United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50607

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Darius Letrayal King, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 6:20-CR-183-1 

______________________________

Before King, Higginson, and Willett, Circuit Judges.

Per Curiam:*

Darius Letrayal King was convicted by a jury of one count of aiding 

and abetting carjacking, in violation of 18 U.S.C. §§ 2119 & 2 (count one of 

11-count superseding indictment); two counts of aiding and abetting robbery, 

in violation of 18 U.S.C. §§ 1951(a) & § 2 (counts three and seven, Hobbs 

Act robbery); three counts of brandishing a firearm in relation to those 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 26, 2023

Lyle W. Cayce

Clerk

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No. 22-50607

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offenses, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (counts two, four, and 

eight); and one count of possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. § 922(g)(1) (count nine). He was sentenced to a total 

of 427 months of imprisonment and a total of five years of supervised release.

On appeal, he argues that the evidence is insufficient to support his 

conviction for carjacking and both convictions for robbery. He further argues 

that, because he could not have been convicted of those offenses, his 

convictions for brandishing a firearm predicated on those offenses must be 

set aside. Additionally, he argues that the written judgment conflicts with 

the oral pronouncement of sentence because it included a special search 

condition of supervised release that he asserts was not pronounced at 

sentencing.

Because King preserved his challenges to the sufficiency of the 

evidence, we review his challenges de novo, determining whether “after 

viewing the evidence and all reasonable inferences in the light most favorable 

to the [Government], any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” United States v. VargasOcampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citing Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). Our review is highly deferential to the 

jury’s verdict. See United States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013). 

The question on appeal is not whether the jury’s verdict was correct but 

whether it was rational. United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th 

Cir. 2005).

With respect to his challenge to his carjacking conviction, King argues

that the Government failed to provide sufficient evidence to prove one

essential element of the offense: that he intended to cause death or serious 

bodily injury to the victim, Terrance West. He also urges us to adopt a 

“brandishing-plus” standard, under which the Government must provide 

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evidence that a weapon, if brandished during a carjacking, was loaded or some 

other evidence showing that the defendant had a specific intent to cause 

death or serious bodily injury. We do not reach this argument, however, as

the record reflects that the Government provided sufficient evidence from 

which a jury could have found that King “would have at least attempted to 

seriously harm or kill the driver if doing so had been necessary to complete 

the taking of the car.” See United States v. Frye, 489 F.3d 201, 209 (5th Cir. 

2007) (internal quotation marks and citation omitted). The jury heard 

testimony that King took West’s keys and, after getting into the driver’s seat, 

pointed a handgun at West, cocked the gun, and threatened to kill West as

West protested King’s taking of his vehicle. That evidence, together with

the testimony of King’s accomplice, Corey Jackson, was sufficient to permit 

a rational jury, drawing reasonable inferences from the evidence, to find the 

requisite nexus between the taking of the car and the requisite intent to cause 

death or serious bodily harm. See United States v. Harris, 420 F.3d 467, 475 

(5th Cir. 2005). Based on the evidence, the jury could have reasonably 

inferred that King had the requisite intent to shoot or seriously harm West if 

West tried to stop him from completing the taking of the vehicle at the 

moment of the taking. See id. In drawing that inference, the jury was free to 

choose among any reasonable construction of the evidence, see United States 

v. Meza, 701 F.3d 411, 422-23 (5th Cir. 2012), and “retain[ed] the sole 

authority” to evaluate the credibility of West and Jackson and to weigh their 

testimony, see United States v. Holmes, 406 F.3d 337, 351 (5th Cir. 2005). The 

jury’s verdict was rational in light of the record. See Lopez-Urbina, 434 F.3d 

at 757.

Because the evidence is sufficient to show that King committed 

carjacking under § 2119, and because carjacking is a crime of violence, King

cannot show that his conviction for brandishing a firearm in connection with 

that offense should be overturned based on the argument presented. See 

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Frye, 489 F.3d at 209-10. Accordingly, his conviction and sentencing for 

carjacking and brandishing a firearm in connection with carjacking are 

AFFIRMED.

Next, King argues that the evidence is insufficient to prove that he 

aided and abetted the robberies of the 7-Eleven and Family Dollar store. He 

also argues that the evidence was insufficient to show that the robberies of 

the two local stores had the requisite effect on interstate commerce.

The Hobbs Act imposes criminal penalties on anyone who “in any 

way or degree obstructs, delays, or affects commerce or the movement of any 

article or commodity in commerce, by robbery or extortion or attempts or 

conspires so to do, or commits or threatens physical violence . . . in 

furtherance of a plan or purpose to” violate this section. 18 U.S.C. § 1951(a). 

To satisfy the jurisdictional element of § 1951(a), the Government must show 

that the defendant’s unlawful activity caused a “minimal effect on interstate 

commerce.” United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997).

King does not argue that there was insufficient evidence to show that 

the robberies caused a minimal effect on interstate commerce; instead, he 

argues that in establishing whether conduct affects commerce for purposes 

of the Hobbs Act, the Government must show that the conduct had a 

substantial effect on interstate commerce. As he concedes, that argument is 

unavailing in light of this court’s precedent. See Robinson, 119 F.3d at 1208 

(holding that the Government does not need to prove that the effect was 

substantial and concluding that “[i]t suffices to show a slight effect in each 

case, provided that the defendant’s conduct is of a general type which, 

viewed in the aggregate, affects interstate commerce substantially”); United 

States v. Ferguson, 211 F.3d 878, 886 n.5 (5th Cir. 2000) (noting that the de 

minimus impact on interstate commerce can be shown by evidence that 

robbed stores carried items that came from out of state); see also United States 

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v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002) (holding that one panel of 

this court may not overrule another absent en banc reconsideration or 

superseding contrary Supreme Court decision). Further, any rational juror 

could have found beyond a reasonable doubt that King aided and abetted the 

robberies based on the evidence presented, when viewed in the light most 

favorable to the Government. See Vargas-Ocampo, 747 F.3d at 301.

Because the evidence is sufficient to show that King took affirmative 

actions in furtherance of the robberies with the intent of facilitating the

robberies, his robbery convictions are AFFIRMED. Given that his sole 

challenge to the related firearm offenses of brandishing a firearm in relation 

to crimes of violence rests on his argument that there was insufficient 

evidence that he committed the predicate offenses, his firearm convictions

likewise are AFFIRMED.

For the first time on appeal, King argues that the district court failed 

to properly pronounce the special, discretionary search condition of 

supervised release. Because the challenged special search condition is not 

required by 18 U.S.C. § 3583(d), it is discretionary, and its pronouncement 

at sentencing was required. See United States v. Diggles, 957 F.3d 551, 559

(5th Cir. 2020) (en banc).

The inclusion of the special condition in the presentence report

(PSR), which King affirmed he reviewed and which the district court 

adopted, was sufficient to provide King with notice such that our review is 

for plain error only. See United States v. Martinez, 47 F.4th 364, 366-67 (5th 

Cir. 2022); Diggles, 957 F.3d at 560-62. We addressed a similar challenge to 

an identical search condition in United States v. Grogan, 977 F.3d 348, 350-52 

(5th Cir. 2020), and we conclude, consistent with the reasoning in Grogan, 

that King failed to show a clear or obvious error that affected his substantial 

rights, see id. at 353; Puckett v. United States, 556 U.S. 129, 135 (2009). 

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However, we have sua sponte identified an error with the sentence 

imposed for his conviction on count nine, possession of a firearm by a 

convicted felon, in violation of § 922(g)(1). Since June 25, 2022, violations 

of § 922(g)(1) have a statutory maximum of 15 years under § 924(a)(8). 

18 U.S.C. § 924(a)(8). However, from December 21, 2018, through June 24, 

2022, violations of § 922(g)(1) were penalized under § 924(a)(2) and carried 

a 10-year statutory maximum term of imprisonment. See § 924(a)(2) (2019). 

King committed the offense of conviction in January 2020. The PSR reflects 

that the maximum term of imprisonment for count nine is 10 years, and the 

district court noted, at the outset of the sentencing hearing, that the statutory 

maximum for count nine was 10 years. However, the district court went on 

to pronounce concurrent sentences of 175 months on counts one, three, 

seven and nine, notwithstanding that the maximum sentence it could impose 

on count nine was 120 months. The judgment also reflects a 175-month 

sentence for count nine.

While King’s total sentence is not affected, his sentence for the 

§ 922(g) offense exceeds the 10-year statutory maximum in effect at the time 

the offense was committed. See United States v. Smith, 869 F.2d 835, 836-37 

(5th Cir. 1989). Because the imposition of a sentence exceeding the statutory 

maximum is an illegal sentence and constitutes plain error, see United States 

v. Sias, 227 F.3d 244, 246 (5th Cir. 2000), we VACATE King’s sentence on 

count nine, possession of a firearm by a convicted felon, and REMAND the 

case for resentencing on this count within the statutory maximum sentence.

In all other respects, the judgment of the district court is 

AFFIRMED.

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