United States v. Drayton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4234
HEZEKIAH BERNARD DRAYTON, a/k/a
Little Bee,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-98-751)
Submitted: September 27, 2002
Decided: November 7, 2002
Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David G. Pagliarini, HINCHEY, MURRAY & PAGLIARINI, L.L.C.,
Charleston, South Carolina, for Appellant. J. Strom Thurmond, Jr.,
United States Attorney, William Witherspoon, Assistant United States
Attorney, Ann Agnew Cupp, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
2 UNITED STATES v. DRAYTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Hezekiah Bernard Drayton appeals his jury convictions of conspir-
acy to obstruct commerce by robbery, in violation of 18 U.S.C.
§ 1951(a) (2000); obstruction of commerce by robbery, in violation
of 18 U.S.C. §§ 2, 1951(a) (2000); using and carrying a firearm dur-
ing and in relation to a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(c)(1) (2000); and possessing a firearm after having been
convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), 924(e) (2000). The district court sentenced Drayton to two
terms of life imprisonment and one term of thirty years’ imprisonment
to be served concurrently, and a consecutive term of five years’
imprisonment. Drayton argues the evidence was insufficient to sup-
port his § 1951 convictions, the Government did not provide proper
notice of its intent to subject Drayton to enhanced penalties, and his
two firearms convictions are infirm because no specific weapon was
alleged in the indictment or charged to the jury. Finding no reversible
error, we affirm.
Drayton contends the evidence was insufficient to support his
§ 1951 convictions because the evidence did not establish a nexus
between the offense and interstate commerce. The jury verdict must
be sustained if, when construed in the light most favorable to the gov-
ernment, there is substantial evidence to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (en banc). "This court has stated that the juris-
dictional predicate of the Act [§ 1951] ‘may be satisfied though the
impact upon commerce is small, and it may be shown by proof of
probabilities without evidence that any particular commercial move-
ments were affected.’" United States v. Bailey, 990 F.2d 119, 125 (4th
Cir. 1993) (quoting United States v. Brantley, 777 F.2d 159, 162 (4th
Cir. 1985)).
UNITED STATES v. DRAYTON 3
To satisfy the interstate commerce nexus under a depletion of
assets theory there must be a reasonable probability Drayton’s acts
would have the effect of depleting the assets of an entity engaged in
interstate commerce. United States v. Bengali, 11 F.3d 1207, 1212
(4th Cir. 1993); United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir.
1990). The victim of the robbery, who was the owner of "The Win-
ery," testified as to the amount of money taken and the scope of The
Winery’s commercial activities. We conclude this evidence was suffi-
cient to support Drayton’s convictions under § 1951.
Second, Drayton argues the Government failed to provide proper
notice of its intent to seek enhanced penalties on counts one and two.
The Government initially filed an information notifying Drayton it
intended to seek enhanced penalties as provided in 18 U.S.C. § 3559(2000); however, it did not re-file its information after a second super-
seding indictment. To seek enhanced penalties under § 3559 based on
a defendant’s prior convictions, the Government must file an informa-
tion giving its notice to seek such penalties prior to trial or the entry
of a guilty plea. See 18 U.S.C. § 3559(c)(4); 21 U.S.C. § 851 (2000).
Drayton does not contend the Government’s initial filing was inade-
quate. We find the Government gave Drayton proper notice of its
intent to seek enhanced penalties. United States v. Williams, 59 F.3d
1180, 1185 (11th Cir. 1995); United States v. Wright, 932 F.2d 868,
882 (10th Cir. 1991).
Drayton argues the indictment as to counts four and six was insuf-
ficient because it did not allege a specific firearm. An indictment is
sufficient when it contains the elements of the charged offense, fairly
informs a defendant of the charges against him, and enables him to
plead double jeopardy in defense of future prosecutions for the same
offense. Hamling v. United States, 418 U.S. 87, 117 (1974). We find
the indictment was sufficient to comply with these criteria.
Drayton further argues the jury was required to be unanimous as
to the specific firearm involved. We disagree. See United States v.
Verrecchia, 196 F.3d 294, 300-01 (1st Cir. 1999); United States v.
Redd, 161 F.3d 793, 796-97 (4th Cir. 1998).
Lastly, Drayton challenges the sufficiency of the evidence as to his
two firearm convictions. We conclude the evidence, taken in the light
4 UNITED STATES v. DRAYTON
most favorable to the Government, is sufficient to sustain the convic-
tions. See United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir.
2001); United States v. Wilson, 135 F.3d 291, 304-05 (4th Cir. 1998).
Drayton filed a motion for reconsideration of this Court’s denial of
his motion to stay and to substitute counsel. We deny this motion. To
the extent Drayton attempts to submit a pro se supplemental brief
raising claims under United States v. Lopez, 514 U.S. 549 (1995), and
Castillo v. United States, 530 U.S. 120 (2000), we have reviewed the
issues and determine Drayton’s claims are without merit.
We deny the motion for reconsideration and affirm Drayton’s con-
victions and sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED