United States of America v. Berry Carr

The Honorable Joan B. Gottschall, United States District å
Judge for the Northern District of Illinois, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3202
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BERRY CARR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 10-CR-68-WMC-01—William M. Conley, Chief Judge.
ARGUED FEBRUARY 22, 2011—DECIDED JULY 25, 2011
Before WILLIAMS and TINDER, Circuit Judges, and
GOTTSCHALL, District Judge.å
GOTTSCHALL, District Judge. The government charged
defendant Berry Carr with one count of possessing a
firearm as a convicted felon under 18 U.S.C. § 922(g)(1).
A superseding indictment added two additional counts:

-- 1 of 5 --

2 No. 10-3202
a robbery charge under the Hobbs Act, 18 U.S.C. § 1951,
and a charge of brandishing a firearm during and in
relation to a crime of violence, 18 U.S.C. § 924(c). The
charges stemmed from an incident in which Carr used a
gun to rob a Stop N’ Go convenience store in Fitchburg,
Wisconsin. He made off with a mere $54 in cash. As part
of an agreement with the government, Carr pled guilty
to the § 1951 and § 924(c) counts. The felon-in-possession
count was dismissed on the government’s motion.
The district court sentenced Carr to 96 months and
84 months imprisonment on the two counts, respectively.
The terms were to be served consecutively.
As part of the plea agreement, Carr reserved his right
to appeal the district court’s decision denying his pre-
trial motion to dismiss the Hobbs Act charge. Carr
had argued before the district court that the indictment
did not allege a crime which affected commerce, as re-
quired by the statute. Carr now challenges the § 1951
conviction.
The Hobbs Act provides that:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article
or commodity in commerce, by robbery or extortion
or attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything
in violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). In this case, the government must
prove two elements: a robbery and an effect on interstate

-- 2 of 5 --

No. 10-3202 3
commerce. United States v. Peterson, 236 F.3d 848, 851 (7th
Cir. 2001). The indictment alleged that Carr robbed a
store that was “engaged in interstate commerce and in
the wholesale purchase, distribution and retail sale of
beverages and food products originating outside the
State of Wisconsin.”
The Hobbs Act “speaks in broad language, manifesting
a purpose to use all the constitutional power Congress
has to punish interference with interstate commerce by
extortion, robbery or physical violence.” Stirone v. United
States, 361 U.S. 212, 215 (1960). As Carr acknowledges, the
law of this circuit requires the government to show only
that the charged crime had a “de minimis” or slight effect
on interstate commerce. See, e.g., United States v. Bailey,
227 F.3d 792, 797 (7th Cir. 2000). The government meets
its burden by showing that a defendant robbed an en-
terprise which engages in interstate commerce, thus
depleting the assets of the enterprise and limiting its
ability to purchase more goods. Peterson, 236 F.3d at 854.
Carr contends that the Supreme Court’s decisions in
United States v. Lopez, 514 U.S. 549 (1995) (invalidating
the Gun-Free School Zones Act), and United States v.
Morrison, 529 U.S. 598 (2000) (invalidating part of the
Violence Against Women Act), should lead this court to
reconsider its holding that a de minimis effect on com-
merce is sufficient to invoke Congress’s Commerce
Clause power. This court has expressly rejected that
argument on numerous occasions. United States v. Griffin,
493 F.3d 856, 861 (7th Cir. 2007); United States v. Sutton,
337 F.3d 792, 796 (7th Cir. 2003); Peterson, 236 F.3d at 852;

-- 3 of 5 --

4 No. 10-3202
see also United States v. Watson, 525 F.3d 583, 590 n.3 (7th
Cir. 2008) (noting that Carr’s argument is a “perennial
loser”).
The Commerce Clause gives Congress three broad
categories of authority: (1) the power to regulate the use
of channels of interstate commerce, (2) the power to
regulate and protect instrumentalities, persons or things
in interstate commerce, and (3) the power to regulate
activities having a substantial effect on interstate com-
merce. Morrison, 529 U.S. at 608-09. In this case, like
Lopez and Morrison, the government’s assertion of power
is premised on the third category.
In Morrison, the Court invalidated a section of the
Violence Against Women Act (“VAWA”) that provided
a federal civil remedy for victims of gender-motivated
violence. The government had argued that this sec-
tion of the VAWA was constitutional because, in the
aggregate, violence against women substantially affects
commerce. Id. at 615. But the Court rejected this method
of considering the aggregate effect of a class of crimes.
“[I]ntrastate violence that is not directed at the instru-
mentalities, channels, or goods involved in interstate
commerce has always been the province of the States.”
Id. at 618. Accepting the government’s argument would
have expanded the Commerce Clause power to en-
compass regulation of almost any crime as well as
other areas of traditional state concern. Id. at 615-16.
In this case, there is no similar risk that the Hobbs Act
will obliterate all limits on federal power. Although
robbery itself is not necessarily economic activity, Carr’s

-- 4 of 5 --

No. 10-3202 5
crime targeted a business engaged in interstate com-
merce. And unlike the statutes at issue in Lopez and
Morrison, the Hobbs Act contains a jurisdictional element
which requires the government to prove the interstate
nexus. Peterson, 236 F.3d at 852 (“[The Hobbs Act] does
not federalize all robberies because all robberies per se
affect interstate commerce; rather, it applies only to
robberies with the proven effect.”). An act of violence
against even one business, like the convenience store in
this case, could conceivably deter economic activity and
thus harm national commerce. The economic harm
would not necessarily depend upon the amount of
money with which any particular defendant absconds.
If retail stores, in the aggregate, have a substantial effect
on commerce (which they undoubtedly do, see Sutton,
337 F.3d at 796 n.2), then the federal government has a
legitimate interest in preventing any crime like the one
in this case.
Carr’s conviction is affirmed.
7-25-11

-- 5 of 5 --