United States of America v. Darius Stephen McNairy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4666
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARIUS STEPHEN MCNAIRY,
Defendant - Appellant.
No. 14-4686
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN EUGENE HARGRAVE,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00008-CCE-2; 1:14-cr-00008-CCE-1)
Submitted: April 16, 2015 Decided: April 20, 2015
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

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Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant. Ripley
Rand, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darius McNairy and Brian Hargrave appeal the district
court’s criminal judgments entered pursuant to their guilty
pleas to charges of violating the Hobbs Act and using a firearm
during a crime of violence, and sentencing them to 140 and 147
months’ imprisonment, respectively. On appeal, Appellants
challenge only their Hobbs Act convictions. We affirm.
The Hobbs Act makes it a crime to commit robbery or
extortion to obstruct, delay, or affect commerce or the movement
of any commodity in commerce. 18 U.S.C. § 1951(a) (2012). The
Hobbs Act “requires proof of two elements: (1) the underlying
robbery or extortion crime, and (2) an effect on interstate
commerce.” United States v. Williams, 342 F.3d 350, 353 (4th
Cir. 2003). Proof that a business acquired supplies or goods
from out-of-state sources will normally satisfy the commerce
element. See Stirone v. United States, 361 U.S. 212, 215
(1960); see also United States v. Curcio, 759 F.2d 237, 241 (2d
Cir. 1985). Commerce is also affected if the robbery depletes
the assets of the business. Williams, 342 F.3d at 354-55.
Appellants contend that the district court lacked subject
matter jurisdiction over this case because the commerce element
was not proven. To the contrary, the commerce element
“implicates the power of Congress to regulate the conduct at
issue, not the jurisdiction of the court to hear a particular

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case.” Cf. United States v. Carr, 271 F.3d 172, 178 (4th Cir.
2001) (construing the commerce element in the federal arson
statute, 18 U.S.C. § 844(i) (2000)*). Therefore, Appellants
“merely contest[] the sufficiency of the evidence supporting
that element of the offense.” Id.
In the context of guilty pleas, Rule 11(f) of the Federal
Rules of Criminal Procedure explains that “the court should not
enter a judgment upon such [] plea[s] without making such
inquiry as shall satisfy it that there is a factual basis for
the plea[s].” Fed. R. Crim. P. 11(f). Because Appellants did
not object to the factual basis for their pleas before the
district court, our review is for plain error. United States v.
Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). Under this
standard, Appellants must show that an error (1) occurred,
(2) was plain, and (3) affected their substantial rights. Id.
at 342-43 (citing United States v. Olano, 507 U.S. 725, 732
(1993)). Even then, we will only exercise our discretion to
correct the error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Olano,
507 U.S. at 732 (citations, alterations, and internal quotation
marks omitted).
* The current version is available at 18 U.S.C. § 844(i)
(2012).

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We find no error in the district court’s acceptance of the
factual basis for Appellants’ guilty pleas, plain or otherwise.
Appellants stole cash from a North Carolina beauty salon, which
purchased supplies from another business in Virginia.
Appellants’ counterarguments are unconvincing. That
Appellants “only” stole $200 is irrelevant. See United
States v. Capozzi, 347 F.3d 327, 337 (1st Cir. 2003) (noting
that Government need only show “de minimis” effect on interstate
commerce). The factual basis need not have specified that the
beauty salon was a “commercial entity.” See Williams, 342 F.3d
at 352 (holding that the robbery of a drug dealer satisfied the
commerce element). Finally, despite Appellants’ protests to the
contrary, the factual basis specified that the stolen cash
belonged to the beauty salon, not to the owner in her individual
capacity. We thus hold that the factual basis was adequate to
satisfy the commerce element.
Accordingly, we affirm the district court’s judgments. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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