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United States v. Tillery, No.11-4819

Decided: December 19, 2012

On appeal, Carter Tillery challenged his convictions for a “Hobbs Act” robbery in violation of 18 U.S.C.§1951(a) and for using, carrying, and brandishing a firearm during a violent crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Tillery also challenged his sentence of 360 months’ imprisonment, arguing that he was incorrectly sentenced as a “career offender.” The Court of Appeals affirmed both Tillery’s convictions and sentence.

On August 1, 2009, an unmasked man robbed the Petersburg, Virginia branch of the Swan Dry Cleaners (the “Cleaners”) at gunpoint. The robber stole a personal computer from an employee and emptied $40-$100 from the cash register. The robber then tied the employee up in the back of the store. After a few minutes, the robber then went to the front of the store and returned to the back wearing a ski mask. Finally, the robber fled the store after telling the employee to count to 100 before calling the police. A few weeks after the robbery, a man sold a personal computer for $150 to the owner of a barbershop located next to the Cleaners. The police discovered that the computer sold at the barbershop was the same one stolen from the Cleaners’ employee. The police then showed the Cleaners’ employee photographs of potential suspects, and the employee identified Tillery as the robber. In June 2010, while incarcerated for unrelated charges, Tillery confessed to his cellmate that he had committed the Cleaners robbery and had later sold the laptop at the barbershop. Tillery also told his cellmate that he had used a sawed-off shotgun in the robbery. Based on this information, a grand jury indicted Tillery on two counts: (1) a Hobbs Act robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a); and (2) using, carrying, and possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). A jury convicted Tillery of both crimes, and he was sentenced to a total of 360 months’ imprisonment. Tillery then filed a timely appeal challenging his convictions and sentence.

The court first explained that a robbery must have a “minimal effect” on interstate commerce to violate the Hobbs Act. Tilley argued that his robbery did not have a “minimal effect” on interstate commerce because he only stole $40-$100. The court rejected this argument and explained that a robbery has a “minimal effect” on interstate commerce when it depletes the assets of an “inherently economic enterprise.” The court found that the Cleaners was an “inherently economic enterprise” because it was a part of a larger network of dry cleaners that depended on out-of-state purchases to fund its business. Thus, since the Cleaners was an “inherently economic enterprise,” the court held that Tillery violated the Hobbs Act by taking $40-$100.

Finally, Tillery argued that he was improperly sentenced as a “career offender” under the United States Sentencing Commission Guidelines § 4B1.1(a). Under §4B1.1(a), a defendant is a “career offender” if, among other things, he has at least two prior felony convictions for “violent crimes.” The district court found that Tillery’s conviction of eluding police constituted a violent crime, but Tillery argued on appeal that eluding police does not constitute a violent crime. The court rejected Tillery’s argument and explained its decision U.S. v. Hudson clearly stated that vehicular flight in any manner constitutes a violent crime. The court noted that the risk of violence is inherent to any vehicular flight from police. Therefore, the court upheld Tillery’s sentence.

Full Opinion

-Graham Mitchell