US v. Carter Tillery

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:10-cr-00223-JRS-1. Paper copies to all parties and the district court/agency. [999006704]. [11-4819]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARTER TILLERY,
Defendant-Appellant.

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No. 11-4819

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Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(3:10-cr-00223-JRS-1)
Argued: October 24, 2012
Decided: December 19, 2012
Before WILKINSON, GREGORY, and DUNCAN,
Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.

COUNSEL
ARGUED: Charles D. Lewis, Richmond, Virginia, for
Appellant. Jessica Aber Brumberg, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Vaughan C. Jones, JOHNSON &

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JONES, LLP, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.

OPINION
GREGORY, Circuit Judge:
Carter Tillery appeals his jury conviction of a Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a), and using, carrying, and brandishing a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). He also challenges
his sentence, arguing he was improperly sentenced as a career
offender. For the following reasons, we affirm.
I.
On the morning of August 1, 2009, the Petersburg, Virginia
branch of Swan Dry Cleaners was robbed at gun-point. An
unmasked man entered Swan Dry Cleaners and approached
Anna Cho, the only employee working at the time. He brandished a firearm, stole Cho’s personal computer, and emptied
$40-$100 from the cash register. He ordered Cho to the back
of the store and directed her to strip to her underwear and
kneel on the ground while he used a telephone cord to tie her
hands.1 The robber went to the front of the store and then
returned to where Cho was located wearing a ski mask. He
told Cho to count to 100 and afterwards call the police. In the
interim, the robber fled the store. In total, the robber was in
Swan Dry Cleaners for approximately ten to fifteen minutes.
Once the robber left the store, Cho freed herself and ran to
the barbershop next-door for help. A barber called the police
and when the police arrived they took Cho’s statement. Cho
1

DNA samples taken from the cord proved inconclusive.

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described the robber as a six-foot tall black male with a slim
build and short hair. She said he possibly had facial hair and
might have been wearing glasses.2 Cho also believed her
assailant either had "some missing teeth in the front" or that
there was a "large gap between his teeth," and in her opinion,
had a dark complexion for an African American.
Later that month, a man came into the barbershop and sold
a laptop for $150 to the barbershop owner, Derrick Pulliam.
Pulliam had seen the seller on two prior occasions. In September, Petersburg police officer Detective Harris investigated
reports that a laptop had been sold at the barbershop. Pulliam
presented the laptop to Detective Harris, who discovered it
was the same laptop stolen from Cho. Detective Harris
showed Pulliam a sequential photo array of potential persons
who might have sold him the laptop, and Pulliam identified
Carter Tillery from the array. Two days later, Detective Harris
returned the laptop to Cho and showed her the same photo
array, from which she identified Tillery as the robber.3
In mid-December 2009, spurred by confidential information, Detective Harris went to two adjacent motels in Prince
George County. One motel was operational while the other
was not. Detective Harris found two shotguns in the defunct
motel,4 and learned that Tillery resided at the adjacent operational motel from March to August 2009. At the time of the
search Tillery was incarcerated for unrelated charges.
In June 2010, while still incarcerated for unrelated charges,
Tillery spoke to his cellmate, Jason Pullery, about the robbery. In shocking detail, Tillery told Pullery that he robbed a
2

Cho later testified that the perpetrator was not wearing glasses.
Cho further identified Tillery as the robber at a February 2010 preliminary hearing and during the December 2010 trial.
4
Tillery’s DNA was not found on the firearms. Cho testified that one of
the guns found was consistent with the gun used in the course of the robbery, although she was not sure if it was the same gun.
3

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dry cleaners, forced the only female clerk working at the time
to strip, stole her laptop, and later sold the laptop at a barbershop. Tillery also told Pullery that he used a sawed-off shotgun in the course of the robbery, hid the gun in a "shut-down
hotel," and later sent his brother to wipe any fingerprints off
the shotgun.
Based on this information, a grand jury indicted Tillery on
August 4, 2010, on two counts: (1) Hobbs Act robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a);
and (2) using, carrying, and possessing a firearm in relation
to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Tillery was arrested pursuant to the indictment on August 12, 2010.5 On December 14 and 15, 2010, a
jury trial was held and Tillery was convicted of both counts.
And on August 1, 2011, Tillery was sentenced to 240 months
for the robbery and 120 months for the firearms charge to run
consecutively for a total of 360 months, followed by five
years of supervised release. Tillery now appeals both his conviction and his sentence.
II.
First, Tillery challenges the jurisdictional element of his
Hobbs Act robbery conviction. He argues that because he
only stole $40-$100 from Swan Dry Cleaners that the robbery
in question did not have a "minimal effect" on interstate commerce. Second, he submits that even if the jurisdictional element is satisfied, there was insufficient evidence for the jury
to find him guilty of the offense.
A.
The Hobbs Act prohibits robbery or extortion that "in any
way or degree obstructs, delays, or affects commerce or the
5

On October 19, 2010, the grand jury returned a superseding indictment
alleging the same two counts with minor changes to the pleadings.

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movement of any article or commodity in commerce." 18
U.S.C. § 1951(a). Thus, the two elements of a Hobbs Act
crime are: (1) robbery or extortion, and (2) interference with
commerce. Stirone v. United States, 361 U.S. 212, 218
(1960). And because "Congress exercised the full extent of
[its] authority . . . to punish interference with interstate commerce," we have held that the Hobbs Act’s jurisdictional
predicate is satisfied where the instant offense has a "minimal
effect" on interstate commerce. United States v. Williams, 342
F.3d 350, 354 (4th Cir. 2003) (citing United States v.
Spagnolo, 546 F.2d 1117, 1119 (4th Cir. 1976)).
Our precedent is clear—a robbery has a "minimal effect"
on interstate commerce when it depletes the assets of an "inherently economic enterprise." See Williams, 342 F.3d at 355;
United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir. 1990).
When determining whether a robbery had a minimal effect on
interstate commerce, we do not look at the impact of the
immediate offense, but "whether the relevant class of acts has
such an impact." Williams, 342 F.2d at 355 (citing United
States v. Marrero, 299 F.3d 653, 655 (7th Cir. 2002)). The
impact on commerce may be shown by "proof of probabilities
without evidence that any particular commercial movements
were affected." United States v. Brantley, 777 F.2d 159, 162
(4th Cir. 1985).
The government put on more than enough evidence to
show Swan Dry Cleaners had an interstate commerce connection. The branch which Tillery robbed was part of a larger
network of cleaners. For the enterprise as a whole to operate,
Swan Dry Cleaners had to purchase most of its supplies from
out-of-state, which included purchasing cleaning solvents
from Illinois; hangers from Alabama, Mexico, Vietnam, and
China; spotting chemicals from Illinois and Missouri; gown
boxes from Illinois; detergent from North Carolina; starch
from Missouri; boiler conditioner from Illinois; and plastic
garment bags from South Carolina. Additionally, there was
testimony that the Petersburg branch used an out-of-state

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credit card processor and telephone company. Viewed in the
aggregate, it is clear that robbing a place of business, especially Swan Dry Cleaners—which necessarily relies on outof-state suppliers to operate—has an interstate commerce connection. Therefore, when Mr. Tillery stole money from Swan
Dry Cleaners’ cash register, depleting an inherently economic
enterprise of its assets, the Hobbs Act jurisdictional requirement was satisfied.
This finding is consistent with our previous holdings. We
held in United States v. Singleton that a "business that purchase[s] a substantial portion of its inventory . . . from out-ofstate suppliers" is engaged in interstate commerce for purposes of the Hobbs Act. 178 F. App’x 259, 262 (4th Cir.
2006) (unpublished); accord United States v. Guerra, 164
F.3d 1358, 1361 (11th Cir. 1999) (holding that robbery of
$300 from a branch store that was part of a national chain that
purchased its inventory from out-of-state satisfied the Hobbs
Act’s jurisdictional element). There is also a much stronger
nexus with interstate commerce in this instance than in some
of our prior holdings in which we have found the Hobbs Act’s
jurisdictional requirement was satisfied. See, e.g., Williams,
342 F.3d at 355 (robbing a drug dealer affects interstate commerce); United States v. Mohamadi, 461 F. App’x 328, 33536 (4th Cir. 2012) (unpublished) (robbing a prostitute affects
interstate commerce). By comparison, it would violate the
principles of common sense to find that robbing a legitimate
place of business would not have even a minimal effect on
interstate commerce, especially when we have to view such
activities in the aggregate.
Tillery raises a number of policy arguments as to why the
Court should not find the robbery met the jurisdictional
requirement. But ultimately, policy does not trump precedent.
Tillery argues that the small amount of money stolen from
Swan Dry Cleaners cannot be said to have had even a minimal effect on interstate commerce. We have never held, however, that the depletion of assets theory has a dollar-amount

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minimum. We only look at whether an inherently economic
enterprise is depleted of its assets, not at the amount of assets
depleted. Tillery further argues that if the Court finds the robbery in question affected interstate commerce that every time
a place of business is robbed the perpetrator could be prosecuted under the Hobbs Act. While we find it unnecessary to
reach this hypothetical, we do reiterate that Congress exercised its broad and far-reaching Commerce Clause powers
when passing the Hobbs Act. While some robberies prosecuted under the Hobbs Act may essentially be "state crimes"
better prosecuted at the state level, we are not policy-makers
nor do we have power over prosecutorial efficiency. We only
look at whether the jurisdictional predicate is satisfied, which
in this case it undoubtedly was.
B.
Tillery also argues there was not enough evidence to support his conviction. In reviewing the sufficiency of the evidence, we construe "the evidence in the light most favorable
to the government and inquire whether any rational trier of
fact could find the essential elements of the crime beyond a
reasonable doubt." United States v. Lentz, 383 F.3d 191, 199
(4th Cir. 2004) (internal citation and quotation marks omitted). Tillery’s argument centers on Ms. Cho’s conflicting
statements about his appearance, and the fact that her in-trial
identification was allegedly central to the jury finding that he
was guilty.6 Tillery’s argument belies the record.
6

Specifically, Tillery cites that Cho said her assailant had short hair and
a "widow’s peak," while Tillery had corn-rows; Cho said her assailant was
"six-foot one or six-foot two," while Tillery is five-foot ten inches tall;
Cho said her assailant had a dark complexion, while Tillery has a light
complexion; Cho gave conflicting testimony on whether her assailant was
wearing glasses; and Cho only saw her assailant for less than 10 minutes,
during which she often had her back to him. Tillery also points to the fact
that over a year transpired between the robbery and Cho’s in-court identification.

