling cross-country for the express purpose
of making a purchase with that money. “[C]ommerce is
affected when an enterprise, which either is actively
engaged in interstate commerce or customarily pur-
chases items in interstate commerce, has its assets
depleted through [robbery], thereby curtailing the
victim’s potential as a purchaser of such goods.” Bailey,
227 F.3d at 798-99 (quoting United States v. Elders, 569
F.2d 1020, 1025 (7th Cir. 1978)); accord Shields, 999 F.3d at
1098; United States v. Rindone, 631 F.2d 491, 493-94 (7th
Cir. 1980) (per curiam). We have labeled this jurisdic-
tional rationale the “asset depletion theory.” Here,
Muratovic targeted a truck he believed would travel
from Illinois to California with the purpose of engaging
8 No. 11-3889
in a commercial transaction.2 This plan thus presented a
“realistic possibility” of depleting the victims’ resources
and thereby curtailing the victims’ ability to complete
that commercial transaction, providing the nexus to
commerce necessary for Hobbs Act jurisdiction.
Muratovic protests that “the government did not
allege that this truck actually contained money or that
the truck would have actually crossed state lines.” His
protest, however, is misplaced. The record abounds with
evidence suggesting Muratovic and his co-conspirators
planned to rob the truck after it crossed state lines. The
PSR explains that “[d]efendant Muratovic explained they
would not rob the truck until it left Illinois.” The con-
versations captured on the informant’s wire confirm
this aspect of the plan. They make clear that the co-con-
spirators believed the truck would carry large amounts
of drug money to California and return to Illinois with
drugs. And their preparations reveal an intention to
follow the truck for more than a minimal portion of that
drive: they had purchased gas cans and gasoline to
allow for quicker refueling on the side of the highway,
rather than at a gas station. Finally, Muratovic’s co-con-
spirators explicitly stated their reason for planning to
rob the truck only after it had crossed the state line: “It
is better if we do not hit them in Illinois. If we hit them
2
Although the transaction would have been illegal, the Hobbs
Act applies no less when the “article or commodity” at issue
is contraband. See, e.g., Bailey, 227 F.3d at 798; United States
v. Thomas, 159 F.3d 296, 297-98 (7th Cir. 1998).
No. 11-3889 9
in Illinois, they would think that somebody from the
local area hit them.” 3
Admittedly, the government offered no proof that
the yellow truck cased by Muratovic and his fellow
conspirators actually did contain drug money and
actually was slated for a drug run to California. It didn’t
need to offer such proof, though, if the facts as the de-
fendant believed them satisfy the jurisdictional element.
See Bailey, 227 F.3d at 798-99. After all, “mistake of fact
is not a defense to an attempt charge.” United States v.
Cote, 504 F.3d 682, 687 (7th Cir. 2007); see also id. (noting
that the inability to complete the crime “does not diminish
the sincerity of any efforts to accomplish that end” (quot-
ing United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994))).
Like Muratovic’s case, Bailey also involved a defendant
planning to steal a drug dealer’s drug money. 227 F.3d
at 798-99. In reality, the targeted victim was not a true
drug dealer but an FBI informant with no intention of
ever selling drugs. Thus, the Bailey defendant argued, the
effect on interstate commerce was “purely imaginary.” Id.3
Other parts of the conversation confirm that initiating the
robbery outside Illinois formed a key aspect of the plan. “The
thing is,” one co-conspirator told another, “they will not expect
this. When they leave Illinois, they will become comfortable.
They will go through Oklahoma. They always use the same
route.” Later, the same co-conspirator explained that “[t]hey
take money to California to buy grass there. Then they bring the
grass here. I do not want the grass. It is a big hustle. Cash
is cash. Especially if we hit them out of Illinois, they won’t
know anything.”
10 No. 11-3889
at 798. Nevertheless, the Bailey defendant’s belief that
he would rob a cocaine dealer provided the realistic
possibility of interstate effects because “the robbery of
cocaine dealers has an effect on interstate commerce.” Id.
at 799; see also Thomas, 159 F.3d at 297-98. Such belief
provides the requisite interstate effect in this case, too.
Muratovic readily admitted that he believed the
truck “periodically traveled from Illinois to California
carrying hundreds of thousands of dollars to be used
to purchase large quantities of marijuana.” If anything,
Muratovic’s situation presents a stronger case for juris-
diction than found in Bailey. Bailey relied on the more
general interstate effect of cocaine trafficking in the
aggregate, not on any beliefs the Bailey defendant
held about the interstate activities of the specific drug
dealer he planned to rob. 227 F.3d at 798-99. Muratovic,
in contrast, knew the interstate dealings of his specific
target. In fact, interstate travel formed a crucial plank
in the robbery plan. It offered the rest stop venue
that would isolate the truck’s driver and shield the co-
conspirators from the suspicion that would arise if the
robbery occurred in Illinois. On this record, we find no
plain error in the district court’s conclusion that a
factual basis supported federal jurisdiction under
the Hobbs Act.
