UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5229

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JUSTIN TAPP,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, Senior

District Judge. (1:06-cr-00157-CMH)

Submitted: October 29, 2007 Decided: November 21, 2007

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Bryan Saunders, Newport News, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Kelli H. Ferry, Assistant United

States Attorney, Michael J. Frank, Special Assistant United States

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Justin Tapp was charged in a four-count indictment with:

(1) conspiracy to distribute five grams or more of crack cocaine,

21 U.S.C. § 846 (2000) (Count One); (2) using or carrying a firearm

during or in relation to a drug trafficking crime, 18 U.S.C.A.

§ 924(c) (West 2000 & Supp. 2007) (Count Two); (3) robbery

affecting interstate commerce (“Hobbs Act”), 18 U.S.C. § 1951

(2000) (Count Three); and (4) using or carrying a firearm during a

crime of violence, 18 U.S.C.A. § 924(c) (Count Four). He was

convicted of all four counts following a bench trial and sentenced

as follows: sixty months imprisonment on Count One; eighty-four

months on Count Two, consecutive to Count One; sixty months on

Count Three to run concurrently with Count One; and twenty-five

years on Count Four to run consecutively to the sentences on Counts

One and Two, for a total of thirty-seven years imprisonment.

Counsel has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious issues for appeal but raising the following potential

issues: (1) whether the evidence was sufficient to support Tapp’s

convictions; (2) whether the district court plainly erred at

sentencing by failing to ascertain that Tapp and his attorney had

reviewed the presentence report and by failing to advise Tapp of

his right to appeal; (3) whether there was sufficient nexus with

interstate commerce to establish federal jurisdiction; and (4)
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whether consecutive sentences under § 924(c) violate the Double

Jeopardy clause. Tapp has filed a pro se supplemental brief also

challenging the sufficiency of the evidence. We affirm.

The evidence presented at Tapp’s trial, viewed in the

light most favorable to the Government, see United States v.

Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.

Tapp met Robert Leggat in early September 2005 in Fairfax County,

Virginia. On September 13, Leggat invited Tapp to his friend

Colleen McCartney’s house--also in Fairfax--for a party. Tapp

brought crack cocaine to the party that he had obtained earlier

that day from Chase Wilson and “Suave” in Washington, D.C. Over

the next few days, Tapp returned to D.C. at least twice to obtain

more crack from Wilson and “Suave” which he, in turn, supplied to

McCartney and Leggat. 

On September 17, Tapp returned to D.C. to obtain more

crack from Wilson and Suave. However, Wilson and Suave became

upset because Tapp had yet to pay for the crack cocaine they had

supplied to him and they demanded to know to whom Tapp had

distributed the crack. The three--Tapp, Wilson, and Suave--then

drove to McCartney’s home in Fairfax, hoping to collect the money

that she owed to Tapp. When they arrived at her home, they found

Robert McGhee in one of the bedrooms. While either Wilson or Suave

held a gun to McGhee’s head, Tapp used a knife to cut McGhee’s hair

and scalp, ultimately taking a small amount of cash and crack
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cocaine from him. We find that this evidence was sufficient to

support Tapp’s convictions as to all counts. 

Next, counsel questions whether the district court

plainly erred in failing to advise Tapp of his right to appeal and

in failing to ascertain that he and his attorney had reviewed the

presentence report, as required by Fed. R. Crim. P. 32. Any

failure by the district court to advise Tapp of his right to appeal

is clearly harmless as his attorney timely filed a notice of

appeal. See Peguero v. United States, 526 U.S. 23 (1999) (holding

that a defendant who had independent knowledge of his right to

appeal was not prejudiced by a court’s failure to advise him of

that right). 

Rule 32(i)(1)(A), Fed. R. Crim. P., requires the district

court to determine that the defendant and counsel have read and

discussed the presentence report prior to sentencing. See United

States v. Miller, 849 F.2d 896, 897-98 (4th Cir. 1988). This court

has not imposed upon district courts a “particular methodology for

compliance with Rule [32(i)(1)(A)].” United States v. McManus, 23

F.3d 878, 884 (4th Cir. 1994). Thus, the court need not expressly

ask whether the report has been read and discussed, as long as it

can be inferred from the record that the required discussion has

occurred. United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.

1995). Although the district court did not expressly ascertain at

sentencing that Tapp had reviewed the presentence report with his
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attorney, it is clear from the transcript of the proceedings that

Tapp and his attorney had in fact reviewed--and discussed--the

presentence report. Therefore, the district court did not clearly

err in failing to specifically ascertain that Tapp had reviewed the

presentence report with his attorney. 

Tapp also argues that the theft of a relatively small

quantity of crack cocaine and cash that was taken from McGhee, “can

not be reasonably said to have an effect on commerce.” Because we

have held that the Hobbs Act interstate commerce element is

“satisfied even where the effect on interstate commerce is

indirect, minimal, and less than certain,” United States v. Buffey,

899 F.2d 1402, 1404 (4th Cir. 1990), this claim fails as well.

Finally, counsel addresses whether the consecutive

sentences imposed with respect to Counts Two and Four violate the

prohibition against double jeopardy because the same gun was used

in both offenses, which took place simultaneously. However, we

have specifically held that “multiple, consecutive sentences under

section 924(c)(1) are appropriate whenever there have been

multiple, separate acts of firearm use or carriage, even when all

of those acts related to a single, predicate offense.” United

States v. Camps, 32 F.3d 102, 106 (4th Cir. 1994). Accordingly,

this claim is without merit.

We have reviewed the claims addressed in Tapp’s pro se

supplemental brief and find them to be without merit. In
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accordance with Anders, we have reviewed the record in this case

and have found no meritorious issues for appeal. We therefore

affirm Tapp’s conviction and sentence. This court requires that

counsel inform Tapp, in writing, of the right to petition the

Supreme Court of the United States for further review. If Tapp

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Tapp.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED