United States v. Kenton Harrell

629 F. App'x 603
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 27, 2015
Docket14-20664
StatusUnpublished
Cited by3 cases

This text of 629 F. App'x 603 (United States v. Kenton Harrell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kenton Harrell, 629 F. App'x 603 (5th Cir. 2015).

Opinion

STEPHEN A. HIGGINSON, Circuit Judge: *

Kenton Deon Harrell was convicted by a jury of conspiracy to interfere with commerce by robbery, and sentenced to 135 months of imprisonment and three years of supervised release. On appeal, Harrell challenges (1) the sufficiency of the evidence supporting his conviction and (2) the district court’s denial of his request for a mitigating role sentence reduction. Finding no reversible error, we affirm.

I.

On February 21, 2013, United States Postal Service contractor John Cormier had just picked up mail from two Houston post offices when his van was cut off and boxed in by two vehicles. A man carrying a firearm exited one of those vehicles and told Cormier to get out of the van. Cormier did so and ran away, though not before the man struck Cormier in the head with his gun. Having secured the postal van, the robbers proceeded to a different location to load the stolen mail into different vehicles. Although the conspirators expected the van to contain mail worth $2 million or more, its actual contents were much less valuable. Harrell was charged with a Hobbs Act conspiracy after he was interviewed by postal investigators. A jury acquitted a codefendant but found Harrell guilty. This appeal timely followed.

II.

Harrell first argues that there was insufficient evidence to support the jury’s finding that he agreed to take part in the conspiracy. Harrell moved for a judgment of acquittal at the close of the government’s case and at the close of all of the evidence, so “the standard of review in assessing his sufficiency challenge is whether, considering all the evidence in the light most favorable to the verdict, a reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt.” United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.2000). “[W]e accept ‘all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict.’ ” United States v. Jefferson, 751 F.3d 314, 320-21 (5th Cir.2014) (quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir.2011)).

There are two elements of a Hobbs Act violation: “(1) a robbery, act of extortion, or an attempt or conspiracy to rob or extort; and (2) an interference with interstate commerce.” United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir.1997). 1 To prove a conspiracy, the prosecution must show “an agreement between two or more persons to commit a crime, and an *605 overt act by one of the conspirators to further the conspiracy.” United States v. Box, 50 F.3d 345, 349 (5th Cir.1995) (citation omitted). Both the existence of a conspiracy and the agreement between particular co-conspirators may be proven by circumstantial evidence. United States v. Chaney, 964 F.2d 437, 449 (5th Cir.1992); see also United States v. Maltos, 985 F.2d 743, 746 (5th Cir.1992) (“The agreement, a defendant’s guilty knowledge and a defendant’s participation in the conspiracy all may be inferred from the ‘development , and collocation of circumstances.’ ” (citation omitted)). Although “mere presence at the crime scene or close association with conspirators, standing alone, will not support an inference of participation in the conspiracy,” “presence or association is one factor that the jury may rely on ... in finding conspiratorial activity by a defendant.” Maltos, 985 F.2d at 746 (quoting United States v. Magee, 821 F.2d 234, 239 (5th Cir.1987)).

Further, “a conviction may be based solely upon the uncorroborated testimony of an accomplice if the testimony is not incredible or otherwise insubstantial on its face.” United States v. Silva, 748 F.2d 262, 266 (5th Cir.1984). “Testimony is incredible as a matter of law only if it relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature.” United States v. Posada-Rios, 158 F.3d 832, 861 (5th Cir.1998).

Charles Ray Blake, a codefendant, testified that another coconspirator approached Harrell and asked him and Blake to find someone to stop the postal van so that it could be robbed. According to Blake, Harrell then attended several meetings held to plan the robbery, discussed with Blake the prospect of obtaining lots of money from the robbery, drove with Blake to the scene of the robbery and to the place where the proceeds were loaded into several vehicles, and expected to get something from the robbery even after it occurred. Blake’s statements were corroborated by Harrell’s own admissions to postal investigators that he agreed to help find someone to stop the postal van in exchange for twenty percent of the profits, attended several planning meetings, went to watch the robbery and transfer of stolen goods, attempted to follow the vehicles containing those goods, and felt “ripped off’ when he did not receive any proceeds. Cell phone records confirmed Harrell’s presence in the vicinity where the robbery was executed. When viewed in the light most favorable to the verdict, this evidence suffices to uphold the jury’s finding that Harrell joined a conspiracy to interfere with commerce by robbery. 2

III.

Harrell also argues that the district court erred by refusing to apply U.S.S.G. § 3B1.2, which “provides a range of adjustments for'a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt. n. 3(A). A minimal participant is one who is *606 “plainly among the least culpable of those involved in the conduct of a group” and demonstrates a “lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others.” Id, cmt. n. 4. A minor participant is any participant “who- is less culpable than most other participants, but whose role could not be described as minimal.” Id. cmt. n. 5. A minimal participant’s offense level is reduced by four levels; a minor participant’s, by two levels. U.S.G. § 3B1.2(a), (b).

For properly preserved claims, we review de novo the district court’s interpretation and application of the Sentencing Guidelines. See United States v. Cedillo-Narvaez,

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629 F. App'x 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kenton-harrell-ca5-2015.