967 F.3d 1196
11th Cir.2020Background
- Defendant De Andre Smith committed four violent incidents in December 2017: on Dec. 12 he assaulted and robbed Miechelle Brown (blow to eye causing loss of an eye); on Dec. 20 he carjacked Jin Chen and robbed employees at Dunkin’ Donuts and Subway, brandishing a firearm in each offense.
- Police assembled a six-photo lineup; Subway employee Alex Ralston selected Smith (70% certainty) and later made an in-court ID; Smith moved to suppress out-of-court and in-court IDs as unduly suggestive (unique two-tone dreadlocks).
- The government played Smith’s YouTube music video ("Sauce Drippin'") at trial; Brown had testified Smith previously showed her that video and that the jacket and pistol in it matched the robbery.
- A jury convicted Smith of three Hobbs Act robberies, one carjacking, and four § 924(c) brandishing offenses; the district court imposed concurrent 121-month terms on robbery/carjacking counts and consecutive § 924(c) mandatory minimums (84 months + three 300-month terms under pre–First Step Act § 924(c)(1)(C)), totaling 1,105 months.
- On appeal Smith challenged: (1) admissibility of the photo ID and the music video; (2) Hobbs Act interstate-commerce instruction and sufficiency of evidence; (3) retroactive application of the First Step Act § 403; and (4) Eighth Amendment/substantive-reasonableness of his long sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eyewitness identification admissibility | Lineup was unduly suggestive because Smith was only photo with two-tone dreadlocks; thus IDs unreliable | Lineup was not unduly suggestive and in-court ID reliable given encounter proximity | Court: lineup not unduly suggestive; admission did not violate due process |
| Admission of rap music video (First Amendment & Rule 403) | Video unfairly prejudicial and its expressive content is protected speech | Video was probative of identity, intent, and firearm appearance; not offered for ideology | Court: admission did not violate First Amendment; probative value outweighed prejudice under Rule 403 |
| Hobbs Act interstate-commerce jury instruction (Count One) | Requested instruction (limiting to Diaz’s three examples) was correct and necessary | Government: no special rule for individual victims; instruction would misstate law | Court: requested instruction misread Diaz (was non-exhaustive); refusal not an abuse of discretion |
| Sufficiency of evidence for Hobbs Act (Count One) | No sufficient proof robbery affected interstate commerce (Brown was an individual) | Robbery depleted assets of Brown’s business that purchased goods/software interstate | Court: evidence supported inference Brown’s business engaged in interstate commerce and thumb drive/software depletion satisfied Hobbs Act minimal-impact requirement |
| First Step Act § 403 retroactivity | § 403 "clarified" prior law; applies to cases pending on direct appeal; sentence not “imposed” until final | § 403(b) plain text applies only where sentence not imposed as of enactment date; sentence was imposed before Act | Court: § 403(b) is unambiguous; sentence was "imposed" when pronounced by district court pre-enactment; First Step Act does not apply |
| Eighth Amendment & substantive reasonableness | 1,105-month sentence is grossly disproportionate and substantively unreasonable | Multiple violent offenses, serious injury, statutory mandatory minima; sentence within statutory limits and court considered §3553(a) factors | Court: sentence not cruel and unusual and not substantively unreasonable; district court did not abuse discretion |
Key Cases Cited
- United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001) (framework for evaluating interstate-commerce element for Hobbs Act robberies of individuals)
- Cikora v. Dugger, 840 F.2d 893 (11th Cir. 1988) (plenary review standard for reliability of identifications)
- United States v. Perkins, 787 F.3d 1329 (11th Cir. 2015) (factors for evaluating photo-array suggestiveness)
- Simmons v. United States, 390 U.S. 377 (U.S. 1968) (standard for excluding convictions based on suggestive pretrial identification)
- United States v. Gamory, 635 F.3d 480 (11th Cir. 2011) (admission of rap video may be unduly prejudicial where relevance is minimal)
- Wisconsin v. Mitchell, 508 U.S. 476 (U.S. 1993) (admissibility of speech when used to prove elements, motive, or intent)
- United States v. Le, 256 F.3d 1229 (11th Cir. 2001) (de novo review on Hobbs Act interstate-commerce sufficiency)
- Stirone v. United States, 361 U.S. 212 (U.S. 1960) (Hobbs Act’s broad language and congressional intent to reach interference with interstate commerce)
- United States v. Castleberry, 116 F.3d 1384 (11th Cir. 1997) (minimal impact on commerce suffices for Hobbs Act)
- United States v. Pelaez, 196 F.3d 1203 (11th Cir. 1999) (sentence is "imposed" when district court enters final judgment/pronounces sentence for timing of new sentencing provisions)
- Harmelin v. Michigan, 501 U.S. 957 (U.S. 1991) (narrow proportionality principle for noncapital sentences)
- United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) (upholding long multi-count sentence against Eighth Amendment challenges)