United States v. Watson, 525 F.3d 583 (7th Cir. 2008),
does not require otherwise. That case also involved
stolen money, and the defendant challenged his convic-
tion on jurisdictional grounds. The government offered
two theories in support of jurisdiction—the asset deple-
tion theory described above and a separate theory that
No. 11-3889 11
the money itself is an article that travelled in interstate
commerce. Id. at 590. Watson rejected only the second:
“if cash could serve as the jurisdictional hook, any
robbery would be a federal crime under the Hobbs Act.”
Id. Nothing in Watson questioned the validity of the
asset depletion theory for proving jurisdiction under the
Hobbs Act. See id. More importantly, the Watson court’s
chief concern was the failure of the jury to return a
special verdict identifying the jurisdictional theory
under which it convicted. Id. “When an indictment
offers two theories of liability and a jury returns a
general verdict that does not say under which theory it
convicted, . . . we cannot . . . credit the jury if one of
the theories is legally insufficient[.]” Id. (emphasis in
original). Of course, Muratovic pled guilty. Thus, Watson’s
conclusions regarding the legal sufficiency of the gov-
ernment’s second theory in that case have no bearing
here, where the asset depletion theory quite properly
establishes jurisdiction.
B. The Record Provides a Factual Basis for Concluding
Muratovic Took a Substantial Step Toward Commit-
ting Hobbs Act Robbery
The Hobbs Act criminalizes not just robbery but at-
tempted robbery as well. See § 1951(a). Attempt convic-
tions require specific intent to commit the full rob-
bery and a substantial step taken toward that end. E.g.,
United States v. Villegas, 655 F.3d 662, 668 (7th Cir.
2011); United States v. Barnes, 230 F.3d 311, 314 (7th
Cir. 2000). Muratovic argues only that the record lacks
12 No. 11-3889
a factual basis for the substantial step requirement.
Again, we find no plain error in the district court’s con-
clusion otherwise.
A substantial step is “some overt act adapted to, ap-
proximating, and which in the ordinary and likely course
of things will result in, the commission of the particular
crime.” Villegas, 655 F.3d at 669 (quoting United States
v. Gladish, 536 F.3d 646, 648 (7th Cir. 2008)). It requires
“something more than mere preparation, but less than
the last act necessary before actual commission of the
substantive crime.” E.g., Barnes, 230 F.3d at 315 (citing
United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985)).
This line between mere preparation and a substantial
step is “inherently fact specific; conduct that would
appear to be mere preparation in one case might qualify
as a substantial step in another.” Villegas, 655 F.3d at
669 (quoting United States v. Sanchez, 615 F.3d 836, 844
(7th Cir. 2010)). Generally, a defendant takes a sub-
stantial step when his actions “make[] it reasonably
clear that had [the defendant] not been interrupted or
made a mistake . . . [he] would have completed the
crime.” Sanchez, 615 F.3d at 844 (quoting Gladish, 536
F.3d at 648).
The record in this case provides plenty from which to
find a factual basis that had Muratovic “not been inter-
rupted or made a mistake . . . [he] would have com-
pleted the crime.” Id. By the afternoon of December 8,
the co-conspirators had assembled a team, finalized the
robbery plan, conducted surveillance on the truck, pro-
cured two handguns and all other supplies called for in
No. 11-3889 13
the plan, and even filled up gas cans for use while fol-
lowing the truck on the highway. They had arrived at
the origination point for the robbery on the day set for
the robbery. And Muratovic’s own admissions permit
the inference that full execution of the robbery on Decem-
ber 8 fell through only because he suspected the
truck’s driver had seen his surveillance and abandoned
the plan to leave for California that day. See Villegas, 655
F.3d at 669 (evidence supported attempt charge by
“mak[ing] reasonably clear that had [the defendant] not
been interrupted, he would have participated in the
robbery”). Thus, Muratovic’s actions leading up to the
afternoon of December 8 provide a factual basis sup-
porting Muratovic’s guilty plea to the attempt charge.
Muratovic argues his conduct amounted only to mere
preparation. But other cases have found the substantial
step requirement satisfied by facts nearly identical to
those in this case. In Villegas, for example, the defendant
hatched a plan to rob an armored truck when it stopped
at a particular ATM. 655 F.3d at 665. To that end, he
pre-arranged a meeting location, procured license plates
for use on the getaway car, and cased the location
planned for the robbery. Id. at 669. The defendant also
discussed with his co-conspirators disguises the team
would wear during the robbery and ensured a gun was
stashed in the trunk of the car, confirming that the gun
“work[ed] and everything.” Id. Officers arrested the
defendant about one mile from the ATM on the day of
the robbery. Id. at 666. Noting this conduct occurred
after eight weeks of recorded conversations detailing
the specifics of the plan, Villegas found the conduct
14 No. 11-3889
“went beyond mere preparation and was strongly cor-
roborative of the firmness of [the defendant’s] criminal
intent” to commit Hobbs Act robbery. Id. at 669 (internal
punctuation and citation omitted); see also Barnes,
230 F.3d at 315. This conduct is nearly identical to
Muratovic’s: both defendants developed an extensive
and detailed robbery plan over several months’ time,
engaged in all preparations called for in the plan, and
had arrived at the site of the planned robbery on the day
of the planned robbery. In light of Villegas, the district
court did not commit plain error in concluding that
Muratovic engaged in a substantial step toward com-
mitting the planned robbery.
Muratovic challenges two of these key facts. First, he
argues that nothing in record suggests he intended to
actually commit the robbery on December 8. Muratovic’s
own words, uttered early on the morning of December 8
while the co-conspirators prepared for the robbery,
reveal otherwise: “I am telling you that we will have
him this evening. He is ours this evening, man, no
matter what! Whether I had to kill him or not, he . . . we
will take everything from him, man. The man has money,
man. The man drives a Bentley, man” (emphasis added).
Furthermore, the PSR states that “[i]t was further part
of the scheme that, on or about December 8, 2008, the
defendants and Individual A waited for hours near the
location of the truck for the occupants of the truck to
leave” (emphasis added). The record therefore provides
a factual basis to believe Muratovic and his co-con-
spirators planned to commit the robbery that day.
No. 11-3889 15
But even if the co-conspirators did not arrive at the
Addison parking lot planning to rob the truck that day,
crossing from mere preparation to a substantial step
does not require police to wait until the day of the
planned crime to intervene with an arrest. Sanchez, for
example, found a substantial step toward a kidnapping
when the defendant procured a safehouse, arranged for
the cooperation of a Mexican drug cartel, and approved
a van for use in the kidnapping. 615 F.3d at 844. It did
not matter that “the kidnapping was not imminent at
the moment [the defendant] was arrested” because the
defendant still “need[ed] a week to secure license plates
for the van.” Id. Thus, satisfaction of the substantial step
requirement does not turn on whether the defendant
has reached the day planned for the robbery.
Second, Muratovic argues that nothing in the record
confirms that he ended his surveillance of the truck only
after he thought the drivers of the truck had seen him.
Again, the record provides a factual basis for this con-
clusion. Muratovic told police after his arrest that he
believed the driver of a car that pulled into the Addison
parking lot was the truck driver, who ultimately left
without boarding the yellow truck because he saw the co-
conspirators casing the truck. His statements on the
recording corroborate this belief. “An old man,” Muratovic
told his co-conspirators. “You know how he was
looking at us, bro.” Thus, the record provides factual
support that Muratovic left his surveillance post only
because he believed his target had spotted him and, as
a consequence, opted not to begin the drug run that day.
16 No. 11-3889
In short, what matters for the substantial step inquiry
is whether the defendant has made it “reasonably clear”
that without the interruption or mistake, he would have
ultimately consummated the criminal plot. See Sanchez,
615 F.3d at 844 (quoting Gladish, 536 F.3d at 648). Given
the record here—which showed a detailed and finalized
robbery plan, extensive surveillance, and possession of
all implements called for in the plan—and its factual
similarity to Villegas, Muratovic’s actions made it “rea-
sonably clear” that had the truck in question departed
for California while Muratovic and his co-conspirators
were watching it on December 8, they would have been
following closely behind, waiting for the truck to reach
a rest stop.
C. The Court Need Not Reach the Question of Whether
Conspiracy to Commit Hobbs Act Robbery Qualifies
as a Crime of Violence Under 18 U.S.C. § 924(c)
In his final assault on his guilty plea, Muratovic chal-
lenges his conviction under § 924, arguing that con-
spiracy to commit Hobbs Act robbery is not a crime of
violence within the scope of that statute. We do not
reach this question, however, because the indictment
identified both the attempt and conspiracy charges as
crimes of violence under § 924(c). Muratovic has not
argued that attempted Hobbs Act robbery falls outside
the scope of § 924(c) so his conviction under § 924(c)
must stand even if we accepted his argument that con-
spiracy to commit Hobbs Act robbery is not a crime
of violence. Because resolution of that question has no
impact on this appeal, we leave it unanswered today.
No. 11-3889 17
III. Conclusion
For these reasons, we A FFIRM Muratovic’s conviction
and guilty plea.
6-25-13