United States v. Martinez

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1609 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

PATRICK HENRY MARTINEZ, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas

( July 29, 1994 )

Before POLITZ, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.

POLITZ, Chief Judge:

Patrick Henry Martinez appeals his convictions for obstructing

commerce by robbery, 18 U.S.C. § 1951, and for using or carrying a

firearm during a crime of violence, 18 U.S.C. § 924(c)(1). Finding

no error, we affirm.

Background

Convicted of five counts of obstructing commerce and five

firearm counts, Martinez appeals, challenging the sufficiency of

the evidence on the former counts and contending that trial on the

latter counts violated the constitutional guaranty against double jeopardy.

The evidence establishes that Martinez committed five armed

robberies in Fort Worth, Texas between July 3 and August 8, 1992.

Three of the robberies involved Diamond Shamrock convenience stores

and two involved Church's and Edmundson's fried chicken outlets.

All of these establishments sold products which were manufactured

out-of-state and which were marketed by out-of-state vendors. The

robberies by Martinez caused the temporary closure of all of the

businesses save one which previously had been robbed by Martinez

and was closed permanently.

Martinez does not suggest that he did not commit the five

armed robberies; rather, he contends that his felonious conduct did

not obstruct interstate commerce and that the firearm charges were

multiplicitous.

Analysis

We review challenges to the sufficiency of the evidence in the

light most favorable to the verdict, asking only whether a rational

juror could have found guilt proven beyond a reasonable doubt.1

Martinez insists that the government failed to prove that his

robberies affected interstate commerce; we conclude otherwise. The

impact on interstate commerce need not be substantial to satisfy

the statutory requirement of the Hobbs Act.2 If the defendant's

conduct impacts the flow of interstate products, an effect on

1 Jackson v. Virginia, 443 U.S. 307 (1979). 2 United States v. Stephens, 964 F.2d 424 (5th Cir. 1992).

2 interstate commerce occurs.3 In this case, Martinez' armed

robberies caused the interruption of commerce in several stores

dealing in out-of-state wares, resulting in the permanent closure

of one. This evidence is sufficient to support a finding that the

Martinez robberies obstructed interstate commerce.4

Martinez next contends that his concurrent prosecution for

using or carrying a firearm during a crime of violence was

multiplicitous and violated the double jeopardy clause. We are not

persuaded. The double jeopardy clause prohibits multiple

punishments for the same offense.5 Whether different statutes

punish the same offense is determined by the test announced in the

landmark Blockburger6 opinion, mandating that we scrutinize the

elements of the two statutes at issue to determine whether "each

requires proof of a fact which the other does not."7 We conclude

that the obstruction of commerce by robbery proscription, and the

firearm proscription, demand proof of different elements and

therefore constitute separate offenses.

3 United States v. Villarreal, 764 F.2d 1048 (5th Cir.), cert. denied, 474 U.S. 904 (1985). 4 See e.g., United States v. Sander, 615 F.2d 215 (5th Cir.), cert. denied, 449 U.S. 835 (1980) (purchase of out-of-state products sufficient interstate nexus); United States v. Richard, No. 93-1326 (5th Cir. Nov. 1, 1993) (unpublished opinion) (temporary closure of store following robbery sufficient interference with interstate commerce). 5 United States v. Singleton, 16 F.3d 1419 (5th Cir. 1994). 6 Blockburger v. United States, 284 U.S. 299 (1932); see also United States v. Dixon, 113 S.Ct. 2849 (1993). 7 Id. at 304.

3 The obstruction of commerce by robbery statute requires proof

of threats or force; it does not require evidence that the

defendant possessed a weapon.8 By contrast, the firearm statute

requires evidence that the defendant used or carried a weapon, but

does not require proof that the weapon was used to threaten or

force.9 Section 924(c)(1) further provides that the use or

carrying of a firearm during a crime of violence shall be punished

by imprisonment "in addition to the punishment provided for [by

the] crime of violence." As explained in Singleton, this language

underscores the congressional intent that section 924(c)(1)

punishments are to be imposed cumulatively with punishments for

underlying crimes of violence.10 Thus, both statutory comparison

and statutory construction make abundantly clear that concurrent

prosecutions for sections 1951 and 924(c)(1) violations do not

violate double jeopardy protection.

The convictions and sentences are AFFIRMED.

8 18 U.S.C § 1951 (robbery means the unlawful taking of property from another by means of force or violence). 9 See Singleton, 16 F.3d at 1423 (mere possession of firearm satisfies section 924(c)(1)). 10 Singleton, 16 F.3d at 1425.