OPINION
In July 2006, Thоmas Reyes attempted to rob a grocery store in Philadelphia. A
We reject each of these challenges, and therefore afirnn.
I.
The Gomez Grocery is located in the Germantown section of Philadelphia. The store is open to out-of-state customers, and much of its inventory is deliverеd from other states (including New Jersey, North Carolina, and Virginia). The store also has an ATM machine on premises. On July 16, 2006, Reyes attempted to rob the store with a loaded, 9 mm. semiautomatic pistol.
Around noon, Reyes entered the store. He was wearing gloves and glasses, as well as a bandana that covered his face. Reyes locked the front door, drew his pistol, and announced that it was a “stick up.” From there, he ordered customers and employees to drop to the floor. When Reyes leapt on the counter to reach the register, the store manager and an employee attempted to stop him. Reyes fired his gun several times during the struggle. He was ultimately subdued and arrested.
During the inсident, various items were knocked from the shelves. In the end, the grocery store closed for the remainder of the workday — approximately eight hours.
II.
In November 2006, a grand jury returned a three-count indictment against Reyes, charging him with one count each of: 1) Hobbs Act robbery; 2) carrying and using a firearm during and in relation to a crime of violence (in violation of 18 U.S.C. § 924(c)(1)); and 3) possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). Reyes’s jury trial began in August 2007. At trial, he did not object to the indictment, the trial court’s jury instructions, or the constitutionality of the Hobbs Act. Following a three-day trial, Reyes was convicted on all counts.
The District Court sentenced Reyes to 180 months’ imprisonment, five years of supervised release, a $1,000 fine, and a special assessment of $300. Reyes timely appealed.
III.
In this appeal, Reyes challenges only his Hobbs Act robbery conviction. In the end, we reject each of Reyes’s arguments seeking to overturn that conviction.
A.
First, Reyes challenges the sufficiency of the Government’s evidence to convict him of Hobbs Act robbery. “In reviewing a challenge to the sufficiency of the evidence, we ‘must determine whether, viewing the evidence mоst favorably to the [Government, there is substantial evidence to support the jury’s guilty verdict.’ ” United States v. Urban,
The Hobbs Act applies to any robbery attempt that “in any way or degree obstructs, delays, or affects commerce or the movement of аny article or commodity in commerce.” 18 U.S.C. § 1951(a). “To sustain a conviction for interference with commerce by robbery under § 1951, the [Government must prove the element of interference with interstate or foreign commerce by rоbbery.” United States v. Haywood,
Reyes argues that Hobbs Act robbery requires a specific intent to affect interstate commerce, and that the Government failed to prove such a specific intent beyond a reasonable doubt. We disagree. It is well-established that a specific intent to affect interstate commerce is not an element of Hobbs Act robbery. Indeed, “[i]t is not necessary that the purpose [of the conduct was] to affect interstate commerce.” United States v. Addonizio,
Reyes argues in the alternative that the trial evidence was insufficient to prove an effect on interstate commerce beyond a reasonable doubt. However, under the Hobbs Act the Government need not prove an actual effect on interstate commerce. Instead, it must only prove that the underlying robbery “potentially caused an effect on interstate commerce to any degree, however minimal or slight.” Urban,
At trial, the Government presented evidence that the grocery store importеd portions of its inventory from other states, and was forced to close for approximately eight hours as a result of the robbery. During this period, the store could not receive goods from out-of-state vendors, sell its goods that had been delivered across state lines, or permit customers to use its ATM machine. Furthermore, the robbery itself was intended to steal money from the grocery store, which would have depleted its available assets and limited its ability to engage in interstate transactions.
Because the Government was required to prove only a minimal, potential effect on interstate commerce, we hold that it provided sufficient evidence to sustain Reyes’s conviction under the Hobbs Act.
B.
Reyes next argues that the Hobbs Act is unconstitutional “as applied” to his conduct. For support, he cites United States v. Lopez,
Because Reyes did not raise this argument before the District Court, we review it only for plain error. See United States v. Boone,
In Clausen, the defendants “argue[d] that the Hobbs Act [wa]s unconstitutional as applied to a broad category of cases, including this one, in which the effect of any given robbery on interstate commerce was minimal.” Id. at 710. We rejected this argument, concluding that the Hobbs Act “regulate[d] activity which occurred] locally but which ha[d] an explicit nexus with interstate commerce.” Id. at 711. We added that this rendered it “distinguishable from the statute[] at issue in Lopez,” and therefore “the District Court did not err when it instructed the jury that it need only find that each robbery had a minimal effect on interstate commerce.” Id.
Reyеs’s constitutional challenge is virtually indistinguishable from the challenge we rejected in Clausen. As a result, Reyes cannot establish error under our precedent, let alone plain error.
C.
Finally, Reyes argues that: 1) portions of the indictment and jury charge can be read to suggest that a specific intent to affect interstate commerce was a required element; and, accordingly, 2) the later portion of the jury charge — in which the District Court instructed the jury that it did not have to find that Reyes intended to affect interstate commerce — both caused the verdict to be “at variance” with the indictment, and resulted in “confusing” and “inconsistent” instructions. We review these claims only for plain error because Rеyes failed to raise them before the District Court. See United States v. Antico,
The indictment charged him as follows: Thomas Reyes attempted to obstruct, delay[,] and affect commerce and the movement of articles and commodities in commerce, by robbery, [by] unlawfully attempting] to take and obtain cash from the Gomez Grocery located at 82 East Walnut Lane, Philadelphia, Pennsylvania in the presence of employees of the Gomez Grocery and against their will, by means of actuаl and threatened force, violence, and fear of injury, immediate and future, to the employees of the Gomez Grocery, that is, by brandishing and discharging a gun, demanding money, and threatening employees of the Gomez Grocery.
The indiсtment further alleged that “the Gomez Grocery was engaged in and affect
Furthermore, the charge to the jury accurately stated the law and was not inconsistent with thе indictment. In relevant part, the Court instructed the jury as follows:
The defendant need not have intended or anticipated an effect on interstate commerce. You may find the effect as a natural consequence of his аctions. If you find that the defendant intended to take certain actions, that is, he did the acts charged in the indictment in order to obtain property, and you find those actions have either caused or would probably cause an effect on interstate commerce no matter how minimal, then you may find the requirements of this element satisfied.
Reyes does not offer any passages that persuade us that a reasonable trier of fact would be confused by аny alleged inconsistencies in the indictment and the jury instructions. Both the indictment and the jury instructions present the relevant law accurately and, read together, are consistent.
In order to prevail, a defendant must prove that therе was “a ‘variance’ between the indictment and the proof at trial, to the prejudice of the defendant’s substantial rights.” United States v. Barr,
As noted above, the Government offered evidence that many of the items sold in the Gomez Grocery were purchased from other states. As a result of the attempted robbery, the store closed down for eight hours, which kept it from receiving out-of-state goods or allowing its customers to use its ATM machine. Furthermore, had Reyes successfully completed the robbery, he would have stolen money from the Gomez Grocery, therefore depleting assets that would have been available to engage in interstate transactions. This evidence all supports a conviction for Hоbbs Act robbery — the relevant crime charged in the indictment. Furthermore, nothing in the indictment or jury instructions suggests any confusion about the underlying offense or the elements that had to be proven at trial — including specific intent. * * * * * *
For these reasons, we reject each of Reyes’s challenges, and affirm the judgment of the District Court.
Notes
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.