IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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NO. 93-1851

Summary Calendar

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

MICHAEL DEANGELO DAVIS, Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Texas

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(August 22, 1994)

Before SMITH, WIENER, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Appellant Michael Deangelo Davis ("Davis") appeals

his convictions on four counts of Interference with Commerce by

Threats or Violence in violation of 18 U.S.C. § 1951 ("the Hobbs

Act") and two counts of Use of a Firearm During a Crime of Violence

in violation of 18 U.S.C. § 924(c). He asserts that the Government

failed to present sufficient evidence proving an established nexus

between his robberies of four gas stations and an ensuing effect on

interstate commerce. In addition, Davis challenges the district

court's upward departure based on the subsequent death of one of

the robbery victims. We affirm.

FACTS AND PROCEDURAL HISTORY

Davis was indicted on a total of six counts stemming from the

alleged robbery of four gas stations in Fort Worth, Texas on
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December 10, 1992. Four of the counts were for obstruction of

commerce by robbery, and two of the counts were for use of a

firearm during the commission of a robbery. 

Witnesses testified that all of the gas stations sold gas,

beer, cigarettes and other goods which were manufactured out-ofstate and distributed across state lines. The testimony also

revealed that Davis used a handgun in at least two of the

robberies. After he fled each of the gas stations he robbed, the

stations had to be temporarily closed, thereby interrupting the

stream of commerce. When Davis testified at the trial, he admitted

robbing the stations, but denied using a handgun in any of them.

The jury convicted Davis on all six counts. The Presentence

Investigation Report ("PSIR") concluded that Davis' conduct caused

the death of Carolyn Overby ("Overby"), an employee working at the

Lady Luck Fina station at the time Davis robbed it on December 10,

1992. According to the Assistant Medical Examiner for Tarrant

County, Texas, the traumatic event of the robbery caused Overby to

suffer a Berry aneurysm at the base of her brain, resulting in her

death two days later. 

Although Davis filed an objection to the PSIR's finding that

his conduct caused Overby's death, at sentencing he failed to

present any evidence to contradict that finding. Accordingly, the

district court adopted the PSIR's finding that the robbery caused

Overby's death as undisputed. The court also found that although

Davis did not have the conscious intent to kill, his conduct was

such that he should have anticipated that serious injury or death
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could result. The court concluded that upward departure was

authorized under § 5K2.1 of the Sentencing Guidelines, which

provides for departure "[i]f death resulted." The court also

concluded that an upward departure was warranted because without it

Overby's death would not be taken into account by the Sentencing

Guidelines.

The district court departed upward on the four obstruction of

commerce counts by adding 60 months to the combined offense level

under the Sentencing Guidelines, for a total of 157 months for each

count running concurrently with one another. In addition, the

court imposed a mandatory consecutive sentence of 60 months on one

of the firearm counts and a mandatory consecutive sentence of 240

months on the second firearm count.

DISCUSSION

Davis contends that the Government failed to show that his

actions affected interstate commerce, notwithstanding the de

minimus evidentiary standard used to establish the jurisdictional

element under the Hobbs Act. Specifically, he argues that the mere

presence of goods such as cigarettes and beer in the gas stations

he robbed does not affect the flow of interstate commerce. 

Davis failed to move for a judgment of acquittal at the close

of evidence. Therefore, our review of the sufficiency of the

evidence is limited to determining "whether affirmance of [Davis']

convictions would result in a manifest miscarriage of justice.

This occurs only if the record is devoid of evidence pointing to

guilt." United States v. Pruenda-Gonzales, 953 F.2d 190, 193-94
 

1 See United States v. Martinez, ___F.3d___, WL 392671 (5th

Cir. July 29, 1994) (temporary or permanent closing of business

dealing in out-of-state wares sufficient interference with

interstate commerce); United States v. Richard, 9 F.3d 120 (5th

Cir. 1993) (unpublished opinion) (temporary closure of store

following robbery sufficient interference with interstate

commerce).

 

2 Section 5K2.1 of the Sentencing Guidelines provides in

pertinent part:

If death resulted, the court may increase the sentence

above the authorized guideline range...The extent of

the increase should depend on the dangerousness of the

defendant's conduct, the extent to which death or

serious injury was intended or knowingly risked, and

the extent to which the offense level for the offense

4

(5th Cir.), cert. denied, ___U.S.___, 112 S.Ct. 2952, 119 L.Ed.2d

575 (1992).

A valid conviction of a Hobbs Act violation by robbery

requires the Government to prove that the defendant's conduct

"obstruct[ed], delay[ed], or affect[ed] commerce or the movement of

any article or commodity in commerce." 18 U.S.C. § 1951(a).

However, the Government need only show that interstate commerce was

obstructed, delayed, or affected "in any way or degree." United

States v. Wright, 797 F.2d 245, 248-49 (5th Cir. 1986), cert.

denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). In

this case, Davis' robberies caused the interruption of commerce in

all four gas stations dealing in out-of-state goods, resulting from

their temporary closure. This evidence is sufficient to support a

finding that Davis' robberies affected interstate commerce.1

Davis next challenges the district court's upward departure at

sentencing under § 5K2.1 of the Sentencing Guidelines for Overby's

death after the robbery.2 He argues that the departure was not
of conviction...already reflects the risk of personal

injury.

USSG § 5K2.1, p.s. (1993).

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warranted because none of the § 5K2.1 factors apply to him and the

consecutive sentences resulting from his two firearm convictions

adequately accounted for the aggravated circumstances of his

offenses. 

The district court is given wide discretion to decide whether

aggravating factors exist to support an upward departure. United

States v. Hatch, 926 F.2d 387, 396-97 (5th Cir.), cert. denied, 500

U.S. 943, 112 S.Ct. 126, 116 L.Ed.2d 93 (1991). A departure will

be affirmed if the court offers "acceptable reasons for the

departure and the departure is reasonable." United States v.

Velasquez-Mercado, 872 F.2d 632, 635 (5th Cir.), cert. denied, 493

U.S. 866, 110 S.Ct. 187, 107 L.Ed.2d 142 (1989).

A district court is not required to find that all of the §

5K2.1 factors exist in order to impose an upward departure. United

States v. Ihegworo, 959 F.2d 26, 29 (5th Cir. 1992). "The only

'mandatory' language in the section is that the judge 'must'

consider matters that 'normally distinguish among levels of

homicide,' such as state of mind." Id. In this case, the court

specifically stated that the mandatory factors were taken into

account. The court's conclusion that although Davis did not

consciously intend to kill Overby his conduct was such that he

should have anticipated that a serious injury or death could result

from his conduct shows that relevant factors under § 5K2.1 were
 

3 See USSG § 2B3.1 and 18 U.S.C. § 924.

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thoroughly considered.

In addition, we find that there is no merit to Davis'

contention that the consecutive sentences he received for the

firearm counts adequately took into account Overby's death. Davis

was not charged with having used a firearm in the Lady Luck Fina

station where Overby was robbed. Even if he had been convicted of

using a firearm during that robbery, the Sentencing Guidelines and

the firearm statue do not preclude an upward departure based on a

resulting death.3 Such an upward departure is specifically

authorized by § 5K2.1. AFFIRM.