United States v. Tapp , 276 F. App'x 258 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5229
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUSTIN TAPP,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cr-00157-CMH)
Submitted: October 29, 2007 Decided: November 21, 2007
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bryan Saunders, Newport News, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Kelli H. Ferry, Assistant United
States Attorney, Michael J. Frank, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justin Tapp was charged in a four-count indictment with:
(1) conspiracy to distribute five grams or more of crack cocaine,
21 U.S.C. § 846 (2000) (Count One); (2) using or carrying a firearm
during or in relation to a drug trafficking crime, 18 U.S.C.A.
§ 924(c) (West 2000 & Supp. 2007) (Count Two); (3) robbery
affecting interstate commerce (“Hobbs Act”), 18 U.S.C. § 1951(2000) (Count Three); and (4) using or carrying a firearm during a
crime of violence, 18 U.S.C.A. § 924(c) (Count Four). He was
convicted of all four counts following a bench trial and sentenced
as follows: sixty months imprisonment on Count One; eighty-four
months on Count Two, consecutive to Count One; sixty months on
Count Three to run concurrently with Count One; and twenty-five
years on Count Four to run consecutively to the sentences on Counts
One and Two, for a total of thirty-seven years imprisonment.
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but raising the following potential
issues: (1) whether the evidence was sufficient to support Tapp’s
convictions; (2) whether the district court plainly erred at
sentencing by failing to ascertain that Tapp and his attorney had
reviewed the presentence report and by failing to advise Tapp of
his right to appeal; (3) whether there was sufficient nexus with
interstate commerce to establish federal jurisdiction; and (4)
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whether consecutive sentences under § 924(c) violate the Double
Jeopardy clause. Tapp has filed a pro se supplemental brief also
challenging the sufficiency of the evidence. We affirm.
The evidence presented at Tapp’s trial, viewed in the
light most favorable to the Government, see United States v.
Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.
Tapp met Robert Leggat in early September 2005 in Fairfax County,
Virginia. On September 13, Leggat invited Tapp to his friend
Colleen McCartney’s house--also in Fairfax--for a party. Tapp
brought crack cocaine to the party that he had obtained earlier
that day from Chase Wilson and “Suave” in Washington, D.C. Over
the next few days, Tapp returned to D.C. at least twice to obtain
more crack from Wilson and “Suave” which he, in turn, supplied to
McCartney and Leggat.
On September 17, Tapp returned to D.C. to obtain more
crack from Wilson and Suave. However, Wilson and Suave became
upset because Tapp had yet to pay for the crack cocaine they had
supplied to him and they demanded to know to whom Tapp had
distributed the crack. The three--Tapp, Wilson, and Suave--then
drove to McCartney’s home in Fairfax, hoping to collect the money
that she owed to Tapp. When they arrived at her home, they found
Robert McGhee in one of the bedrooms. While either Wilson or Suave
held a gun to McGhee’s head, Tapp used a knife to cut McGhee’s hair
and scalp, ultimately taking a small amount of cash and crack
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cocaine from him. We find that this evidence was sufficient to
support Tapp’s convictions as to all counts.
Next, counsel questions whether the district court
plainly erred in failing to advise Tapp of his right to appeal and
in failing to ascertain that he and his attorney had reviewed the
presentence report, as required by Fed. R. Crim. P. 32. Any
failure by the district court to advise Tapp of his right to appeal
is clearly harmless as his attorney timely filed a notice of
appeal. See Peguero v. United States, 526 U.S. 23 (1999) (holding
that a defendant who had independent knowledge of his right to
appeal was not prejudiced by a court’s failure to advise him of
that right).
Rule 32(i)(1)(A), Fed. R. Crim. P., requires the district
court to determine that the defendant and counsel have read and
discussed the presentence report prior to sentencing. See United
States v. Miller, 849 F.2d 896, 897-98 (4th Cir. 1988). This court
has not imposed upon district courts a “particular methodology for
compliance with Rule [32(i)(1)(A)].” United States v. McManus, 23
F.3d 878, 884 (4th Cir. 1994). Thus, the court need not expressly
ask whether the report has been read and discussed, as long as it
can be inferred from the record that the required discussion has
occurred. United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.
1995). Although the district court did not expressly ascertain at
sentencing that Tapp had reviewed the presentence report with his
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attorney, it is clear from the transcript of the proceedings that
Tapp and his attorney had in fact reviewed--and discussed--the
presentence report. Therefore, the district court did not clearly
err in failing to specifically ascertain that Tapp had reviewed the
presentence report with his attorney.
Tapp also argues that the theft of a relatively small
quantity of crack cocaine and cash that was taken from McGhee, “can
not be reasonably said to have an effect on commerce.” Because we
have held that the Hobbs Act interstate commerce element is
“satisfied even where the effect on interstate commerce is
indirect, minimal, and less than certain,” United States v. Buffey,
899 F.2d 1402, 1404 (4th Cir. 1990), this claim fails as well.
Finally, counsel addresses whether the consecutive
sentences imposed with respect to Counts Two and Four violate the
prohibition against double jeopardy because the same gun was used
in both offenses, which took place simultaneously. However, we
have specifically held that “multiple, consecutive sentences under
section 924(c)(1) are appropriate whenever there have been
multiple, separate acts of firearm use or carriage, even when all
of those acts related to a single, predicate offense.” United
States v. Camps, 32 F.3d 102, 106 (4th Cir. 1994). Accordingly,
this claim is without merit.
We have reviewed the claims addressed in Tapp’s pro se
supplemental brief and find them to be without merit. In
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accordance with Anders, we have reviewed the record in this case
and have found no meritorious issues for appeal. We therefore
affirm Tapp’s conviction and sentence. This court requires that
counsel inform Tapp, in writing, of the right to petition the
Supreme Court of the United States for further review. If Tapp
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Tapp.
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
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