[DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                 FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                  ________________________  ELEVENTH CIRCUIT
                                                        JULY 20, 2011
                         No. 10-11166                    JOHN LEY
                     Non-Argument Calendar                CLERK
                   ________________________

               D.C. Docket No. 2:09-cr-14016-KMM-1

UNITED STATES OF AMERICA,

                                        llllllllllllllllllPlaintiff-Appellee,


                             versus


MICHAEL SHANE RAGLAND,

                                                    Defendant-Appellant.



                   ________________________

                         No. 10-11167
                     Non-Argument Calendar
                   ________________________

               D.C. Docket No. 2:09-cr-14016-KMM-4

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,
                                      versus


DESHAWN KENNETH JAMES,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (July 20, 2011)

Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:

      On April 30, 2009, a Southern District of Florida grand jury indicted

appellants Michael Shane Ragland and Deshawn James and four others, Mathew

Anderson, Aaron Taylor, Eliza Ramsdell, and Dewayne Mitchell, Jr., with

conspiring to and, in varying combinations, with having perpetrated or attempted

to perpetrate ten armed convenience store robberies in Martin and St. Lucie

Counties, Florida between December 11, 2007 and February 24, 2008, in violation

of the Hobbs Act, 18 U.S.C. § 1951(a). All were named as defendants in the

conspiracy charge (Count 1). Ragland as the leader and organizer of the venture



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was charged, in addition, with ten robberies (Counts 2, 4, 6, 8, 9, 11, 13, 15, 17,

19, and 21) and with brandishing a firearm, in violation of 18 U.S.C. § 924(c), in

committing the those ten robberies (Counts 3, 5, 7, 10, 12, 14, 16, 18, 20, and 22).

James, Ragland’s best friend and principal accomplice, was charged with Ragland

in Counts 13, 15, 17, 19, and 21 and Counts 14, 16, 18, 20 and 22.

      Ragland and James were arrested in Quakertown, Pennsylvania, in late

February 2008. The police caught Ragland while he was in the process of robbing

a 7-Eleven store and James and Ragland’s girlfriend, Gehret, were in the getaway

car waiting for Ragland to exit the store. Ragland and James pled guilty to the

attempted robbery, and received prison sentences; Gehret, was processed as a

juvenile. On January 12, 2009, the two officers of the Florida Department of Law

Enforcement interviewed Gehret; she confessed to having accompanied Ragland

in several of the robberies involved in the instant case and ultimately testified for

the Government at Ragland’s and James’s trial. On January 14, 2009, Ragland

gave the officers a full confession to the robberies with which he was charged in

this case.

      Anderson, Taylor, Ramsdell and Mitchell pled guilty. Ragland and James

stood trial. The jury found both of them guilty as charged, with the exception of

two counts, 13 and 14. The district court sentenced Ragland to prison for a total

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of 2,352 months and James for a total of 1,017 months. Ragland appeals his

convictions and his total sentence to the extent that it is based on consecutive

sentences imposed for his violations of 18 U.S.C. § 924(c). James appeals his

convictions.

      In their briefs on appeal, Ragland and James jointly challenge their

convictions on three grounds: (1) the district court violated the Speedy Trial Act

by granting sua sponte continuances to satisfy the ends of justice; (2) our

precedent in United States v. Le, 

, 1232 (11th Cir. 2001), sets the

wrong standard for proving an attempted Hobbs Act robbery by lowering the

burden of proof for the essential element of interference with interstate commerce;

and (3) in charging the jury on the counts alleging an attempt to violate the Hobbs

Act, the district court failed to instruct the jury regarding the interstate-nexus

element of the offense. In addition to these grounds, Ragland and James challenge

their convictions thusly: Ragland argues that the district court violated the

McNabb-Mallory Rule by denying his motion to suppress the confession he gave

to the case agent and two Assistant U.S. Attorneys on May 1, while being detained

near Ft. Pierce, Florida, pursuant to a writ of habeas corpus ad prosequendum.

James argues that the district court abused its discretion in admitting into evidence

a partial music video taken from his MySpace page in which he refers to his

                                           4
involvement in a separate armed robbery in Pennsylvania.

      Addressing his sentences under 18 U.S.C. § 924(c) for the firearm

convictions, Ragland argues that the district court infringed his rights under the

Fifth, Sixth and Eighth Amendments by imposing the sentences consecutively.

                                           I.

      We review the district court’s construction and interpretation of the Speedy

Trial Act de novo and the court’s factual determination as to what constitutes

excludable time under the Act for clear error. United States v. Dunn, 

, 1288 (11th Cir. 2003). The Speedy Trial Act mandates that a trial

commence within 70 days after the date the defendant appeared before a judicial

officer or the date of the indictment, whichever occurs later. 18 U.S.C.

