Filed: Sep. 09, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4847 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KEVIN STEVENS, JR., Defendant – Appellant. No. 12-4862 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. XAVIER HOLLEY, Defendant – Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, Chief District Judge. (2:11-cr-00073-RBS-LRL-2; 2:11-cr-00073-RBS- LRL-3) Submitted: August 29, 2013 Decided:
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4847 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KEVIN STEVENS, JR., Defendant – Appellant. No. 12-4862 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. XAVIER HOLLEY, Defendant – Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, Chief District Judge. (2:11-cr-00073-RBS-LRL-2; 2:11-cr-00073-RBS- LRL-3) Submitted: August 29, 2013 Decided: S..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4847
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN STEVENS, JR.,
Defendant – Appellant.
No. 12-4862
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
XAVIER HOLLEY,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:11-cr-00073-RBS-LRL-2; 2:11-cr-00073-RBS-
LRL-3)
Submitted: August 29, 2013 Decided: September 9, 2013
Before SHEDD, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Emily M. Munn, LAW OFFICE OF EMILY MUNN, Norfolk, Virginia, for
Appellant Kevin Stevens, Jr. Andrew A. Protogyrou, PROTOGYROU &
RIGNEY, P.L.C., Norfolk, Virginia, for Appellant Xavier Holley.
Neil H. MacBride, United States Attorney, Alexandria, Virginia;
Benjamin L. Hatch, V. Kathleen Dougherty, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia; Emily C. Whitaker, Law Student, COLLEGE OF WILLIAM &
MARY, Williamsburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On October 6, 2010, Robert Nelson, an employee of a pawn
shop in Portsmouth, Virginia, was shot and killed during an
attempted robbery. Following an investigation, law enforcement
officers determined that Kevin Stevens, Jr., Xavier Holley, and
others were involved in the attempted robbery. As a result, a
federal grand jury indicted Stevens and Holley for conspiracy to
interfere with commerce by robbery, in violation of the Hobbs
Act, 18 U.S.C. § 1951 (Count One); attempt to interfere with
commerce by robbery, in violation of the Hobbs Act and 18 U.S.C.
§ 2 (Counts Two and Four); using and carrying a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. §§ 924(c)(1)(A) and 2 (Count Three); and using and
carrying a firearm during and in relation to a crime of violence
causing death, in violation of 18 U.S.C. §§ 924(c)(1)(A),
(j)(1), and 2 (Count Five).
At trial, the government presented evidence tending to
establish, among other things, that the robbery was originally
planned for October 5, 2010, but that Stevens (who was armed
with Holley’s gun) and another participant who entered the pawn
shop with him became fearful and, thus, failed to commit the
robbery. The evidence further tended to establish that on
October 6, Stevens shot Nelson with Holley’s gun during the
course of the attempted robbery, and Holley waited nearby in the
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getaway car to assist after the robbery. The jury convicted both
defendants on all counts, and the district court sentenced them
to a term of life imprisonment on Count 5; concurrent terms of
240 months on Counts 1, 2, and 4; and a consecutive term of 60
months on Count 3. They now raise several issues on appeal. We
affirm.
Stevens and Holley argue that the attempted robbery of a
local pawn shop has no impact on interstate commerce and,
therefore, this case does not fall within the scope of the Hobbs
Act. We find no merit to this contention. As we recently
reiterated, the Hobbs Act’s “jurisdictional predicate is
satisfied where the instant offense has a ‘minimal effect’ on
interstate commerce.” United States v. Tillery, 702 F.3d 170,
174 (4th Cir. 2012), cert. denied,
133 S. Ct. 2369 (2013). 1 For
purposes of the Hobbs Act, a robbery “has a minimal effect on
interstate commerce when it depletes the assets of an inherently
economic enterprise,” and in making this determination, “we do
not look at the impact of the immediate offense, but whether the
relevant class of acts has such an impact.”
Id. (internal
1
In pertinent part, the Hobbs Act provides: “Whoever in any
way or degree obstructs, delays, or affects commerce . . . by
robbery . . . or attempts or conspires so to do, or commits or
threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of
this section shall be fined under this title or imprisoned not
more than twenty years, or both.” 18 U.S.C. § 1951(a).
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punctuation altered). Applying this standard, we easily conclude
that the indictment properly charged Hobbs Act violations, and
the government presented sufficient evidence at trial to
establish the Hobbs Act jurisdictional predicate. 2
Next, Holley contends that the district court erred by not
dismissing the indictment against him or, alternatively, by not
suppressing incriminating statements he made. After holding a
hearing on this matter, the district court issued a thorough
order explaining the reasons for denying Holley’s motion. See
United States v. Holley, 849 F. Supp. 2d 622 (E.D. Va. 2012).
Stated succinctly, the court rejected Holley’s arguments, which
he reiterates on appeal, that the government offered him
transactional immunity during its investigation, the proffer
letter he signed is an illusory promise and thus should be
substituted for transactional immunity, and the government
improperly obtained statements from him through coercion. We
have carefully reviewed the court’s underlying legal rulings de
novo and its factual findings for clear error, and we are
2
We find Stevens’ and Holley’s reliance on United States v.
Lopez, 514 U.S. 549 (1995), to be without merit. See United
States v. Williams,
342 F.3d 350, 354 (4th Cir. 2003)
(reaffirming the minimal effect standard after Lopez). We also
reject their argument that the Hobbs Act is not implicated
because their crime was directed at an individual (the pawn shop
employee).
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satisfied that Holley has failed to establish entitlement to
relief on these grounds.
Finally, relying primarily on issues involving witness
credibility, Holley argues that the evidence is insufficient to
sustain the verdicts against him. As he explains: “The
government’s claims against [him] are based in large part upon
the contradictory, impeached, and inherently unreliable
testimony of incarcerated co-conspirators, all of whom are
hoping to receive lenient treatment in exchange for their
testimony. . . . Evidence from such sources would not be able to
sway the mind of a reasonably prudent fact finder and
convictions contrary to this should be overturned.” Brief of
Appellants, at 17-18. We find that the government presented more
than sufficient evidence to sustain Holley’s convictions. See
generally United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.
1996) (en banc) (setting forth the standard of review and
explaining that the jury’s credibility determinations are not
susceptible to judicial review).
Based on the foregoing, we affirm the convictions. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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