17-786-cr United States v. Harris 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthous e, 40 Foley Square, in the City of New York, on the 28 th day of February, two thousand eighteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges

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--------------- --------------- --------------- --------------- ---------- U NITED S TATES OF A MERICA , Plaintiff-Appellee , v. No. 17-786-cr
J EREMY W. H ARRIS , Defendant-Appellant

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For Appellant: John A. Kuchera, Waco, Texas. For Appellee: Monica J. Richards, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

### 2 Appeal from a judgment of the United States Di strict Court for the We stern District of New York (Wolford, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant Jeremy W. Harris (“Harris”) appeals from the judgment of the district court convicting him, after pleading guilty pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, of one count of Hobbs Act robb ery, in violation of 18 U.S.C. § 1951(a). On appeal Harris argues that the district court lack ed subject matter jurisdiction in his case because the Information charging him with a violation of 18 U.S.C. § 1951 does not allege that his conduct had a substantial effect on interstate commer ce. Likewise, Harris claims that there are insufficient facts to support his guilty plea becau se the theft of a can of beer and a package of cigarettes from a 7-Eleven conve nience store does not have a subs tantial effect on interstate

commerce. We review the sufficiency of a charging instrument de novo

. United States v. Geibel , 369 F.3d 682, 698 (2d Cir. 2004). When, as in this cas e, the defendant fails to object to a purported Rule 11 violation before the district court, we review for plain error. United States v. Youngs , 687 F.3d 56, 59 (2d Cir. 2012). In so doing, we assume the parties’ familiarity with the facts and record of the prior proceedings, which we refere nce only as necessary to explain our decision to affirm the district court’s decision.
I. The Sufficiency of the Information “In order to sustain a challeng e to the district court’s juri sdiction, the defendant who has pleaded guilty must establish that the face of the [charging instrument] discloses that the count or

### 3 counts to which he pleaded guilty failed to charge a federal offense.” Hayle v. United States , 815 F.2d 879, 881 (2d Cir. 1987). Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that an information contain a “plain, concise, and definite written statemen t of the essential facts constituting the offense charged.” In a Hobb s Act prosecution, we do not require that an information “specify the precise nature of the e ffect upon interstate commerce that the government intends to prove at trial.” United States v. Alfonso , 143 F.3d 772, 776 (2d Cir. 1998). Rather, a charging instrument is sufficient so long as it (1) “contains the elements of the offense charged and fairly informs a defendant of the charge against which he mu st defend” and (2) “enables him to plead an acquittal or convi ction in bar of future prosecutions for the same offense.” Hamling v. United States , 418 U.S. 87, 117 (1974). Here, the Information specifies that Harri s robbed a 7-Eleven on August 19, 2015. The Information alleges that Harris “did unlawfully obst ruct, delay and affect, a nd attempt to obstruct, delay and affect, commerce” by robbery, in viol ation of 18 U.S.C. § 1951. The Information further specifies that Harris’s crime involved theft of commercial goods from a commercial establishment. The Information, therefore, was sufficient to provide the district court subject matter jurisdiction because it cont ains the essential elements of a Hobbs Act robbery and contains enough detail to enable Harris to prepare for his defense and to bar future prosecutions for the same conduct.
II. Rule 11 Violation Harris claims that there were insufficient facts to support his guilty plea because the theft of a beer and a package of cigarettes from a 7-Eleven does not have a substantial effect on

### 4 interstate commerce. 1 In his view, if his crime “comes with in the ambit of the Hobbs Act, then the Hobbs Act has completely swallowed every lo cal robbery in America.” Appellant’s Br. at
17. The Hobbs Act makes it unlawful “in any way or degree” to obstruct, delay, or affect “commerce or the movement of any article or co mmodity in commerce, by robbery or extortion . . . .” 18 U.S.C. § 1951(a). In a Hobbs Act pros ecution, the requirement th at the robbery affect interstate commerce is an element of the offens e charged and jurisdicti onally “critical” because federal jurisdiction rests on interference with interstate commerce. Stirone v. United States , 361 U.S. 212, 218 (1960). Importantly, however, the government’s burden in proving a nexus to interstate commerce is minimal. United States v. Shareef , 190 F.3d 71, 75 (2d Cir. 1999). The Hobbs Act “regulates activities which, in the aggr egate, have a substantia l effect on interstate commerce; hence, the ‘ de minimis character of individual instan ces arising under [the] statute is of no consequence.’” United States v. Elias , 285 F.3d 183, 188 (2d Cir. 2002) (quoting United States v. Leslie , 103 F.3d 1093, 1100 (2d Cir. 1997)). Indee d, the government may establish an interstate nexus by introducing ev idence that the robbery was of a business that purchases commodities that travel “in interstate commerce.” United States v. Jones , 30 F.3d 276, 285 (2d Cir. 1994). Likewise, we have held that the robbery of a local en terprise may aff ect interstate commerce “if the robbery impairs the ability of th e local enterprise to acq uire—whether from outof-state or in-state suppliers—goods origin ating out-of-state.” Elias , 285 F.3d at 189.

1 In entering into the Rule 11(c)(1)(C) plea agreem ent, Harris agreed to waive his right to appeal or collaterally attack his senten ce. This waiver does not affect our Rule 11 analysis because we do not strictly enforce appeal waivers where the de fendant alleges an insufficient factual basis for the plea. United States v. Adams , 448 F.3d 492, 497 (2d Cir. 2006).

### 5 In this case, the factual basis supporting Harris’ s plea demonstrates that his crime affected interstate commerce. In pleading guilty, Harris accep ted that he stole a can of beer and a package of cigarettes from a 7-Eleven convenience store. He agreed that 7-Eleven operates stores all over the country and that 7-Eleven purchases goods to stock its sh elves from vendors located both within and outside of New York. On these fact s, the government established a sufficient nexus between Harris’s crime and interstate commerce. We have considered Harris’s remaining argumen ts on appeal and find them to be without merit. We AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court