United States v. Harris , 712 F. App'x 108 ( 2018 )

17-786-cr
United States v. Harris
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
28th day of February, two thousand eighteen.
PRESENT: BARRINGTON D. PARKER,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-786-cr
JEREMY W. HARRIS,
Defendant-Appellant.
For Appellant: John A. Kuchera, Waco, Texas.
For Appellee: Monica J. Richards, Assistant United States
Attorney, for James P. Kennedy, Jr., United States
Attorney for the Western District of New York,
Buffalo, New York.
Appeal from a judgment of the United States District Court for the Western District of New
York (Wolford, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant Jeremy W. Harris (“Harris”) appeals from the judgment of the district court
convicting him, after pleading guilty pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement, of one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). On
appeal Harris argues that the district court lacked subject matter jurisdiction in his case because
the Information charging him with a violation of 18 U.S.C. § 1951 does not allege that his conduct
had a substantial effect on interstate commerce. Likewise, Harris claims that there are
insufficient facts to support his guilty plea because the theft of a can of beer and a package of
cigarettes from a 7-Eleven convenience store does not have a substantial effect on interstate
commerce.
We review the sufficiency of a charging instrument de novo. United States v. Geibel, 369
F.3d 682, 698 (2d Cir. 2004). When, as in this case, the defendant fails to object to a purported
Rule 11 violation before the district court, we review for plain error. United States v. Youngs,
687 F.3d 56, 59 (2d Cir. 2012). In so doing, we assume the parties’ familiarity with the facts and
record of the prior proceedings, which we reference only as necessary to explain our decision to
affirm the district court’s decision.
I. The Sufficiency of the Information
“In order to sustain a challenge to the district court’s jurisdiction, the defendant who has
pleaded guilty must establish that the face of the [charging instrument] discloses that the count or
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counts to which he pleaded guilty failed to charge a federal offense.” Hayle v. United States, 815
F.2d 879, 881 (2d Cir. 1987). Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires
that an information contain a “plain, concise, and definite written statement of the essential facts
constituting the offense charged.” In a Hobbs Act prosecution, we do not require that an
information “specify the precise nature of the effect upon interstate commerce that the government
intends to prove at trial.” United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). Rather, a
charging instrument is sufficient so long as it (1) “contains the elements of the offense charged
and fairly informs a defendant of the charge against which he must defend” and (2) “enables him
to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling
v. United States, 418 U.S. 87, 117 (1974).
Here, the Information specifies that Harris robbed a 7-Eleven on August 19, 2015. The
Information alleges that Harris “did unlawfully obstruct, delay and affect, and attempt to obstruct,
delay and affect, commerce” by robbery, in violation of 18 U.S.C. § 1951. The Information
further specifies that Harris’s crime involved theft of commercial goods from a commercial
establishment. The Information, therefore, was sufficient to provide the district court subject
matter jurisdiction because it contains the essential elements of a Hobbs Act robbery and contains
enough detail to enable Harris to prepare for his defense and to bar future prosecutions for the
same conduct.
II. Rule 11 Violation
Harris claims that there were insufficient facts to support his guilty plea because the theft
of a beer and a package of cigarettes from a 7-Eleven does not have a substantial effect on
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interstate commerce.1 In his view, if his crime “comes within the ambit of the Hobbs Act, then
the Hobbs Act has completely swallowed every local robbery in America.” Appellant’s Br. at
17.
The Hobbs Act makes it unlawful “in any way or degree” to obstruct, delay, or affect
“commerce or the movement of any article or commodity in commerce, by robbery or extortion .
. . .” 18 U.S.C. § 1951(a). In a Hobbs Act prosecution, the requirement that the robbery affect
interstate commerce is an element of the offense charged and jurisdictionally “critical” because
federal jurisdiction rests on interference with interstate commerce. Stirone v. United States, 361
U.S. 212, 218 (1960). Importantly, however, the government’s burden in proving a nexus to
interstate commerce is minimal. United States v. Shareef, 190 F.3d 71, 75 (2d Cir. 1999). The
Hobbs Act “regulates activities which, in the aggregate, have a substantial effect on interstate
commerce; hence, the ‘de minimis character of individual instances arising under [the] statute is
of no consequence.’” United States v. Elias, 285 F.3d 183, 188 (2d Cir. 2002) (quoting United
States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997)). Indeed, the government may establish an
interstate nexus by introducing evidence that the robbery was of a business that purchases
commodities that travel “in interstate commerce.” United States v. Jones, 30 F.3d 276, 285 (2d
Cir. 1994). Likewise, we have held that the robbery of a local enterprise may affect interstate
commerce “if the robbery impairs the ability of the local enterprise to acquire—whether from out-
of-state or in-state suppliers—goods originating out-of-state.” Elias, 285 F.3d at 189.
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In entering into the Rule 11(c)(1)(C) plea agreement, Harris agreed to waive his right to appeal
or collaterally attack his sentence. This waiver does not affect our Rule 11 analysis because we
do not strictly enforce appeal waivers where the defendant alleges an insufficient factual basis for
the plea. United States v. Adams, 448 F.3d 492, 497 (2d Cir. 2006).
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In this case, the factual basis supporting Harris’s plea demonstrates that his crime affected
interstate commerce. In pleading guilty, Harris accepted that he stole a can of beer and a package
of cigarettes from a 7-Eleven convenience store. He agreed that 7-Eleven operates stores all over
the country and that 7-Eleven purchases goods to stock its shelves from vendors located both
within and outside of New York. On these facts, the government established a sufficient nexus
between Harris’s crime and interstate commerce.
We have considered Harris’s remaining arguments on appeal and find them to be without
merit. We AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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