DocketNumber: Docket No. 17-689; August Term, 2017
Citation Numbers: 891 F.3d 82
Judges: Katzmann
Filed Date: 5/30/2018
Status: Precedential
Modified Date: 11/2/2022
Defendant-appellant Floyd Rose appeals the order of the United States District Court for the Southern District of New York (Oetken, J. ) denying Rose's motion to withdraw his plea of guilty to one count of Hobbs Act robbery,
BACKGROUND
At around 9:20pm on June 10, 2015, a soon-to-be robbery victim deposited money into his account at a Citibank located on West 32nd Street in Manhattan. A short time later, defendant Floyd Rose asked the victim for directions to a church. James Arberry (Rose's codefendant) approached and said he could help them find the church. As they were walking, Arberry placed a hard object against the victim's back and told him that he was being robbed. Arberry and Rose, however, did not take any money or property from the victim's person. Instead, with Rose waiting on a bench, Arberry and the victim went to the Citibank, where the victim used an ATM to withdraw $900 from his account. Arberry and the victim returned to the bench, where the victim gave Rose the $900. The victim was then released.
At a hearing on June 24, 2016, Rose pled guilty, pursuant to a plea agreement, to one count of Hobbs Act robbery. As Rose concedes on appeal, the district court held a "thorough" plea colloquy that "address[ed] all the required aspects of Rule 11." Br. of Appellant at 3. During the hearing, Rose stated that "[o]n June 10, 2015, [he], with another, took a person's property by force and made them withdraw money from an ATM machine." App. 32. The government agreed that that was a sufficient factual basis for the plea and "proffer[ed] that the withdrawal from the ATM machine was from a bank that does business in interstate commerce."
On August 4, 2016, Rose, acting pro se , sent a letter to the district court claiming that his attorney, Robert Soloway, had coerced him into pleading guilty and seeking to withdraw his guilty plea. On August 23, 2016, Rose submitted a pro se motion and affidavit to the same effect. The affidavit asserted in passing that Rose was legally innocent because he did not use *85"force or violence" during the robbery. The district court appointed new counsel for Rose and held an evidentiary hearing at which the sole witness was Rose's original counsel. Soloway testified that he or an associate had met with Rose multiple times, that their relationship was uncontentious, that he thought the government had a "formidable" case, and that Rose had instructed him to get the best possible deal.
DISCUSSION
On appeal, as below, Rose argues that the district court erred in refusing to allow him to withdraw his guilty plea. "[A] defendant may withdraw a plea of guilty after it is accepted, but before sentencing, only if the defendant can show a 'fair and just reason for requesting the withdrawal.' " United States v. Rivernider ,
Rose takes a different tack on appeal than he did in the district court, and no longer disputes that his plea was knowing and voluntary. He instead argues that he is legally innocent of Hobbs Act robbery because the robbery had an insufficient effect on interstate commerce.
Ordinarily, "[w]e review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion and any findings of fact in connection with that decision for clear error." Rivernider ,
We find that the district court committed no error, let alone an error that was plain and affected Rose's substantial rights. The Hobbs Act provides as follows:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or 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 *86violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
We have found the jurisdictional element satisfied when the victim of a robbery is an individual, as opposed to a business, in the following circumstances:
(i) where the victim directly participated in interstate commerce; (ii) where the defendant targeted the victim "because of her status as an employee at a company participating in interstate commerce"; (iii) where the assets of a company engaged in interstate commerce were, or would have been, depleted as a result of the harm or potential harm, respectively, to the individual victim; or (iv) where the defendant targeted the assets of a business engaged in interstate commerce rather than an individual.
United States v. Wilkerson ,
Rose argues that his robbery of an individual victim lacked even a de minimis effect on interstate commerce. According to Rose, the victim was not himself engaged in interstate commerce, nor was the victim targeted because of his status as an employee of a firm engaged in interstate commerce. The money belonged to the victim, not Citibank, and thus no assets of a firm engaged in interstate commerce were depleted. Similarly, Rose argues that he was not targeting a firm's assets, but the individual victim's. Accordingly, although Rose concedes that he committed a state-law crime, he contends that did not commit a federal robbery.
We conclude that Rose's robbery falls within the scope of the Hobbs Act because Rose "targeted the assets of a business engaged in interstate commerce rather than an individual." Wilkerson ,
We are further unpersuaded by the Fifth Circuit's decision in United States v. Burton , upon which Rose heavily relies.
We decline to follow Burton to the extent that it concluded that a forced ATM withdrawal, by itself, cannot support Hobbs Act jurisdiction. The mere fact that the bank did not have "custody" over the funds at the precise moment that the robber stole the victim's money (the key question for bank robbery, under the Burton framing) does not mean that the crime lacked a de minimis effect on interstate commerce (the key question for Hobbs Act robbery). For the reasons set forth above, we find that Rose's robbery had a sufficient impact on interstate commerce to establish Hobbs Act jurisdiction.
CONCLUSION
We have considered Rose's remaining arguments and conclude they are without merit. Accordingly, the judgment of the district court is AFFIRMED .
The factual summary is drawn from Rose's Presentence Investigation Report, whose recitation of the facts is not disputed by the parties.
In coming to this conclusion, we do not decide whether Rose's robbery affected interstate commerce under the other factors set forth in Perrotta . See
Although Rose only pled guilty to one count of robbery of $900, he was originally charged with two robberies, and the $1,900 restitution reflects amounts stolen in both.
Rose also unpersuasively relies on our decision in Silverio , where we found that the jurisdictional element of the Hobbs Act was satisfied where robbers broke into a celebrity doctor's house and stole $300.