United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1315

___________ United States of America, *

Plaintiff - Appellee, * Appeal from the United States

v. * Eastern District of Arkansas. Brent L. Mosley, * [UNPUBLISHED]

Defendant - Appellant. * *

* District Court for the

*

*

*

___________ Submitted: September 12, 1997 Filed: February 6, 1998

___________ Before McMILLIAN, ROSS, and HANSEN, Circuit Judges.

___________ PER CURIAM.
Brent L. Mosley appeals his convictions and sentences following a jury trial. Mosley w as convicted of carjacking in violation of 18 U.S.C. § 2119 (1994), interference with commerce by robbery in violation of 1 8 U.S.C. § 1951, the Hobbs Act, and two counts of using a firearm during a crime of violence in violation of 18

## The Ho norable Elsijane Trimble Roy, United States District Judge for th e 1 

## Eastern District of Arkansas. -2- U.S. C. § 924(c)(1). The district court entered judgment and sentence d 1 Mosley to life imprisonment pursuant to 18 U.S.C . § 3559(c)(1), the “three strikes” provision. We affirm.
Mosley’s convictions stem from a car theft in a Little Rock , Arkansas, shopping ce nter parking lot. The victim was sitting in her car when a man with a gun approached the car window and threatened to kill her
. The man then entered the vehicle through the driver’s side door. Th e victim’s escape attempt was thwarted when anothe r man entered the car from the passenger side. A third man entered the back seat of the car as the first man b egan to drive away. The men drove to North Little Rock , Arkansas, and stopped briefly to move the victim to the back seat of the
car. They then drove to Brinkley, Arkansas, while the man in the back sea t held the victim at gunpoint and threatened to kill her. Upon reachin g Brinkley, the three m en robbed a gas station. A clerk at the gas station identifie d Mosley as one of the robbers. The victim escaped during th e robbery and contacted the police. After complet ing the robbery, the three
men began driving the stolen car back toward Little Rock. The polic e pursued the car, and a high speed chase ensued. The chase ended when the
men crashed the stolen vehicle. The police arrested Mosley at the acciden t scene after he was thrown from the car and injured during the crash.
Mosley first claims there is insuffi cient evidence to convict him of carjacking and the us e of a firearm during a crime of violence. We apply familiar standards in

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an insufficiency of the evidence challenge. We must uphold the conviction “if , after viewing the evidence in the light most favorable to th e government, there is substantial evidence to support the jury’s verdict.” United States v. Schu bel , 912 F.2d 952, 955 (8th Cir. 1990). We give the verdict the benefit of all reasonable inferences that may be drawn from th e evidence. Id. A conviction will be upheld unless no reasonable jury coul d have found the defend ant guilty beyond a reasonable doubt. United States v. Quintanilla , 25 F.3d 694, 699 (8th Cir. 1994).
We reject Mosley’s argument because there is sufficient evidence to support the convictions. The victim of the carj acking testified at length about her ordeal. She described how the man in the back seat made repeate d threats to kill her while he held a gun to her head. Although the victim admitted she could no t identify Mosley as the man who threatened her, she als o testified that he was not one of the two men who were in the fron t seat of t he carjacked vehicle. A clerk working at the gas station i n Brinkley identified M osley as one of the robbers. Mosley was captured at the scene of the crash after being thrown from the stolen car. Thi s evidence supports a reasonable inference that Mo sley was the carjacker who
was in the back seat of the car threatening to kill the victim whil e holding her at gunpoint. The jury could reasonably conclude that Mosley
was guilt y of carjacking and that he possessed a firearm during th e carjacking and robbery, both crimes of violence.
Mosley next argues that the Hobbs Ac t is unconstitutional as applied to him i n this case because Congress does not have the power under th e Commerce Clause to prohibit local robberies, citing United States v. Lopez , 514 U.S. 549 (1995). The Hobbs Act prohibits “robbery” that “obstructs, delays, or affects commerce or the

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movement of any article or commodity in commerce .” 18 U.S.C. 1951(a). As Mosley concedes, we r ejected this argument in United States v. Farmer , 73 F.3d 836 , 843 (8th Cir.), cert. denied , 116 S. Ct. 2570 (1996), and w e reject it again here. In Farmer , we held that the limitation on Congress’ s power to legislate pursuant to the Commerce Clau se recognized in Lopez had
no a pplication to a Hobbs Act robbery of a commercial establishment
. Farmer , 73 F.3d at 843. We also held that a “local” robbery is a violatio n of the Hobbs Act so long as it satisfies “the re quirement that commerce or the movement of any article or commodity in commerce is obstructed , delay ed, or affected, always understanding that ‘commerce,’ in thi s context, is meant ‘interstate commerce.’” Id. T he evidence here shows the robbery clearly met this interstate commerce req uirement. The gas station sold va rious products that traveled in interstate commerce, includin g gasoli ne shipped from Tennessee, bakery goods from Missouri, and snac k foods from Texas. Further, many of the station’s customers were interstat e travelers.
Mosley next claims that he should not have been sentenced as anaider and abettor to the robbery because his intoxication prevented him fro m reasona blyforeseeing that the robbery would occur. Mosley bases hi s argument on the United States Sentencing Guidelines Manual § 1B1.3(a)(1)(B ) (19 95), which provides that “in the case of jointly undertaken crimina l activity . . . all re asonably foreseeable acts and omissions of others in fur therance of the jointly undertaken criminal activity” shall b e considered in determining the base level offense. Another provision of th e Guidelines, § 1B1.3(a)(1)(A), provides that the base level offense shall be determined on the basis of “all acts and omissions committed, aided , abetted, counseled, commanded, induced, procured, or willfully caused by the defendant.” The

## On October 15, 1997, Mosley submitted a pro se supplemental brief making two 2 

## claims not r aised by his counsel. Mosley attacks his convictions based on allege d evidentiary errors by the district court, citing Old Chief v. United States , 117 S. Ct. 644 (1997). He also claims the court erred in sentencing him to life impriso nment. Because Mosl ey submitted this brief more than a month after the case was submitted o n September 12, 1997, we decline to consider the claims he attempts to raise

. See United States v. Cunningham , No. 97-1720, 1998 WL 7227, at *6 (8th Cir. Jan. 13, 1998)

. Our acti on is without prejudice to Mosley’s right to file a petition for post-conviction relief under 28 U.S.C. § 2255. Id. -5- commentaryto § 1B1.3 instructs a court when to use subsection (a)(1)(A) and when to use subsection (a)(1)(B), providing that
[t]he requirement of rea sonable foreseeability applies only in res pect to the conduct ( i.e. , acts and omissions) of other s under subsection (a)(1)( B). It does not apply to conduct that the defendant personally undertakes, aids, abets, counsels , commands, induces, procu res, or willfully causes; such conduct is addressed under subsection (a)(1)(A). USSG § 1B1.3, comment . (n.2). Thus, if Mosley personally participated in the robbery, then the reasonable foreseeability requirement does not apply
. The evidence here shows that Mosley personally participated in the robbery
. An ey ewitness identified Mosley as one of the robbers. Therefore, th e reasonable foreseeabi lity provisions of subsection (a)(1)(B) do not apply to Mosley’s sentencin g as an aider and abettor to the robbery. We reject his contention to the contrary.

We have considered and rejected all of Mosley’s arguments that ar e properly b efore us. Accordingly, we affirm the judgment of the district 2 court.

## -6- A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.