United States v. Hemingway , 108 F. App'x 83 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4394
MAURICE ISSAC HEMINGWAY, a/k/a
Mario,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Senior District Judge.
(CR-02-756)
Submitted: June 18, 2004
Decided: August 23, 2004
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Debra Y. Chapman, DEBRA CHAPMAN, P.A., Columbia, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HEMINGWAY
OPINION
PER CURIAM:
Maurice Issac Hemingway was convicted on all three counts of an
indictment alleging robbery, in violation of the Hobbs Act, 18 U.S.C.
§§ 1951(a), 2 (2000);* use of a firearm in relation to a robbery, 18
U.S.C. §§ 924(c) and 2 (2000); and possession of a firearm by a con-
victed felon, 18 U.S.C. §§ 922(g)(1), 924(a) (2000). The district court
sentenced Hemingway to 197 months imprisonment followed by five
years of supervised release. Hemingway was ordered to pay a $300
special assessment and $7.66 restitution. Hemingway appeals his con-
viction and sentence. Counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), raising three issues but
stating that, in his view, there are no meritorious grounds for appeal.
Hemingway was informed of his right to file a pro se supplemental
brief and raises one additional issue on appeal. Finding no error, we
affirm.
Counsel challenges the district court’s admission of Hemingway’s
confession, alleging it was involuntarily obtained through coercive
police activity. We hold that a review of the transcript of the suppres-
sion hearing reveals no error because the totality of the circumstances
does not indicate that Hemingway’s confession was involuntarily
given or the result of police coercion. United States v. Braxton, 112
F.3d 777, 780-81 (4th Cir. 1997); United States v. Pelton, 835 F.2d
1067, 1071 (4th Cir. 1987). Therefore, Hemingway’s confession was
not admitted in violation of the Fifth Amendment. Braxton, 112 F.3d
at 780.
Counsel further challenges the district court’s denial of Heming-
way’s motion for judgment of acquittal based on the robbery’s effect
on interstate commerce. This court reviews de novo a district court’s
decision to deny a motion for judgment of acquittal. United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). When, as here, the
*The aiding and abetting charge, 18 U.S.C. § 2, was added to Count
1 of the indictment at the close of evidence by the district court and the
United States Attorney. (J.A., Vol. I at 292-93, 320-22, 363-64, 369-70).
Hemingway did not object to the addition of the charge. (Id. at 322).
UNITED STATES v. HEMINGWAY 3
motion was based on insufficient evidence, "[t]he verdict of a jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). This court "ha[s] defined ‘substantial
evidence,’ in the context of a criminal action, as that evidence which
‘a reasonable finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’" United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003)
(quoting United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996)
(en banc)).
A conviction under the Hobbs Act requires proof of an underlying
robbery and an effect on interstate commerce. United States v. Wil-
liams, 342 F.3d 350, 353 (4th Cir. 2003), cert. denied, 124 S. Ct. 1189(2004). A conviction pursuant to the Hobbs Act will be sustained if
there is at least a minimal effect on interstate commerce. Id. at 354.
Simply depleting the assets of a business engaged in interstate com-
merce is all that is necessary to satisfy the interstate commerce nexus
of the Hobbs Act. United States v. Bengali, 11 F.3d 1207, 1212 (4th
Cir. 1993); United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir.
1990). Evidence was introduced at trial that approximately twenty
dollars was stolen from the Best Western hotel during the robbery,
Best Western is a national chain that receives supplies from out-of-
state, most of the hotel’s guests are from other states, and the hotel
had to turn away customers following the robbery. Viewing the evi-
dence in the light most favorable to the government, we find that a
reasonable factfinder could find beyond a reasonable doubt that the
robbery had an impact on interstate commerce.
In his final Anders claim, counsel argues that the district court
erred in enhancing Hemingway’s base offense level by two points
because the crime involved bodily injury. This court reviews the dis-
trict court’s factual finding that the clerk sustained a significant bodily
injury for clear error. United States v. Lancaster, 6 F.3d 208, 210 (4th
Cir. 1993).
A two-level increase in a defendant’s offense level is warranted if
a victim sustained bodily injury. U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(3)(A) (2002). "‘Bodily injury’ means any significant
injury; e.g., an injury that is painful and obvious, or is of a type for
4 UNITED STATES v. HEMINGWAY
which medical attention ordinarily would be sought." USSG § 1B1.1,
comment. (n.1(b)). "[T]o be ‘significant’ an injury need not interfere
completely with the injured person’s life but cannot be wholly trivial
and, while it need not last for months or years, must last for some
meaningful period." Lancaster, 6 F.3d at 209. Here, the hotel clerk
had a lingering red mark on his face from the barrel of Hemingway’s
shotgun. Further, the clerk reported having chest pains and was taken
to the hospital shortly after the incident for treatment. Based on these
facts, we find that the district court did not clearly err in applying a
two-level enhancement under USSG § 2B3.1(b)(3)(A).
In his pro se supplemental brief, Hemingway claims that the dis-
trict court erred by adding aiding and abetting, 18 U.S.C. § 2, to
Count 1 of the indictment. Because Hemingway did not object at sen-
tencing, this court’s review is for plain error. United States v. Marti-
nez, 277 F.3d 517, 525 (4th Cir.), cert. denied, 537 U.S. 899 (2002).
This court held in United States v. Duke, 409 F.2d 669, 671 (4th Cir.
1969), that aiding and abetting is implied by an indictment for any
crime and need not be separately specified. Further, when evidence
presented at trial supports an aiding and abetting theory, the court
may instruct on that theory even though it was not argued by the gov-
ernment. United States v. Horton, 921 F.2d 540 (4th Cir. 1990). In
any event, the evidence presented at trial established that Hemingway
was a principal in Count 1. Therefore, the district court did not plainly
err adding the charge.
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. Accordingly, we deny Heming-
way’s motion to substitute counsel and affirm his conviction and sen-
tence. This court requires that counsel inform her client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED