UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4200

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GREGORY W. BURWELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, District

Judge. (CR-03-203)

Submitted: November 4, 2005 Decided: January 3, 2006

Before WILKINSON, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Charles A. Gavin, BLACKBURN, CONTE, SCHILLING & CLICK, P.C.,

Richmond, Virginia, for Appellant. Paul J. McNulty, United States

Attorney, Michael J. Elston, Assistant United States Attorney,

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Following a jury trial, Gregory W. Burwell was convicted

of three counts of conspiracy to interfere with commerce by

violence, in violation of 18 U.S.C. § 1951 (2000), two counts of

actual interference with commerce by violence, in violation of 18

U.S.C. § 1951, and two counts of use of a firearm during the

commission of a crime of violence, in violation of 18 U.S.C.A.

§ 924(c) (West 2000 & Supp. 2005). The district court sentenced

Burwell under the federal sentencing guidelines to 168 months of

incarceration on the § 1951 charges and consecutive sentences of 84

months and 300 months on the two firearm charges, for a total

sentence of 552 months. On appeal, Burwell challenges the

sufficiency of the evidence to support his convictions and argues

that his sentence was erroneously enhanced by facts found by the

district court judge. See United States v. Booker, 125 S. Ct. 738

(2005). For the reasons that follow, we affirm Burwell’s

convictions, but vacate his sentence and remand for resentencing.

Burwell contends that the evidence was insufficient on

the charges of conspiracy to interfere and interference with

commerce by violence in violation of the Hobbs Act, 18 U.S.C.

§ 1951. “A Hobbs Act violation requires proof of two elements:

(1) the underlying robbery or extortion crime, and (2) an effect on

interstate commerce.” United States v. Williams, 342 F.3d 350, 353

(4th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 1169
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(2004). The effect on commerce need not be a material effect;

rather, the second element may be satisfied by even a minimal

effect on commerce. Id. at 354.

The offenses charged in Counts 1 to 3 arose from the

robbery of the J&D Supermarket. The evidence supporting these

charges included the testimony of Jorrell Toler, a co-conspirator

who testified for the Government at Burwell’s trial. Toler

testified that he, Burwell, and another individual discussed

robbing the J&D Supermarket. The J&D Supermarket sells products

that were made in Mexico and products purchased from distributors

in Maryland and the District of Columbia.

On March 10, 2003, Toler and Burwell armed themselves

with a gun and went to the Supermarket in Burwell’s car, which had

a personalized license plate “BURWE1L.” They wore masks and

entered the store shortly before closing. Burwell drew his gun and

demanded the money from the cash register, but he and Toler left

the store before obtaining the money. This evidence, viewed in the

light most favorable to the Government, was sufficient for a

rational fact finder to find Burwell guilty of all three charges.

Glasser v. United States, 315 U.S. 60, 80 (1942); Williams, 342

F.3d at 354; see United States v. Kennedy, 133 F.3d 53, 57-58 n.3

(D.C. Cir. 1998) (holding that Hobbs Act violations are crimes of

violence).
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Burwell was also convicted of conspiracy to interfere and

interference with commerce by threats and violence arising from the

robbery of a McDonald’s fast food restaurant in Bowling Green,

Virginia. The evidence on these charges, viewed in the light most

favorable to the Government, showed that Burwell and Antonio Gray

were driving around in Burwell’s car “looking for a place to rob.”

Burwell was hungry, so they stopped at a McDonald’s. Burwell went

into the restaurant and purchased food. He returned to the vehicle

and informed Gray that the manager had the safe open, and there

were three women working there. Burwell and Gray determined that

Gray would rob the restaurant, Burwell would wait in the car at a

certain location, and they would split the proceeds. Gray then

entered the restaurant, asked for the manager, and demanded the

money from the safe. However, the safe was no longer open, so he

obtained $662 from a cash register. The restaurant purchased food

and products from outside of Virginia. The McDonald’s closed for

an hour or two following the robbery. We find that this evidence

was clearly sufficient to show that Gray and Burwell entered into

an agreement to commit a robbery, that they committed the robbery,

and that the robbery had an effect on interstate commerce. See

Glasser, 315 U.S. at 80; Williams, 342 F.3d at 353-54.

Burwell’s convictions on the remaining counts result from

his involvement in the robbery of the Steady Flow Clothing Store in

Richmond, Virginia. Burwell was convicted of conspiracy to
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interfere with commerce by threats and violence, interference with

commerce by threats and violence, and use and carry of a firearm in

relation to a crime of violence. The evidence supporting those

convictions was as follows: Burwell, Gray, and Toler agreed to rob

the clothing store. On the day of the robbery, Burwell drove the

three of them to the store. He and Toler carried firearms. The

three entered the store wearing ski masks and robbed it of $1500,

a diamond watch, and some vintage jerseys, which the store had

purchased from a company in Pennsylvania.

Burwell contends that there was no evidence of an

agreement to or intent to obstruct, delay, or affect commerce, and

there was no evidence that commerce was materially affected.

However, there is no need to prove that the defendant specifically

intended to obstruct, delay or affect commerce. The crime is

committed if the defendant commits a robbery or conspires to commit

robbery, the natural consequence of which is an obstruction of

commerce, even if that effect is minimal. See Williams, 342 F.3d

at 353-54. We find that the evidence was sufficient to prove both

that Burwell conspired to commit the robbery and that he committed

the robbery. Also, the evidence was sufficient to show that the

robbery affected commerce. Notably, there were customers in the

store at the time of the robbery, and the store closed early

because of the robbery. Also, the theft of merchandise that would

otherwise be sold has an effect on commerce. See id. at 354-55
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(“Commerce is sufficiently affected under the Hobbs Act where a

robbery depletes the assets of a business that is engaged in

interstate commerce.”). Additionally, we find that the evidence

was sufficient for the jury to find that Burwell carried a firearm

during the robbery, which qualifies as a crime of violence.

Glasser, 315 U.S. at 80; Kennedy, 133 F.3d at 57-58 n.3.

Having found the evidence--viewed in the light most

favorable to the Government--was sufficient to support Burwell’s

convictions on all the charges, we affirm his convictions.

Relying on United States v. Booker, Burwell contends that

the district court erred by making factual findings concerning

other criminal conduct and departing upward from the sentencing

range based on those findings. Specifically, the district court

found that Burwell was involved in twenty-four other uncharged

robberies. This finding resulted in an increase in his offense

level from level 27 to level 32, and an increase in his sentencing

range on the robbery counts from 78 to 97 months, to 135 to 168

months.

In Booker, the Supreme Court held that the mandatory

guidelines scheme that provided for sentence enhancements based on

facts found by the court violated the Sixth Amendment. 125 S. Ct.

at 746-48, 755-56. The Court remedied the constitutional violation

by severing and excising the statutory provisions that mandate

sentencing and appellate review under the guidelines, thus making
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the guidelines advisory. Id. at 756-57. Subsequently, in United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), this court

held that a sentence that was imposed under the pre-Booker

mandatory sentencing scheme and was enhanced based on facts found

by the court, not by a jury or admitted by the defendant,

constitutes plain error that affects the defendant’s substantial

rights and warrants reversal under Booker. Hughes, 401 F.3d at

546-56.

Burwell contends that he did not admit to participating

in the additional robbery offenses listed in the presentence

report, nor was this fact submitted to the jury for a

determination. Therefore, he argues that the five-level upward

departure violated his Sixth Amendment rights. Because Burwell did

not raise this issue at sentencing, our review is for plain error.

United States v. Olano, 507 U.S. 725, 732 (1993); Hughes, 401 F.3d

at 547. Under the plain error standard, Burwell must show:

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights. Olano, 507 U.S. at 732-34. Even

when these conditions are satisfied, this court may exercise its

discretion to notice the error only if the error “seriously affects

the fairness, integrity or public reputation of judicial

proceedings.” Hughes, 401 F.3d at 555 (internal quotation marks

omitted).
1As we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of course

offer no criticism of the district judge, who followed the law and

procedure in effect at the time” of Burwell’s sentencing. See

generally Johnson v. United States, 520 U.S. 461, 468 (1997)

(stating that an error is “plain” if “the law at the time of trial

was settled and clearly contrary to the law at the time of

appeal”).

2

Although the Sentencing Guidelines are no longer mandatory,

Booker makes clear that a sentencing court must still “consult

[the] Guidelines and take them into account when sentencing.” 125

S. Ct. at 767. On remand, the district court should first

determine the appropriate sentencing range under the Guidelines,

making all factual findings appropriate for that determination.

Hughes, 401 F.3d at 546. The court should consider this sentencing

range along with the other factors described in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005), and then impose a sentence.

Id. If that sentence falls outside the Guidelines range, the court

should explain its reasons for the departure as required by 18

U.S.C.A. § 3553(c)(2). Id. The sentence must be “within the

statutorily prescribed range and . . . reasonable.” Id. at 547.

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Because the court made factual findings that increased

Burwell’s sentence, we find that there was plain error. Also, this

error resulted in Burwell being exposed to a longer prison term,

and therefore affects his substantial rights. Id. at 548. Because

the district court “impose[d] a sentence greater than the maximum

authorized by the facts found by the jury alone,” we find that

plain error that warrants correction. Id. at 546. Accordingly, we

vacate Burwell’s sentence and remand for resentencing.1

In conclusion, although we affirm Burwell’s convictions,

we vacate his sentence and remand for resentencing consistent with

Hughes, 401 F.3d at 546 (citing Booker, 125 S. Ct. at 764-65,

767).2 We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED IN PART,

VACATED IN PART, AND REMANDED