I.
In Oсtober 1992, L.C. Gipson and some of his friends robbed and attempted to rob several franchise fried chicken restaurants in Fort Worth. In January 1993, Gipson was charged in a seven-count indictment with conspiracy under 18 U.S.C. §§ 1951 and 1952, three substantive counts of obstructing interstate commerce under §§ 1951 and 1952, and three counts of using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). 1
Gipson was convicted at a jury trial of all seven counts. The district court sentenced him to 210 months on each of counts 1, 2, 4, and 6, to run concurrently; 60 months on count 3, to run consecutively to the sentences on counts 1, 2, 4, and 6; 240-month terms on each of counts 5 and 7, to run cоnsecutively *474 to all other counts in the indictment; a concurrent three-year term of supervised release on counts 1 through 7; and the $350 mandatory special assessment. Gipson appealed, challenging the sufficiency of the indictment’s allegation of an effect on interstate commerce and several aspects of the district court’s application of the Sentencing Guidelines.
II.
A.
Gipson asserts thаt the government failed to charge in the indictment that his crimes affected interstate commerce, and therefore failed to show jurisdiction under
Stirone v. United States,
The indictment charged Gipson with Hobbs Act viоlations, specifying that he had robbed several franchise fried chicken restaurants, and asserted, in the language of the Hobbs Act, that these robberies had affected interstate commerce.
2
We review the sufficiency of an indictment
de novo,
finding it constitutionally sufficient if it embraces each
prima facie
element of the charged offense, notifies the defendant of the charges, and provides him with a double jeopardy defense against future prosecutions.
United States v. Nevers,
This circuit has upheld indictments worded like the one at issue. In а RICO context, we explained:
In this indictment, an explicit discussion of the enterprise’s effect on interstate commerce would contribute virtually nothing to defendants’ understanding of the nature of the offenses chаrged.... We find no indication ... that defendants were surprised or in any way prejudiced by the generality of the interstate commerce allegation or evidence subsequently introduced to establish it. The indictment was, thеrefore, sufficient.
United States v. Diecidue,
Diecidue is not deciduous, it lives on as perennial precedent until pruned by higher authorities. The ratio decidendi of the “non-deeiduous” Diecidue controls our decision here. An indictment which alleges the interstate commerce element of a federal offense in eonclusory terms, without setting forth evidentiary detail, is not insufficient.
United States v. Williams,
Gipson argues that we should not follow
Diecidue
and
Williams
because they conflict with
Stirone
and
United States v. Summers,
In
Summers,
we were concerned with whether the jury charge on interstate commerce usurped the jury’s factfinding authority; sufficiency of the indictment was not at issue. In
Stirone,
a variance between the pleading and proof at trial had allowed the defendant to be convicted on a different theory of the effect on interstate commerce from the one alleged in the indictment.
Stirone,
We find Gipson’s alternative argument — that the government should have
*475
been required to provide a bill of particulars — to have been abandoned.
See Yohey v. Collins,
B.
At the age of seventeen, Gipson was convicted, as an adult, of two counts of aggravated robbery in Texas court. On each conviction, he received a sentence of greater than one year аnd one month. Gipson argues that the court erred by including theses sentences, imposed on December 16, 1981, in the calculation of his status as a career offender under U.S.S.G. § 4B1.1. Specifically, Gipson argues that thе court wrongly applied § 4A1.2(e)(l) to his prior convictions where § 4A1.2(e)(4) was controlling.
As Gipson’s minority convictions fall within the plain language of § 4A1.2(d)(1), § 4A1.2(d)(2) simply is not relevant. Guideline § 4A1.2(d)(l), applying to “offenses committed prior to age eighteen,” adds three points to the criminal history score for each time a defendant was convicted as an adult (as Gipson was) and received a sentence of imprisonment exceеding one year and one month (as Gipson did). Section 4A1.2(d)(2), which Gipson argues should be applied through § 4A1.2(e)(4), plainly pertains only to minority convictions not covered by § 4A1.2(d)(1) (e.g., juvenile convictions or convictions for which defendant received a sentence of one year and one month or less). The applicable time period for Gipson’s juvenile Texas aggravated robbery convictions is therefore fifteеn years, as specified in § 4A1.2(e)(1). Accordingly, the district court did not err in considering these minority convictions in the calculation of Gipson’s criminal history score.
c.