§ 3161(c)(1). Section 3161(h)(7) permits exclusions for:

      Any period of delay resulting from a continuance granted by any judge
      on his own motion . . . if the judge granted such continuance on the basis
      of his findings that the ends of justice served by taking such action
      outweigh the best interest of the public and the defendant in a speedy
      trial. No such period of delay resulting from a continuance granted by
      the court in accordance with this paragraph shall be excludable under
      this subsection unless the court sets forth, in the record of the case,
      either orally or in writing, its reasons for finding that the ends of justice
      served by the granting of such continuance outweigh the best interests
      of the public and the defendant in a speedy trial.

18 U.S.C. § 3161(h)(7)(A). Section 3161(h)(7)(b) lists the factors, among others,



                                           5
the district court must consider in determining whether to grant a continuance:

      (i) Whether the failure to grant such a continuance in the proceeding
      would be likely to make a continuation of such proceeding
      impossible, or result in a miscarriage of justice.
      (ii) Whether the case is so unusual or so complex, due to the number
      of defendants, the nature of the prosecution, or the existence of novel
      questions of fact or law, that it is unreasonable to expect adequate
      preparation for pretrial proceedings or for the trial itself within the
      time limits established by this section.
      ....
      (iv) Whether the failure to grant such a continuance in a case which,
      taken as a whole, is not so unusual or so complex as to fall within
      clause (ii), would deny the defendant reasonable time to obtain
      counsel, would unreasonably deny the defendant or the Government
      continuity of counsel, or would deny counsel for the defendant or the
      attorney for the Government the reasonable time necessary for
      effective preparation, taking into account the exercise of due
      diligence.


The Act adds that no ends-of-justice continuance “shall be granted because of

general congestion of the court’s calendar, or lack of diligent preparation or failure

to obtain available witnesses on the part of the attorney for the Government.” 

      In Zedner v. United States, 

, 506-07 & n.7, 

,

1989 & n.7, 

(2006), the Supreme Court held that a court must put

its findings regarding an ends-of-justice continuance on the record at least by the

time the court rules on the defendant’s motion to dismiss for a speedy trial



                                          6
violation, although the best practice is to state the reasons when granting the

continuance. The Court also rejected a harmless-error analysis for a court’s failure

to express its findings on the record because Congress “saw a danger that such

continuances could get out of hand and subvert the Act’s detailed scheme.” 

126 S.Ct. at 1990.

      The district court did not violate the Speedy Trial Act by issuing three

sua sponte continuances in the interests of justice. The court had the authority to

issue the continuances pursuant to 18 U.S.C. § 3161(h)(7) and timely and

adequately explained its reasons for the continuances on the record.

                                         II.

      We review the constitutionality of a statute de novo. United States v.

Sanchez, 

, 932 (11th Cir. 2009), cert. denied, 

(2010).

The Hobbs Act prohibits robbery, and an attempt or conspiracy to commit robbery,

that affects interstate commerce. United States v. Orisnord, 

, 1177

(11th Cir. 2007). “Because the Hobbs Act, by its own terms, encompasses the

inchoate offenses of attempt and conspiracy, the interstate nexus required to prove

a Hobbs Act conspiracy may be established upon evidence that had the

conspiratorial objective been accomplished, interstate commerce would have been

affected.” 

original) (citing 

). Furthermore,

                                          7
“the government need only show a realistic probability of an effect” on interstate

commerce. United States v. Kaplan, 

, 1354 (11th Cir.1999).

      This precedent forecloses Ragland’s and James’s argument that the Hobbs

Act violates a defendant’s right to have every element of the offense proved

beyond a reasonable doubt; the government need only show a realistic probability

of an effect on interstate commerce for attempted Hobbs Act robbery charges.

                                          III.

      We review de novo the district court’s jury instructions “to determine whether

they misstate the law or mislead the jury to the objecting party’s prejudice.” United

States v. Gomez, 

, 1233 (11th Cir. 2009). We review a district court’s

failure to instruct the jury on all of the statutory elements of an offense for harmless

error. 

to instruct a jury on an essential element of an offense is

harmless when it is clear beyond a reasonable doubt that a rational jury would have

found the defendant guilty absent the error.” 

internal quotations

omitted).

      The Hobbs Act requires the government to prove beyond a reasonable doubt

that a defendant obstructed or affected interstate commerce by robbery, or

conspired or attempted to do so. 18 U.S.C. § 1951. Robbery “is undeniably an

economic crime,” whose relationship to “commerce is clear, direct, and

                                           8
unattentuated.” United States v. Gray, 

, 1274 (11th Cir. 2001). The

type of evidence needed to satisfy the government’s burden of proof concerning

the interstate commerce nexus under the Hobbs Act differs depending on whether

the defendant is charged with an inchoate offense, conspiracy or attempt, on one

hand, or a completed substantive offense on the other. 

