*Pursuant to 5TH CIR. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-10082

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICK WEBSTER,

Defendant-Appellant.

 

Appeal from the United States District Court for the

Northern District of Texas

(3:96-CR-291-1-T)

 

November 6, 1997

Before GARWOOD, JONES and STEWART, Circuit Judges.*

PER CURIAM:

Defendant-appellant Patrick Webster (Webster) appeals his

guilty plea conviction for robbing an armored car in violation of

the Hobbs Act, 18 U.S.C. § 1951(a) and 2. Webster argues two

points on appeal. First, he argues that the indictment was

defective because it did not allege that the robbery affected
1Count One alleges in relevant part that Webster and others,

aided and abetted by each other, “did obstruct, delay, and affect

commerce and attempted to do so, by robbery, to wit: the

defendants took and obtained, from the person and presence of

Darrell Smith, employee of Armored Transport of Texas, Inc., United

States currency, against his will, by means of actual and

threatened force and violence and fear of injury to his person.”

2

interstate commerce. Second, he argues that his guilty plea is

invalid because the factual resume did not show that his robbery

affected interstate commerce. We affirm.

Factual and Procedural Background

Webster was charged in a two-count indictment returned in

August 1996. Count One charged robbery affecting commerce contrary

to the Hobbs Act, and aiding and abetting same. Count Two charged

use and carrying of a firearm in connection with the Hobbs Act

offense, and aiding and abetting such, contrary to 18 U.S.C. §§

924(c)(1) and 2. Webster, through counsel, filed several discovery

motions and a motion to dismiss Count One of the indictment. The

motion to dismiss Count One asserted that the indictment did not

adequately plead an effect on interstate commerce, citing United

States v. Collins, 40 F.3d 95 (5th Cir. 1994).1 The district court

overruled the motion to dismiss. Subsequently, Webster and the

prosecutor entered into a written plea agreement and a document

entitled “Factual Resume.” Each was signed by Webster’s attorney

and by Webster personally. The plea agreement recites that Webster

will plead guilty to Count One, which it describes as “robbery

affecting interstate commerce” contrary to the Hobbs Act, and the
2If convicted on Count Two, Webster would have faced a

mandatory sentence of five years additional to any sentence imposed

on Count One. Section 924(c)(1).

3

government will dismiss Count Two at sentencing and “recommend the

lowest level of the guideline range determined applicable by the

court.”2 The factual resume, which the plea agreement says “is

true and correct,” states that on August 6, 1996, in the Dallas

Division of the Northern District of Texas, Webster, Still, Wilson,

and Washington 

“did knowingly and willfully obstruct, delay and affect

commerce by taking from the person and presence of

Darrell Smith, an employee of Armored Transport of Texas,

United States currency, against Smith’s will. The

currency was obtained by use of actual and threatened

force and violence and fear of injury to the person of

Darrell Smith.

On or about August 5, 1996, WEBSTER met with Still

and Wilson to plan the robbery of the armored car on

August 6, 1996. Still was employed by Armored Transport

of Texas, Inc., as a driver and guard. Still provided

information as to where the robbery would occur and how

to gain entry to the armored car. According to

information provided to agents of the Federal Bureau of

Investigation by Still and Wilson, it was planned that a

gun would be placed to the head of a second guard who

would be in the armored car while Still faked resistance

to the robbery. The money gained from the robbery of the

armored car was to be split among Still, WEBSTER and

Wilson.

On or about August 6, 1996, WEBSTER and Wilson

gained entrance to the armored truck driven by Still by

overpowering a second guard, Darrell Smith, at gunpoint.

The armored car, along with Darrell Smith, was taken from

the original scene of the robbery by Still, WEBSTER and

Wilson. Smith’s eyes were taped and his hands were

bound. A nineteen minute police chase terminated when

the armored car crashed into a residential fence and

WEBSTER and Wilson fled on foot. The armored car
4

contained approximately 1.2 million dollars in United

States currency.

WEBSTER agrees that this Factual Resume is true and

correct, except as it relates to Still and Wilson’s

contention that it was part of the original plan to use

a gun during the robbery. WEBSTER maintains that he was

not aware of the gun until the robbery occurred.”

(Emphasis added).

Subsequently, Webster was rearraigned and his guilty plea to

Count One was accepted. At the rearraignment, the plea agreement

was presented and summarized and Webster, who was twenty-seven

years old and had one year of college, said he had read and signed

it and discussed it with his attorney and understood all its

provisions. The factual resume was then read aloud and Webster

stated that it was correct.

Approximately six days later Webster filed an unverified pro

se motion to withdraw his plea, arguing that his attorney had

pressured him into entering into it, that the plea agreement did

not contain what he had, prior to rearraignment, thought it would

contain, and that “the representations of the factual resume are

not fully true or correct.” No specifics are asserted, and the

motion is entirely conclusory. No mention is made of commerce or

interstate commerce. No assertion of innocence is made. The

district court denied the motion. Over two months thereafter,

Webster, pro se, filed two further motions to withdraw his plea,

urging that because the armored car guard, Still, was in on the

offense, and had lawful custody of the money, and because Webster

did not know a gun was going to be used on the other guard, Smith,
5

that there was no robbery as charged in the indictment, but rather

merely embezzlement or larceny. No mention of commerce or

interstate commerce is made or even hinted at in any of these

motions.

At the subsequent sentencing hearing, Webster testified that

Still, one of the two guards on the armored truck, was in on the

plan to take the money from the armored car, and that although

Smith, the other guard, was not, Webster did not believe a gun

would be either needed or used. Webster admitted Smith carried a

gun. Webster had driven an armored car for the same company.

