United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1315

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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Brent L. Mosley, * [UNPUBLISHED]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

*

*

*

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 Submitted: September 12, 1997

 Filed: February 6, 1998

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Before McMILLIAN, ROSS, and HANSEN, Circuit Judges.

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PER CURIAM.

Brent L. Mosley appeals his convictions and sentences following a

jury trial. Mosley was convicted of carjacking in violation of 18 U.S.C.

§ 2119 (1994), interference with commerce by robbery in violation of 18

U.S.C. § 1951, the Hobbs Act, and two counts of using a firearm during a

crime of violence in violation of 18
The Honorable Elsijane Trimble Roy, United States District Judge for the

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Eastern District of Arkansas. 

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U.S.C. § 924(c)(1). The district court entered judgment and sentenced

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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 center 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. The

victim’s escape attempt was thwarted when another man entered the car from

the passenger side. A third man entered the back seat of the car as the

first man began 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 seat

held the victim at gunpoint and threatened to kill her. Upon reaching

Brinkley, the three men robbed a gas station. A clerk at the gas station

identified Mosley as one of the robbers. The victim escaped during the

robbery and contacted the police. After completing the robbery, the three

men began driving the stolen car back toward Little Rock. The police

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 accident

scene after he was thrown from the car and injured during the crash.

Mosley first claims there is insufficient evidence to convict him of

carjacking and the use 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 the

government, there is substantial evidence to support the jury’s verdict.”

United States v. Schubel, 912 F.2d 952, 955 (8th Cir. 1990). We give the

verdict the benefit of all reasonable inferences that may be drawn from the

evidence. Id. A conviction will be upheld unless no reasonable jury could

have found the defendant 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 carjacking testified at length

about her ordeal. She described how the man in the back seat made repeated

threats to kill her while he held a gun to her head. Although the victim

admitted she could not identify Mosley as the man who threatened her, she

also testified that he was not one of the two men who were in the front

seat of the carjacked vehicle. A clerk working at the gas station in

Brinkley identified Mosley as one of the robbers. Mosley was captured at

the scene of the crash after being thrown from the stolen car. This

evidence supports a reasonable inference that Mosley was the carjacker who

was in the back seat of the car threatening to kill the victim while

holding her at gunpoint. The jury could reasonably conclude that Mosley

was guilty of carjacking and that he possessed a firearm during the

carjacking and robbery, both crimes of violence.

Mosley next argues that the Hobbs Act is unconstitutional as applied

to him in this case because Congress does not have the power under the

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 rejected this argument in United States v. Farmer, 73

F.3d 836, 843 (8th Cir.), cert. denied, 116 S. Ct. 2570 (1996), and we

reject it again here. In Farmer, we held that the limitation on Congress’s

power to legislate pursuant to the Commerce Clause recognized in Lopez had

no application to a Hobbs Act robbery of a commercial establishment.

Farmer, 73 F.3d at 843. We also held that a “local” robbery is a violation

of the Hobbs Act so long as it satisfies “the requirement that commerce or

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

delayed, or affected, always understanding that ‘commerce,’ in this

context, is meant ‘interstate commerce.’” Id. The evidence here shows the

robbery clearly met this interstate commerce requirement. The gas station

sold various products that traveled in interstate commerce, including

gasoline shipped from Tennessee, bakery goods from Missouri, and snack

foods from Texas. Further, many of the station’s customers were interstate

travelers. 

Mosley next claims that he should not have been sentenced as an aider

and abettor to the robbery because his intoxication prevented him from

reasonably foreseeing that the robbery would occur. Mosley bases his

argument on the United States Sentencing Guidelines Manual § 1B1.3(a)(1)(B)

(1995), which provides that “in the case of jointly undertaken criminal

activity . . . all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity” shall be

considered in determining the base level offense. Another provision of the

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 raised by his counsel. Mosley attacks his convictions based on alleged

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 imprisonment. Because

Mosley submitted this brief more than a month after the case was submitted on

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 action is without prejudice to Mosley’s right to file a petition for post-conviction

relief under 28 U.S.C. § 2255. Id. 

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commentary to § 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 reasonable foreseeability applies only in

respect to the conduct (i.e., acts and omissions) of others

under subsection (a)(1)(B). It does not apply to conduct that

the defendant personally undertakes, aids, abets, counsels,

commands, induces, procures, 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 eyewitness identified Mosley as one of the robbers. Therefore, the

reasonable foreseeability provisions of subsection (a)(1)(B) do not apply

to Mosley’s sentencing 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 are

properly before us. Accordingly, we affirm the judgment of the district 2

court.
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A true copy.

Attest:

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