.

“Where a defendant is charged with attempt or conspiracy 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.’” 

original). “[T]he government need only show a realistic probability of an

effect” on interstate commerce. 

.

      The district court failed to instruct the jury on the interstate-commerce

element of the attempted Hobbs Act robbery charge, but the error was harmless in

light of the similar nature between the act of robbery and the attempted act

robbery.

                                         IV.

      Because rulings on motions to suppress evidence involve mixed questions

of law and fact, we review the district court’s factual findings for clear error and

its application of the law to those facts de novo. United States v. Burgest, 

, 1309 (11th Cir. 2008). When considering a ruling on a motion to

                                          9
suppress, we construe all facts in the light most favorable to the prevailing party.

court has the authority to issue a writ of habeas corpus ad

prosequendum pursuant to 28 U.S.C. § 2241. United States v. Mauro, 

, 357-58, 

, 1846, 

(1978). A writ of habeas

corpus ad prosequendum is used to secure the presence of a defendant in federal

or state custody for the trial of a federal offense. 

98 S.Ct. at 1846.

      The McNabb-Mallory Rule “generally renders inadmissible confessions

made during periods of detention that violate the prompt presentment requirement

of Rule 5(a).” Corley v. United States, 556 U.S.       ,    , 

, 1563,

(2009) (alterations omitted). Congress codified the

McNabb-Mallory Rule in 18 U.S.C. § 3501(c), which states:

      In any criminal prosecution by the United States or by the District of
      Columbia, a confession made or given by a person who is a defendant
      therein, while such person was under arrest or other detention in the
      custody of any law-enforcement officer or law-enforcement agency,
      shall not be inadmissible solely because of delay in bringing such person
      before a magistrate judge or other officer empowered to commit persons
      charged with offenses against the laws of the United States . . . if such
      confession is found by the trial judge to have been made voluntarily and
      if the weight to be given the confession is left to the jury and if such
      confession was made or given by such person within six hours
      immediately following his arrest or other detention: Provided, That the
      time limitation contained in this subsection shall not apply in any case
      in which the delay in bringing such person before such magistrate judge

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      or other officer beyond such six-hour period is found by the trial judge
      to be reasonable considering the means of transportation and the
      distance to be traveled to the nearest available such magistrate judge or
      other officer.

18 U.S.C. § 3501(c); see Corley, 556 U.S. at       , 129 S.Ct. at 1571 (holding that

§ 3501(c) modified, but did not eliminate, the McNabb-Mallory Rule).

      Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure, relating to the

initial appearance of defendants before a court, requires that “[a] person making an

arrest within the United States must take the defendant without unnecessary delay

before a magistrate judge, or before a state or local judicial officer as Rule 5(c)

provides, unless a statute provides otherwise.” Fed. R. Civ. P. 5(a)(1). Rule 5(c)

provides the procedure for an arrest occurring in a district other than the one

where the offense occurred.

      Rule 40 of the Federal Rules of Criminal Procedure requires that:

      A person must be taken without unnecessary delay before a magistrate
      judge in the district of arrest if the person has been arrested under a
      warrant issued in another district for:

             (i) failing to appear as required by the terms of that person’s
             release under 18 U.S.C. §§ 3141-3156 or by a subpoena; or

             (ii) violating conditions of release set in another district

      Because the admission of statements Ragland made during a custodial

interrogation while subject to a writ of habeas corpus ad prosequendum was

                                          11
harmless beyond a reasonable doubt—the statements merely reiterated the

confession he gave in Pennsylvania on January 14, 2009—we affirm as to this

issue.

                                           V.

         We review de novo the district court’s interpretation of a statute. United

States v. Segarra, 

, 1271 (11th Cir. 2009), cert. denied, 

(2010). Likewise, we review challenges to the constitutionality of a sentence

de novo. See 

. We review de novo whether counts in an

indictment were multiplicitous. United States v. Jones, 

, 1258 (11th

Cir. 2010).

         Section 924(c)(1)(A) of Title 18 of the United States Code provides:

           Except to the extent that a greater minimum sentence is otherwise
           provided by this subsection or by any other provision of law, any
           person who, during and in relation to any crime of violence or drug
           trafficking crime (including a crime of violence or drug trafficking
           crime that provides for an enhanced punishment if committed by
           the use of a deadly or dangerous weapon or device) for which the
           person may be prosecuted in a court of the United States, uses or
           carries a firearm, or who, in furtherance of any such crime,
           possesses a firearm, shall, in addition to the punishment provided
           for such crime of violence or drug trafficking crime—

           (i) be sentenced to a term of imprisonment of not less than 5 years.
           ...

         In Segarra, we rejected the defendant’s argument that the “except” clause in

                                            12
§ 924(c) meant that if his mandatory minimum sentence for his drug offense was

greater than the mandatory minimum for the firearm offense, the two sentences

could not run consecutively. 

. In United States v.

Tate, 

, 947-48 (11th Cir. 2009), cert. denied, 

(2010),

we extended our holding in Segarra, ruling that the “except” clause does not

preclude consecutive minimum mandatory sentences for multiple counts of

carrying a firearm during and in connection with a crime of violence.

      Since Ragland briefed the present case, the Supreme Court resolved the

circuit split consistent with our opinion in Segarra. In Abbott v. United States,

562 U.S. ___, ___, 

, 23, 

(2010), the Supreme Court

held that “a defendant is subject to a mandatory, consecutive sentence for a

§ 924(c) conviction, and is not spared from that sentence by virtue of receiving a

higher mandatory minimum on a different count of conviction.” The Court also

rejected the argument that the rule of lenity applied to the “except” clause. Abbott,

562 U.S. at ___, 131 S.Ct. at 18 n.9.

      Successful challenges to the proportionality of a noncapital sentence under

the Eighth Amendment are extremely rare because we accord substantial deference

to Congress’s broad authority to determine the types and limits of punishments.

United States v. Raad, 

, 1323 (11th Cir. 2005). “In general, a

                                         13
sentence within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment.” United States v. Johnson, 

,

1243 (11th Cir. 2006) (citation omitted). “Moreover, a sentence which is not

otherwise cruel and unusual does not become so simply because it is mandatory.”

(alterations and quotations omitted).

      The test for multiplicity is whether “each count requires an element of proof

that the other counts do not require.” 

. The issue of

whether Ragland’s conduct involving firearms constituted one continuous offense

rather than separate offenses is a question requiring legal analysis better suited to a

court’s determination. See United States v. Sirang, 

, 595-96 (11th Cir.

1995) (holding that legal analysis was necessary for review of the defendant’s

multiplicity argument because of the “difficult conceptual questions” in

determining, in a bank fraud case, whether transactions constituted the execution

of a scheme or a component of the execution).

      Under the Fifth Amendment, where the statute at issue “does not

discriminate on the basis of a suspect classification or the exercise of a

fundamental right,” the appropriate standard of review for an equal protection

claim is the rational basis test. United States v. Solomon, 

, 157 (11th

Cir. 1988). “To pass the rational basis test, the legislation must have a legitimate

                                          14
purpose, and it must have been reasonable for lawmakers to believe that the use of

the challenged classification would promote that purpose.” United States v. King,

, 1260 (11th Cir. 1992).

      Ragland’s § 924(c) consecutive sentences are proper in light of Abbott and

do not violate the constitutional provisions Ragland relies on.


                                          VI.

      We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Edouard, 

, 1343 (11th Cir. 2007). However, where

the defendant failed to object to the admission of evidence at trial, we review the

admission of the evidence only for plain error. 

the plain-error test,

the defendant must show that (1) an error occurred, (2) the error was plain, and

(3) the error affected the defendant’s substantial rights. 

n.7. If those

three criteria are met, we may reverse if the plain error seriously affects “the

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

      Federal Rule of Evidence 403 provides that, “[a]lthough relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice . . . .” In interpreting Rule 403, we have described it as having a



                                          15
“strong presumption in favor of admissibility . . . .” United States v. Church, 

, 703 (11th Cir. 1992). Accordingly, excluding evidence under Rule 403

is an “extraordinary remedy which should be used only sparingly since it permits

the trial court to exclude concededly probative evidence.” 

(citation and

internal quotations omitted). Consequently, “[o]nly if the decision to admit

evidence over a Rule 403 challenge is unsupportable when the evidence is viewed

in the light most supportive of the decision will we say that the decision

constitutes an abuse of discretion.” United States v. Jernigan, 

,

1285 (11th Cir. 2003). As part of this review, “we look at the evidence in a light

most favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” 

(citation omitted).

      Under Federal Rule of Evidence 404, evidence of uncharged criminal

activities generally is considered inadmissible, extrinsic evidence. However,

evidence of criminal activity other than the charged offenses is not “extrinsic,”

and, thus, falls outside the scope of Rule 404(b), if it is “(1) an uncharged offense

which arose out of the same transaction or series of transactions as the charged

offense, (2) necessary to complete the story of the crime, or (3) inextricably

intertwined with the evidence regarding the charged offense.” 

(quotation omitted). Such evidence, even if outside the scope of Rule

                                          16
404(b), must still satisfy the requirements of Rule 403. 

no merit in James’s argument that the court abused its discretion

under Rule 403, or committed plain error under Rule 404(b), in admitting into

evidence the partial music video taken from his MySpace page.

                                        VII.

      We have carefully considered the arguments Ragland and James have

presented. We find no basis for setting aside their convictions or for disturbing

Ragland’s sentences.

      AFFIRMED.




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