Case: 14-14927   Date Filed: 09/15/2015   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14927
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20305-JAL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DERRIN MACK,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (September 15, 2015)

Before MARCUS, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Derrin Dion Mack pled guilty to one count of attempting to violate the

Hobbs Act, 18 U.S.C. § 1951(a), and one count of brandishing a firearm in

furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). The district court

sentenced him to 15 months’ imprisonment on the attempted Hobbs Act count and

84 months’ imprisonment on the § 924(c)(1)(A) count, with the sentences to run

consecutively. On appeal, Mr. Mack challenges the constitutionality of the Hobbs

Act as applied to his offense as well as the procedural and substantive

reasonableness of his sentence. After careful consideration, we affirm the

judgment of the district court.

                                           I.

      Mr. Mack worked at a Little Caesar’s Pizza restaurant in Miami, Florida.

On the morning of August 28, 2011, as Mr. Mack was opening the restaurant with

a manager, Rasad Davis entered the restaurant and held the manager at gunpoint.

Mr. Davis made the manager and Mr. Mack lie on the ground and then instructed

the manager to open the restaurant’s safes. The manager tried to open the safes,

but explained that because the safes were on a ten-minute delay, they would not

open immediately. Upon hearing the click of a firearm, Mr. Mack confirmed to

Mr. Davis that there was a delay on the safes. In the meantime, an anonymous

caller had reported the robbery to 911. Upon seeing police arrive, Mr. Davis fled

the restaurant before the safes had opened and was apprehended.


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      Police interviewed Mr. Mack as a part of their investigation of the attempted

robbery. Mr. Mack confessed that he had planned the robbery with Mr. Davis and

shared with him information about the restaurant, including the location of the

safes and that there would be approximately $1,500 in the safes. Mr. Mack also

admitted that he told Mr. Davis where to stand when approaching the manager and

conducting the robbery. Mr. Mack was to receive $600 for his assistance in

planning and executing the robbery.

      Pursuant to a plea agreement, Mr. Mack pled guilty to attempting to commit

a Hobbs Act robbery and to brandishing a firearm during a crime of violence. The

brandishing-a-firearm count carried a seven year mandatory minimum sentence to

run consecutively to any other sentence. See 18 U.S.C. § 924(c)(1)(A)(ii). In the

plea agreement, the government agreed to recommend a term of imprisonment of

seven years and one day. Under this recommendation, Mr. Mack would serve

seven years for brandishing a firearm during a crime of violence and one day for

attempting to commit a Hobbs Act robbery. Mr. Mack acknowledged in the plea

agreement, however, that this recommendation did not bind the district court.

      At sentencing, the district court calculated Mr. Mack’s guideline range for

attempting to commit a Hobbs Act robbery as 24 to 30 months. The district court

then considered whether to grant the variance recommended by the government

pursuant to the plea agreement and impose a one-day sentence for this count. The


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district court determined that the variance was inappropriate and instead imposed a

15 month sentence for the attempted Hobbs Act robbery, which would run

consecutively to the 84 month sentence for brandishing a firearm during a crime of

violence. Mr. Mack’s total sentence was 99 months, to which he did not object at

sentencing.

       Mr. Mack’s counsel did not timely appeal his sentence. Mr. Mack

subsequently sought relief pro se under 28 U.S.C. § 2225 because he had wanted to

appeal his sentence despite his counsel’s failure to do so. Finding Mr. Mack’s

counsel rendered ineffective assistance in failing to file a requested direct appeal,

the district court granted in part Mr. Mack’s petition so that he could file a direct

appeal pursuant to the procedure set forth in United States v. Phillips, 

(11th Cir. 2000). 1 After vacating its judgment, the district court resentenced

Mr. Mack and imposed the same sentence. At the resentencing, Mr. Mack

objected that at the prior sentencing, the district court had failed to consider fully

the § 3553 factors and erred in applying and calculating the guidelines range. Mr.

Mack filed a timely appeal.

                                                II.



       1
          Under Phillips, when a district court concludes that an out-of-time appeal in a criminal
case is warranted as the remedy in a § 2255 proceeding, the district court must vacate the
criminal judgment, convene a resentencing and impose the same sentence, advise the defendant
of all the rights associated with an appeal from any criminal sentence, and notify the defendant
of the deadline for filing an appeal from the reimposed 

.
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       Mr. Mack argues that his conviction for an attempted Hobbs Act robbery

was an unconstitutional application of the Commerce Clause because the robbery

did not have a sufficient connection to interstate commerce. Because Mr. Mack

challenges the constitutionality of the Hobbs Act as applied in his case for the first

time on appeal, our review is for plain error. United States v. Wright, 

, 715 (11th Cir. 2010). “Plain error occurs if (1) there was error, (2) that was

plain, (3) that affected the defendant’s substantial rights, and (4) that seriously

affected the fairness, integrity, or public reputation of judicial proceedings.” 

marks omitted). An error is plain if it is clear or obvious.

United States v. Olano, 

, 734 (1993). We have explained that “where

the explicit language of a statute or rule does not specifically resolve an issue, there

can be no plain error where there is no precedent from the Supreme Court or this

Court directly resolving it.” United States v. Chau, 

, 1322 (11th Cir.

2005) (internal quotation marks omitted).

       The Hobbs Act makes it a federal crime to obstruct, delay, or affect

interstate commerce by robbery, or to attempt or conspire to do so. 18 U.S.C.