Gipson argues that the court violated the Ex Post Faсto Clause by not applying the 1991 version of § 4B1.2(3). Gipson was sentenced on October 20, 1993. Accordingly, the November 1992 Guidelines, effective from November 1, 1992, until October 31, 1993, are applicable to his convictions absent an
ex post facto
problem.
United States v. Gonzales,
Gipson is mistaken. The 1991 Guidelines would nоt have provided him with a shorter sentence. Both the 1991 and 1992 Guidelines require, for a defendant to be sentenced as a career offender, that he be at least eighteen years of age, that the instant оffense be a crime of violence or a controlled substances offense, and that he have at least two prior felony convictions of either a crime of violence or a controllеd substance offense. U.S.S.G. § 4B1.1. The sole difference between the two Guidelines versions arises in their definitions of the term “two prior felony convictions,” as used in § 4B1.1.
Both definitions require that the defendant committed the instant оffense subsequent to sustaining at least two felony convictions of any combination of crimes of violence and drug offenses, and that the sentences for at least two of those felony convictions arе counted separately under the provisions of § 4Al.l(a), (b), or (c). The sole difference between the two provisions is that while the 1991 Guidelines specify that “the date that a defendant sustained a conviction shаll be the date the judgment of conviction was entered,” the 1992 Guidelines state that “the date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty рlea, trial, or plea of nolo contendere.” U.S.S.G. § 4B1.2(3) (Nov.1991) and (Nov. 1992), respectively.
A common-sense reading of § 4B1.2(3) reveals that the purpose of the last sentence of
*476
both versions is intended to define the word “sustained” in the first sentence of the paragraph.
United States v. Salazar,
No. 93-1208, slip op. at 5,
D.
Gipson challenges the finding that his seven prior robbery convictions were not “related” to one another under § 4A1.2 application note 3. For Gipson to qualify as a career offender, two or more of his prior convictions must be counted separately under § 4Al.l(a), (b), or (c). The Guidelines specify that sentences flowing from related cases are to be treated as one sentence for purposes of § 4Al.l(a), (b), and (c). U.S.S.G. § 4A1.2(a)(2).
Therefore, if all of his prior offenses were related to eaсh other, Gipson does not qualify as a career offender. Relatedness is defined in both years’ Guidelines in Application note 3 to § 4A1.2, which specifies:
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (ie., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considеred related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.... Where prior related sentences result from convictions of crimes of violence, § 4Al.l(f) will apply.
U.S.S.G. § 4A1.2, application note 3.
Gipson attempts to prove that his prior offenses were consolidated by referencing § 4B1.2(3) of the 1991 Guidelines, whiсh states that a conviction is sustained on the date the judgment of conviction is entered. He argues that because his seven prior robbery convictions were all “sustained” on the same day, they were “cоnsolidated.”
Gipson provides no legal support for this argument. All but two of the robberies had separate case numbers when they went to trial and judgment, which indicates that at most the two robberies sharing the same case number had been consolidated for judgment. Accordingly, we find that there were at least six unconsolidated convictions, providing ample basis for a career offender enhancement. Even if we аgreed with Gipson that his cases had been consolidated, we note that his career offender enhancement would still stand on the basis of his minority convictions.
E.
Gipson argues that his convictions under 18 U.S.C. § 924(c) and the Hоbbs Act violate the Double Jeopardy Clause. While candidly conceding that his argument is foreclosed by current Fifth Circuit law, Gipson briefed the issue to preserve it for potential Supreme Court review. We reiterate our holding that convictions for both do not violate the Double Jeopardy Clause.
See, e.g., United States v. Gonzalez,
AFFIRMED.