In United States v. Smith, No. 18-13969 (July 30, 2020) (Ed Carnes, Luck, Marcus), the Court affirmed the defendant’s Hobbs Act robbery and 924(c) convictions.
First, the Court held that the district court’s finding that a photographic lineup was not unduly suggestive was not clearly erroneous. And the Court held that admission of the defendant’s rap video at trial did not violate the First Amendment or Rule 403, as it had significant probative value for contested issues of identity and display of a firearm.
Second, as to one Hobbs Act robbery conviction, the Court held that the defendant’s proposed jury instruction about how to satisfy interstate commerce element in the context of an individual (as opposed to a business) was incorrect, because it changed illustrative examples to exclusive examples. The Court also held that the evidence was sufficient to show that his robbery affected interstate commerce because he stole a thumb drive containing software that the victim used for her business, and that business was engaged in interstate commerce.
Third, and joining other circuits, the Court held that Section 403 of the First Step Act, limiting the stacking of 924(c) convictions, applies only to cases where a sentence has not yet been “imposed.” And a sentence is “imposed” when the district court enters a final judgment, not when the sentence becomes final on appeal.
Finally, the Court rejected the defendant’s challenges to his 92-year sentence. It found no Eighth Amendment violation because he robbed four people at gunpoint and caused severe injury to one, and the sentence was below the statutory maximum. The sentence was also not substantively unreasonable because all but 121 months were mandated by statute, and the court did not abuse its discretion in considering the 3553(a) factors.