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Tillery ignores the fact that Cho identified him on two other
occasions outside of trial—from a sequential photo array the
same month of the robbery and again at the preliminary hearing. Even without Cho’s identification, Tillery leaves out that
barbershop owner Derrick Pulliam identified Tillery as selling
him Cho’s stolen laptop. Moreover, Tillery completely overlooks the damning testimony of his cellmate Jason Pullery, to
whom he confessed the entire robbery in excruciating detail.
There is more than enough evidence on the record to support
Tillery’s conviction.
III.
Tillery next challenges the district judge’s delivery of the
jury instructions. Because Mr. Tillery did not object to the
jury instructions at trial, we review the instructions for plain
error. Puckett v. United States, 556 U.S. 129, 135 (2009); see
also United States v. Wallace, 515 F.3d 327, 332 (4th Cir.
2008). Tillery argues that the district judge’s instructions
"clearly left the jurors with the impression that anything short
of a unanimous verdict would reflect negatively on the competency of their deliberations." Appellant’s Br. 18-19. Specifically, he quarrels with the district judge’s admonishment that
a mistrial would be "very bad . . . you all would go home but
I would have to do this again. That would be very bad." Tillery contends that this statement "encouraged jurors to surrender personal convictions to the will of the majority." Id.
To be sure, certain instructions may go "beyond the permissible limits to which a court may go in its endeavor to influence the jury toward the rendition of a verdict." United States
v. Mitchell, 720 F.2d 370, 372 (4th Cir. 1983) (internal citation and quotation marks omitted). As such, jury instructions
in which the district judge overemphasizes the importance of
unanimity have troubled us in the past. See, e.g., United States
v. Rogers, 289 F.2d 433, 435 (4th Cir. 1961); United States
v. Sawyers, 423 F.2d 1335, 1342-43 (4th Cir. 1970). But when
reviewing jury instructions, we do not "view a single instruc-

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tion in isolation." United States v. Lighty, 616 F.3d 321, 366
(4th Cir. 2010). We view an allegedly erroneous instruction
in its full context. Id.
In the case at hand, it is not clear that the instruction now
objected to by Tillery was erroneous. When the challenged
instruction is read in its context, the district judge told the jury
"to never tell us how you stand," as that would result in a mistrial. This instruction was in accordance with our ruling in
United States v. Penniegraft, where we asserted that
"[u]nquestionably, it is plain error for a trial judge to inquire
as to the numerical division of a jury." 641 F.3d 566, 575 (4th
Cir. 2011). While the district judge may have taken some liberties when delivering the jury instructions, based on our
reading of the record he did not commit plain error.
IV.
Tillery finally argues that he was improperly sentenced as
a career offender under the United States Sentencing Commission Guidelines Manual. See U.S.S.G. § 4B1.1(a). Under
§ 4B1.1(a), a defendant qualifies as a career offender if,
among other things, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled
substance offense." Id. The district court found that Tillery
had two qualifying prior convictions for crimes of violence:
robbery and use of a firearm in the commission of a felony,
and eluding police. Tillery argues that eluding police is not a
crime of violence, and therefore the district court erred by
including this conviction when determining whether he qualified as a career offender.
We recently held in United States v. Hudson that "intentional vehicular flight in any manner poses a potential level
of risk that is sufficient to render the offense a violent felony."
673 F.3d 263, 268 (4th Cir. 2012) (emphasis in the original).
The Hudson Court reached this conclusion by extending the
rationale employed by the Supreme Court in Sykes v. United

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States, in which the Court held that Indiana’s felony vehicular
flight statute constitutes a crime of violence, as "[r]isk of violence is inherent to vehicle flight." 131 S. Ct. 2267, 2274
(2011). Based on Sykes, the Hudson Court concluded intentional vehicular flight from law enforcement necessarily
encompasses an "inherent risk" of violence. Hudson, 673 F.3d
at 268.
To be found guilty under Virginia’s eluding police statute
a person must willfully and wantonly disregard a police officer’s signal while driving. See Va. Code Ann. § 46.2-817.
Because Virginia’s statute requires intentional vehicular flight
from a police officer, Hudson’s rationale controls. Prior to
Hudson, Tillery may have had a viable argument that Virginia’s eluding police statute differed from the Indiana statute
interpreted by the Supreme Court in Sykes; this argument was
foreclosed by our holding in Hudson.
V.
In accordance with the foregoing, we affirm Carter Tillery’s conviction and sentence.
AFFIRMED