* District Judge of the Northern District of Texas, sitting by

designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-1982

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

L. C. GIPSON,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

(February 21, 1995)

Before SMITH and BARKSDALE, Circuit Judges, and FITZWATER,*

District Judge.

JERRY E. SMITH, Circuit Judge:

I.

In October 1992, L.C. Gipson and some of his friends robbed

and attempted to rob several franchise fried chicken restaurants in

Fort Worth. In January 1993, Gipson was charged in a seven-count

indictment with conspiracy under 18 U.S.C. §§ 1951 and 1952, three

substantive counts of obstructing interstate commerce under §§ 1951

and 1952, and three counts of using or carrying a firearm during a
 

1 Each of the firearm counts flowed from the same robbery as one of

the Hobbs Act counts.

2

crime of violence in violation of 18 U.S.C. § 924(c).1 

Gipson was convicted at a jury trial of all seven counts. The

district court sentenced him to 210 months on each of counts 1, 2,

4, and 6, to run concurrently; 60 months on count 3, to run

consecutively to the sentences on counts 1, 2, 4, and 6; 240-month

terms on each of counts 5 and 7, to run consecutively to all other

counts in the indictment; a concurrent three-year term of supervised release on counts 1 through 7; and the $350 mandatory special

assessment. Gipson appealed, challenging the sufficiency of the

indictment's allegation of an effect on interstate commerce and

several aspects of the district court's application of the

Sentencing Guidelines.

II.

A.

Gipson asserts that the government failed to charge in the

indictment that his crimes affected interstate commerce, and

therefore failed to show jurisdiction under Stirone v. United

States, 361 U.S. 212, 218 (1960). At the very least, Gipson

claims, the government should have been required to provide a bill

of particulars specifying the factual basis for the interstate

commerce connection and therefore for federal jurisdiction. 

The indictment charged Gipson with Hobbs Act violations,

specifying that he had robbed several franchise fried chicken
 

2 The Hobbs Act counts charged, in relevant part, that defendants did

"knowingly and wilfully obstruct, delay, and affect commerce and attempt to

obstruct, delay, and affect commerce by robbery."

3

restaurants, and asserted, in the language of the Hobbs Act, that

these robberies had affected interstate commerce.2 We review the

sufficiency of an indictment de novo, finding it constitutionally

sufficient if it embraces each prima facie element of the charged

offense, notifies the defendant of the charges, and provides him

with a double jeopardy defense against future prosecutions. United

States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993), cert. denied,

114 S. Ct. 1124 (1994). 

This circuit has upheld indictments worded like the one at

issue. In a RICO context, we explained:

In this indictment, an explicit discussion of the

enterprise's effect on interstate commerce would contribute virtually nothing to defendants' understanding of the

nature of the offenses charged. . . . We find no indication . . . that defendants were surprised or in any way

prejudiced by the generality of the interstate commerce

allegation or evidence subsequently introduced to

establish it. The indictment was, therefore, sufficient.

United States v. Diecidue, 603 F.2d 535, 547-48 (5th Cir. 1979),

cert. denied, 445 U.S. 946 (1980). Later, we applied the Diecidue

analysis to a Hobbs Act violation:

Diecidue is not deciduous, it lives on as perennial

precedent until pruned by higher authorities. The ratio

decidendi of the "non-deciduous" Diecidue controls our

decision here. An indictment which alleges the interstate commerce element of a federal offense in conclusory

terms, without setting forth evidentiary detail, is not

insufficient.

United States v. Williams, 679 F.2d 504, 509 (5th Cir. 1982), cert.

denied, 459 U.S. 1111 (1983). 
4

Gipson argues that we should not follow Diecidue and Williams

because they conflict with Stirone and United States v. Summers,

598 F.2d 450 (5th Cir. 1979). He is mistaken. 

In Summers, we were concerned with whether the jury charge on

interstate commerce usurped the jury's factfinding authority;

sufficiency of the indictment was not at issue. In Stirone, a

variance between the pleading and proof at trial had allowed the

defendant to be convicted on a different theory of the effect on

interstate commerce from the one alleged in the indictment.

Stirone, 361 U.S. at 218 ("[W]hen only one particular kind of

commerce is charged to have been burdened, a conviction must rest

on that charge and not another, even though it be assumed that

under an indictment drawn in general terms a conviction might rest

upon a showing that commerce of one kind or another had been

burdened.") (emphasis added). Gipson's argument is foreclosed by

our holdings in Diecidue and Williams.

We find Gipson's alternative argument))that the government

should have been required to provide a bill of particulars))to have

been abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th

Cir. 1993) (holding that issues raised but not briefed on appeal

are considered abandoned). At any rate, a refusal to grant a bill

of particulars constitutes reversible error only if the "defendant

was actually surprised at trial and thereby incurred prejudice to

his substantial rights." Williams, 679 F.2d at 510. Gipson has

failed to make any allegation of surprise or prejudice.
5

B.

At the age of seventeen, Gipson was convicted, as an adult, of

two counts of aggravated robbery in Texas court. On each conviction, he received a sentence of greater than one year and one

month. Gipson argues that the court erred by including theses

sentences, imposed on December 16, 1981, in the calculation of his

status as a career offender under U.S.S.G. § 4B1.1. Specifically,

Gipson argues that the court wrongly applied § 4A1.2(e)(1) to his

prior convictions where § 4A1.2(e)(4) was controlling.

As Gipson's minority convictions fall within the plain

language of § 4A1.2(d)(1), § 4A1.2(d)(2) simply is not relevant.

Guideline § 4A1.2(d)(1), applying to "offenses committed prior to

age eighteen," adds three points to the criminal history score for

each time a defendant was convicted as an adult (as Gipson was) and

received a sentence of imprisonment exceeding one year and one

month (as Gipson did). Section 4A1.2(d)(2), which Gipson argues

should be applied through § 4A1.2(e)(4), plainly pertains only to

minority convictions not covered by § 4A1.2(d)(1) (e.g., juvenile

convictions or convictions for which defendant received a sentence

of one year and one month or less). The applicable time period for

Gipson's juvenile Texas aggravated robbery convictions is therefore

fifteen years, as specified in § 4A1.2(e)(1). Accordingly, the

district court did not err in considering these minority convictions in the calculation of Gipson's criminal history score. 
6

C.

Gipson argues that the court violated the Ex Post Facto Clause

by not applying the 1991 version of § 4B1.2(3). Gipson was

sentenced on October 20, 1993. Accordingly, the 1992 Guidelines,

effective from November 1, 1992, until October 31, 1993, are

applicable to his convictions absent an ex post facto problem.

United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.), cert.

denied, 114 S. Ct. 170 (1993). Gipson claims that an ex post facto

problem exists because his prior robbery convictions, all sustained

on the same date, would not have counted as separate convictions

under the 1991 version of § 4B1.2(3).

Gipson is mistaken. The 1991 Guidelines would not have

provided him with a shorter sentence. Both the 1991 and 1992

Guidelines require, for a defendant to be sentenced as a career

offender, that he be at least eighteen years of age, that the

instant offense be a crime of violence or a controlled substances

offense, and that he have at least two prior felony convictions of

either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. The sole difference between the two Guidelines

versions arises in their definitions of the term "two prior felony

convictions," as used in § 4B1.1. 

Both definitions require that the defendant committed the

instant offense subsequent to sustaining at least two felony

convictions of any combination of crimes of violence and drug

offenses, and that the sentences for at least two of those felony

convictions are counted separately under the provisions of
7

§ 4A1.1(a), (b), or (c). The sole difference between the two

provisions is that while the 1991 Guidelines specify that "the date

that a defendant sustained a conviction shall be the date the

judgment of conviction was entered," the 1992 Guidelines state that

"the date that a defendant sustained a conviction shall be the date

that the guilt of the defendant has been established, whether by

guilty plea, trial, or plea of nolo contendre." U.S.S.G.

§ 4B1.2(3) (1991) and (1992), respectively.

A common-sense reading of § 4B1.2(3) reveals that the purpose

of the last sentence of both versions is intended to define the

word "sustained" in the first sentence of the paragraph. United

States v. Salazar, No. 93-1208, slip op. at 5 (5th Cir. Dec. 9,

1993) (unpublished). The last sentence of both versions simply

designates the event establishing a conviction for purposes of a

career-offender enhancement; it is not relevant to whether Gipson's

prior offenses constitute a single or multiple convictions for

Guidelines purposes.

D.

Gipson challenges the finding that his seven prior robbery

convictions were not "related" to one another under § 4A1.2

application note 3. For Gipson to qualify as a career offender,

two or more of his prior convictions must be counted separately

under § 4A1.1(a), (b), or (c). The Guidelines specify that

sentences flowing from related cases are to be treated as one

sentence for purposes of § 4A1.1(a), (b), and (c). U.S.S.G.
8

§ 4A1.2(a)(2). 

Therefore, if all of his prior offenses were related to each

other, Gipson does not qualify as a career offender. Relatedness

is defined in both years' Guidelines in Application note 3 to

§ 4A1.2, which specifies:

Prior sentences are not considered related if they

were for offenses that were separated by an intervening

arrest (i.e., the defendant is arrested for the first

offense prior to committing the second offense).

Otherwise, prior sentences are considered related if they

resulted from offenses that (1) occurred on the same

occasion, (2) were part of a single common scheme or

plan, or (3) were consolidated for trial or sentencing. . . . Where prior related sentences result from

convictions of crimes of violence, § 4A1.1(f) will apply.

U.S.S.G. § 4A1.2, application note 3.

Gipson attempts to prove that his prior offenses were

consolidated by referencing § 4B1.2(3) of the 1991 Guidelines,

which states that a conviction is sustained on the date the

judgment of conviction is entered. He argues that because his

seven prior robbery convictions were all "sustained" on the same

day, they were "consolidated." 

Gipson provides no legal support for this argument. All but

two of the robberies had separate case numbers when they went to

trial and judgment, which indicates that at most the two robberies

sharing the same case number had been consolidated for judgment.

Accordingly, we find that there were at least six unconsolidated

convictions, providing ample basis for a career offender enhancement. Even if we agreed with Gipson that his cases had been

consolidated, we note that his career offender enhancement would

still stand on the basis of his minority convictions.
9

E.

Gipson argues that his convictions under 18 U.S.C. § 924(c)

and the Hobbs Act violate the Double Jeopardy Clause. While

candidly conceding that his argument is foreclosed by current Fifth

Circuit law, Gipson briefed the issue to preserve it for potential

Supreme Court review. We reiterate our holding that convictions

for both do not violate the Double Jeopardy Clause. See, e.g.,

United States v. Gonzalez, 40 F.3d 735 (5th Cir. 1994); United

States v. Martinez, 28 F.3d 444, 446 (5th Cir.), cert. denied,

115 S. Ct. 281 (1994). 

AFFIRMED.