United States v. Dominque Wells ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10335
Plaintiff-Appellee, D.C. No.
2:14-cr-00280-JCM-GWF-1
v.
DOMINQUE WELLS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted July 13, 2018
Submission Deferred August 15, 2018
Resubmitted September 1, 2020
San Francisco, California
Before: HAWKINS, BEA, and HURWITZ, Circuit Judges.
Dominque Wells appeals his jury conviction and sentencing on twelve counts:
seven total counts of Hobbs Act robbery and conspiracy to commit Hobbs Act
robbery under 18 U.S.C. § 1951 and five counts of use of a firearm in relation to a
crime of violence under 18 U.S.C. § 924(c). On appeal, Wells challenges (1) the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court’s order denying his motion to dismiss, (2) the district court’s order
granting his motion to represent himself at trial, (3) various evidentiary rulings, (4)
certain jury instructions, (5) his § 924(c) convictions, and (6) the district court’s
sentencing determinations. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
vacate the sentence for Wells’s Hobbs Act robbery convictions, and remand to the
district court for resentencing on those convictions. We affirm the district court in
all other respects.
1. Wells was not entitled to dismissal of his indictment for lack of
jurisdiction. We review de novo. See United States v. Phillips, 367 F.3d 846, 854
(9th Cir. 2004).
The Hobbs Act subjects a person to criminal liability if he “in any way or
degree obstructs, delays, or affects commerce . . . by robbery.” § 1951(a). “The Act
defines ‘commerce’ broadly as interstate commerce ‘and all other commerce over
which the United States has jurisdiction.’” Taylor v. United States, 136 S. Ct. 2074,
2077 (2016) (quoting § 1951(b)(3)). It is well-established that even a de minimis
effect on interstate commerce is sufficient to support jurisdiction. United States v.
Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004).
The Government presented evidence that Wells robbed a 7-Eleven
convenience store, two liquor stores, a title and payday loan business, and a
GameStop store. Wells characterizes his alleged conduct as intrastate, thereby
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falling outside the purview of the commerce clause. He acknowledges authority
contrary to his position, but seeks a “modification of existing interpretations,” urging
us to consider a much narrower view of “affects commerce.” Precedent, however,
constrains us from doing so. See, e.g., Taylor, 136 S. Ct. at 2079–81 (affirming
Hobbs Act conviction for robbery of a drug dealer and reiterating that “it makes no
difference under our cases that any actual or threatened effect on commerce in a
particular case is minimal”); Rodriguez, 360 F.3d at 955 (affirming Hobbs Act
conviction for robbery of a “business enterprise” and reinforcing that “[r]obbery of
an interstate business . . . typically constitutes sufficient evidence to satisfy the
Hobbs Act’s interstate commerce element”).
2. The district court did not err in granting Wells’s motion to represent
himself at trial. Because waiver of counsel is a mixed question of law and fact, we
review de novo. United States v. Erskine, 355 F.3d 1161, 1161 (9th Cir. 2004).
The Sixth Amendment’s guarantee of the right to assistance of counsel does
not preclude a criminal defendant from waiving that right and representing himself
at trial. See Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942). To
do so, a defendant must knowingly and intelligently waive that right. Faretta v.
California, 422 U.S. 806, 835 (1975). The district court must ensure that the
defendant “understands 1) the nature of the charges against him, 2) the possible
penalties, and 3) the dangers and disadvantages of self-representation.” Erskine, 355
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F.3d at 1167 (internal citation omitted). However, “a defendant need not himself
have the skill and experience of a lawyer.” Faretta, 422 U.S. at 835.
After Wells moved to represent himself at trial, the district court held an
adequate Faretta hearing, asking Wells a series of questions relating to his
understanding of the task at hand. Cf. Lopez v. Thompson, 202 F.3d 1110, 1119 (9th
Cir. 2000) (affirming denial of request for writ of habeas corpus and concluding that
defendant knowingly and intelligently waived his right to counsel because the
district court inquired about “the defendant’s understanding of the importance of
counsel, not the defendant’s understanding of the substantive law or the procedural
details”). Wells asks “for a slight modification of Faretta and its progeny” to support
his position that a district court should also consider a defendant’s legal skills and
understanding. We decline to do so.
3. The district court did not commit either evidentiary error that Wells
alleges. Because Wells did not object at trial to either alleged error, both claims are
subject to plain error review. United States v. Tamman, 782 F.3d 543, 552 (9th Cir.
2015).
Wells first challenges the authentication of a surveillance video that recorded
the 7-Eleven robbery. The Government moved to admit the surveillance video
following the testimony of 7-Eleven employee Trayvon Perry. Although Perry did
not work at the 7-Eleven store at the time of the robbery, Perry was managing the
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store at the time of trial. Perry testified that he was familiar with the store’s
surveillance system, that he personally knew the victim who appeared in the
surveillance video, and that the surveillance video accurately portrayed both the
victim and the store. Accordingly, Perry’s authentication testimony was sufficient
“to support a finding that the item is what the proponent claims it is.” See Fed. R.
Evid. 901(a); United States v. Gadson, 763 F.3d 1189, 1203–04 (9th Cir. 2014)
(affirming admission, under plain error standard, of taped prison telephone calls
made by the defendant after officer, who was not present for the calls, testified about
his familiarity with the telephone system).
Wells next argues that the district court improperly admitted testimony
touching upon an ultimate issue reserved for the jury. When Detective Patrick Flynn
was asked in his sixteen years of experience whether it is “common for federal
authorities to become involved in these types of cases,” he answered, “Yes.” When
asked whether “this type of offense is a violation of both federal and state law,”
Detective Flynn again testified, “Yes.” It is not plain or “so obvious,” despite
Wells’s contention otherwise, that Detective Flynn offered an opinion on whether
Wells’s alleged conduct specifically violated federal law, thereby usurping the jury’s
role in determining Wells’s guilt or innocence; rather, Detective Flynn seemed to
offer a general insight on what was “common” in investigating “these types of
cases.” Cf. Fed. R. Evid. 704 (prohibiting testimony on “whether the defendant did
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or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense”). Therefore, the district court did not clearly err in admitting
Detective Flynn’s testimony.
4. The district court did not err in declining to give Wells’s proposed jury
instruction defining “commerce.” Wells’s requested definition derives from the
Hobbs Act itself, § 1951(b)(3), while the district court’s definition derives from the
Ninth Circuit Model Criminal Jury Instructions. Reviewing de novo, we fail to see
the substantive difference between “commerce between any point in a State . . . and
any point outside thereof” and “commerce from one state to another.” The district
court’s instruction adequately covered a theory of Wells’s defense that he sought to
present. See United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir. 1981) (“The jury
must be instructed as to the defense theory of the case, but the exact language
proposed by the defendant need not be used, and it is not error to refuse a proposed
instruction so long as the other instructions in their entirety cover that theory”).
5. Wells challenges his convictions for use of a firearm in relation to a
crime of violence under 18 U.S.C. § 924(c) on the basis that the predicate offense,
Hobbs Act robbery, is not actually a “crime of violence.” This argument, however,
is foreclosed by our recent opinion in United States v. Dominguez, 954 F.3d 1251(9th Cir. 2020). In that opinion, we rejected many of the same arguments that Wells
presents here and determined that Hobbs Act robbery is categorically a crime of
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violence under § 924(c)(3)(A). Id. at 1261. Similarly, here, we affirm Wells’s
convictions under § 924(c).
6. Lastly, Wells challenges his sentence. The district court sentenced him
to 70 months imprisonment to run concurrently for the seven Hobbs Act robbery and
conspiracy counts, 84 months for the first of the § 924(c) counts, and 300 months
for each of the remaining four § 924(c) counts. The sentence totals 1,354 months.
Wells’s lengthy sentence derives primarily from certain mandatory minimum
sentences imposed in connection with his five § 924(c) convictions. See §
924(c)(1)(A)(ii) (mandating a sentence of not less than seven years “if the firearm is
brandished” during the crime of violence); § 924(c)(1)(C)(i) (mandating a sentence
of not less than twenty-five years for each “second or subsequent” § 924(c)
conviction); § 924 (c)(1)(D)(ii) (providing that “no term of imprisonment imposed
on a person under this subsection shall run concurrently”).1 The district court lacked
1
When Wells was tried, convicted, and sentenced, a defendant convicted of
numerous § 924(c) violations, even in a single multi-count indictment, faced a 25-
year mandatory minimum sentence for each second or subsequent § 924(c) violation.
See Deal v. United States, 508 U.S. 129, 132 (1993). Subsequently, in December
2018, Congress amended § 924(c) by changing the enhancement criterium from
“second or subsequent conviction under this subsection” to “violation of this
subsection that occurs after a prior conviction under this subsection has become
final.” Compare 18 U.S.C. § 924(c)(1)(C) (2006), with First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194 (2018). Although “the 25-year enhancement no
longer applies when all of a defendant’s § 924(c) convictions arise in the same
proceeding,” like in Wells’s case, we have held that “the First Step Act does not
apply [retroactively] to cases pending on appeal in which the district court sentenced
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any discretion to depart from these mandatory minimum sentences. See United
States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005) (affirming defendant’s mandatory
sentence under 18 U.S.C. § 924(c) on the basis that “the statutory minimum
sentences in § 924(c) bind the district court, not the sentencing guidelines and
enhancements”). Moreover, we have held—albeit reluctantly—that similar
sentences for similar convictions do not infringe the Eighth Amendment. See, e.g.,
United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998) (affirming sentence of
1,141 months for conviction of five counts of Hobbs Act robbery and five counts of
§ 924(c) as it was not grossly disproportionate to defendant’s crimes in contravention
of the Eighth Amendment).
While the district court was bound by the mandatory minimum sentences for
Wells’s § 924(c) convictions, the same cannot be said for Wells’s Hobbs Act robbery
convictions. “Nothing in [§ 924(c)] prevents a sentencing court from considering a
mandatory minimum under § 924(c) when calculating an appropriate sentence for
the predicate offense.” Dean v. United States, 137 S. Ct. 1170, 1178 (2017).
Although the district court had the discretion to reduce Wells’s non-mandatory
sentences to compensate for the substantial sentences mandated by his § 924(c)
convictions—and seemed inclined to do so—the district court believed that it lacked
the defendant before the enactment of the First Step Act.” United States v. Voris,
964 F.3d 864, 873–75 (9th Cir. 2020) (affirming numerous 25-year consecutive
sentences for “second or subsequent” § 924(c) convictions).
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such discretion.2 This misunderstanding constitutes procedural error. Given the
district court’s comments during Wells’s sentencing and the Government’s position
not to oppose a limited remand, we vacate Wells’s 70-month sentence for the seven
Hobbs Act robbery convictions and remand the case for resentencing on those
convictions alone. We affirm the district court in all other respects.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
2
During Wells’s sentencing, the district court expressed frustration that the lengthy
sentences it was imposing were disproportionate but that the district court was
statutorily bound to impose them. The district court also expressed that it “would
welcome the chance to resentence Mr. Wells.”
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