Webster also admitted that a firearm was in fact used by Wilson,

one of the other participants. An FBI agent testified that another

participant had told him that he had observed Wilson brandishing

his gun in Webster’s presence before the robbery. In his direct

examination, Webster stated:

“A. Well, one reason I think this is not a robbery, it’s

a [sic] embezzlement by theft.

Q. Why do you say that?

A. Because it was two security guards that was agents by

the company, employed by the company, and both had a

right to have -- they both had rights to have --

transport the money. And one security -- one security

officer, he’s deceived the company and the other security

officer --”

Later on at the sentencing hearing, the following transpired:

“THE COURT: All right. The court has also before

it Mr. Webster’s motion to withdraw his plea.

Does Mr. Webster wish to address that?

MR. HENDRICK [Webster’s counsel]: Yes, Your Honor.

We would -- I believe the court has previously denied Mr.
6

Webster’s first motion to withdraw his plea. We have

filed two additional motions basically arguing that the

-- he’s to be permitted to withdraw his plea because this

offense was not a robbery. It was either a theft by

deception or an embezzlement, and for those reasons, we

reurge defendant’s motion to be able to withdraw his

plea.

THE COURT: All right. The court having previously

accepted the defendant’s plea finds that the defendant in

this case has put forth no fair or just reason why the

plea should be allowed to be withdrawn.”

The PSR reflects that the armored car had been robbed “at the

BankOne location at 112 South Garland Road in Garland, Texas,” that

the armored car contained $1,288,602 in United States currency, and

that “[a]ll of the money was recovered, therefore, BankOne suffered

no loss as a result of this robbery.” Nothing in the record, or in

the PSR, in any way suggests that Webster, either in person or

through counsel, ever contended that either the factual resume, or

the evidence or matter otherwise before the court, was insufficient

to show the required nexus to interstate commerce, or ever

contended that in point of fact such nexus was lacking. Nor does

the record contain anything to suggest that in point of fact there

was no such requisite nexus.

Discussion

1. Indictment.

Webster’s argument, that the indictment was defective, is

meritless. The indictment, like section 1951(a), referred to the

robbery’s effect on “commerce.” Webster argues that this is an
3"Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in commerce,

by robbery or extortion . . . .” 18 U.S.C. § 1951(a).

7

insufficient indictment since a crime can only be a section 1951(a)

offense if it affects interstate commerce. 

While the robbery must affect interstate commerce in order to

constitute a Hobbs Act violation, the indictment need not

specifically use the term “interstate commerce.” The term

“commerce” alone is sufficient to charge a Hobbs Act violation.

See United States v. Gipson, 46 F.3d 472, 474 (5th Cir. 1995), and

United States v. Parker, 73 F.3d 48, 54-55 (5th Cir. 1996) (both

upholding Hobbs Act indictments that alleged an interference with

“commerce,” rather than interstate commerce, and holding that

“commerce,” when used in a Hobbs Act indictment, covered interstate

commerce). The Hobbs Act uses the term “commerce,”3 but defines it

to mean interstate commerce. See 18 U.S.C. § 1951(b)(3) (defining

commerce to include only commerce within United States Territories

and interstate commerce). See also United States v. Williams, 679

F.2d 504 (5th Cir. 1982). Since Webster’s indictment tracks the

language of the Hobbs Act, and thereby covers each prima facie

element of the charge and notifies the defendant of the charge, we

find that it is sufficient. 

2. Rule 11(f).

Webster’s sole remaining argument, that the district court

erred by failing to require a showing that this robbery affected
8

interstate commerce, is likewise without merit. We read Webster’s

argument to be merely that reversible error is present because the

factual resume, which was the only relevant rearraignment evidence

other than the plea agreement, did not include any facts concerning

the interstate effect of the robbery. 

The contention that the factual resume did not contain any

information that the robbery affected interstate commerce is being

raised by Webster for the first time on appeal; this point, must,

therefore, be reviewed for plain error. See Fed. R. Crim. P.

52(b); United States v. Olano, 113 S.Ct. 1770 (1993). There is

nothing to suggest that the omission from the factual resume of

details on the robbery’s connection to interstate commerce is other

than a technical imperfection, which doubtless could easily have

been remedied by the district court had Webster brought it to the

court’s attention in any of his three motions to withdraw his

guilty plea. Webster was fully aware of the nexus requirement

under the Hobbs Act, as reflected by his citation below of Collins.

And, United States v. Lopez, 115 S.Ct. 1624 (1995), had been

decided for over a year. Webster does not contend that in actual

fact the required nexus to interstate commerce was lacking.

Indeed, it is difficult to imagine that a $1,200,000 robbery from

an interstate banking concern such as BankOne does not have the

requisite nexus. The factual resume states that Webster did

“obstruct, delay and effect commerce by” the robbery, and the plea
9

agreement says that the robbery was one “affecting interstate

commerce” and that the factual resume is correct. It is not clear

that any error of the district court was “plain” or that it affects

substantial rights. In any event, even assuming arguendo that

error which is plain and affects substantial rights is present, in

the instant context we choose to exercise our discretion not to

correct this claimed error that is raised for the first time on

appeal. See Olano, 113 S.Ct. at 1778 (“Rule 52(b) is permissive,

not mandatory.”); United States v. Mmahat, 106 F.3d 89, 95-96 (5th

Cir. 1997) (same).

AFFIRMED