§ 1951(a) (“Whoever in any way or degree obstructs, delays, or affects commerce

. . . by robbery . . . or attempts or conspires so to do . . . shall be . . . imprisoned

. . . .”). To obtain a conviction for an attempted Hobbs Act robbery, the




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government must show that (1) the defendant attempted a robbery and (2) the

robbery affected interstate commerce. 

that a defendant affected commerce, the government only needs to

show a “minimal effect on interstate commerce.” United States v. Ransfer,

, 936 (11th Cir. 2014) (internal quotation marks omitted). “A mere

depletion of assets is sufficient” to meet the minimal effects test. United States v.

Dean, 

, 1228 (11th Cir. 2008). Thus, we have held that there was a

minimal effect on interstate commerce when a store regularly purchased goods that

had travelled in interstate commerce, was robbed, and was closed for a few hours

as a result of the robbery. 

. There was also a minimal

effect on interstate commerce when a store that had branches in other states and

was open to out-of-state customers was robbed. 

. When a

defendant is charged with an attempt to violate the Hobbs Act, “the interstate

nexus may be demonstrated by evidence of potential impact on interstate

commerce or by evidence of actual, de minimis impact.” United States v. Kaplan,

, 1354 (11th Cir. 1999) (en banc) (internal quotation marks omitted).

      Here, we find no plain error. Because the attempted robbery had the

potential to impact interstate commerce, there was an interstate nexus. If the

robbery had been successful, Mr. Mack and Mr. Davis would have stolen money

from a restaurant that was part of a national chain and regularly purchased goods


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that travelled in interstate commerce. In other words, the robbery had the potential

to cause a depletion of assets, and we conclude that this offense is analogous to

other robberies that satisfied the minimal effects test under our case law. See

; 

. Indeed, Mr. Mack does not

argue that his offense is distinct from those we have held to violate the Hobbs Act;

rather, he argues that we have unconstitutionally broadened the Act’s application,

such that we should divert from our precedent in his case. But absent direction

from the Supreme Court or this Court sitting en banc, we are bound by our own

precedent. United States v. Kaley, 

, 1255 (11th Cir. 2009).

      In any event, even if Mr. Mack could show that the attempted robbery did

not have the potential to minimally affect interstate commerce, he could not show

plain error because there is no case from the Supreme Court or this Court directly

resolving the issue in his favor. Without contravening authority, any error cannot

be plain. 

.

                                         III.

      Mr. Mack also challenges the procedural and substantive reasonableness of

his sentence. We review the reasonableness of a sentence under an abuse of

discretion standard. United States v. Dupreval, 

, 1331 (11th Cir.

2015). But when a defendant objects to the procedural reasonableness of his

sentence for the first time on appeal, we review for plain error. United States v.


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Vandergrift, 

, 1307 (11th Cir. 2014). We have not previously

addressed in a published opinion whether when a defendant objects to the

procedural reasonableness of his sentence for the first time at a Philips hearing, an

abuse of discretion or plain error standard applies. But we need not resolve that

question today because Mr. Mack has failed to meet either standard.

      The reasonableness of a sentence generally is reviewed through a two-step

process. United States v. Pugh, 

, 1190 (11th Cir. 2008). The first

step is to “ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” 

marks omitted). In its

application of the § 3553(a) factors, the district court need not explicitly discuss on

the record each factor, or state on the record that it has considered each factor;

rather, it is “sufficient that the district court considers the defendant’s arguments at

sentencing and states that it has taken the § 3553(a) factors into account.” United

States v. Sanchez, 

, 936 (11th Cir. 2009).

      If we conclude the sentence was procedurally reasonable, we will review the

sentence for substantive reasonableness. 

. When reviewing

a sentence for substantive reasonableness, we “take into account the totality of the


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circumstances, including the extent of any variance from the Guidelines range.”

Gall v. United States, 

, 51 (2007). We will overturn a sentence only if

we are “left with the definite and firm conviction that the district court committed a

clear error of judgment” by imposing a sentence “that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).

      A district court’s sentence is unreasonable when it “(1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors” by balancing them unreasonably.

(internal quotation marks omitted). When a district court imposes a

sentence outside the guidelines range, we must give “due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” 

. And, of course, we must keep in mind that “[t]he

fact that [we] might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” 

Mack challenges the district court’s imposition of a 15-month

sentence for the attempted Hobbs Act robbery. The record shows that the sentence

was procedurally reasonable. The district court correctly calculated the guidelines

range, appropriately considered the 18 U.S.C. § 3553(a) factors, and explained


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how it was doing so. Mr. Mack argues that the district court was required to

explain why the government’s recommended sentence would not reflect the

considerations of the § 3553(a) factors, but we disagree. Because the district court

acknowledged that it considered Mr. Mack’s arguments and the § 3553(a) factors,

the sentence is procedurally reasonable. 

.

      We also reject Mr. Mack’s argument that the sentence was substantively

unreasonable. The district court considered that Mr. Mack had no prior criminal

history and the fact that when he heard Mr. Davis’s gun click, Mr. Mack confirmed

that the safes were on a timer, which may have kept Mr. Davis from shooting the

restaurant’s manager. He also cooperated with authorities. But the district court

also considered aggravating factors related to the nature and circumstances of the

offense and the history and characteristics of the defendant: Mr. Mack provided

Mr. Davis with the information necessary to rob the restaurant, including where the

safes were located, the amount of money kept in the safes, and how Davis should

approach the manager and conduct the robbery. Considering this evidence, we are

not left with a “definite and firm conviction that the district court committed a

clear error of judgment” when it varied downward from the guidelines range but

imposed a sentence longer than one day for the attempted Hobbs Act violation.

.

                                         IV.


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We affirm the judgment of the district court.

AFFIRMED.




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