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Date: 10-23-2021
Case Style:
United States of America v. JAMES MCFARLAND, JR.
Case Number: 00-10569
Judge: Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM
Court: UNITED STATES COURT OF APPEALS
For the Fifth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant
with count of “interference with interstate commerce by robbery” (Hobbs Act) and a count for use of a firearm in commission of a federal felony (gun count) charges.
On four different dates in a one month period in 1998, James
W. McFarland (“McFarland”) robbed four different retail convenience
stores operated by four different owners at four different
locations in the City of Ft. Worth, Texas. His modus operandi was
extremely simple: enter the store and pretend to look for something
to buy; when he was the only customer in the store, approach the
clerk at the cash register and pull out a .25 caliber pistol;
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instruct the clerk to open the cash drawer and then lay down on the
floor; reach in and grab all of the paper currency in the cash
drawer; and tell the clerk to stay on the floor for five minutes
and walk out the door. The dollar amount of his take at each store
was modest: at Quick Way Shopping, he got $50; at Buy Low, he got
$100; at Jeff Stop, he got $145; and at Gateway Liquor, he got
somewhere between $1,500 and $2,000. In each case, the clerk
victim called 911 and reported the robberies to the Ft. Worth
Police Department which conducted an investigation and ultimately
arrested and jailed McFarland on charges of robbery under state
law. However, instead of being prosecuted by the State as would
the perpetrators of hundreds of other similar robberies which
occurred in the City of Ft. Worth in that year, McFarland was
treated differently. Through the alchemy of federal prosecutorial
discretion, a federal grand jury indicted McFarland for a count of
“interference with interstate commerce by robbery” (Hobbs Act) and
a count for use of a firearm in commission of a federal felony (gun
count) on each of the four robberies. He was tried before a jury
in federal court and found guilty on all counts. On each of the
Hobbs Act counts, he was sentenced to 210 months in prison, to be
served concurrently with the other Hobbs Act sentences. On the
first gun count, he was sentenced to 60 months and, on each of the
remaining three gun counts, he was sentenced to 300 months, all of
such gun count sentences to be served consecutive to the Hobbs Act
counts and consecutive to each other, as mandated by the United
1 Aggravated robbery under Texas law is a first degree felony,
TEX. PEN. CODE § 29.03(b), and carries a punishment of a minimum of
5 and a maximum of 99 years. TEX. PEN. CODE § 12.32.
2 529 U.S. 848 (2000).
3 529 U.S. 598 (2000).
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States Congress. As a result, his total sentence to be served is
1,170 months. Since federal sentencing does not contain any
provision for parole, McFarland will serve 97 and one-half years,
less any small percentage reduction as he may earn by good
behavior. In contrast, under Texas law, McFarland could have been
sentenced to as little as five years.1 And, regardless of the
length of his sentence, he would have been eligible for parole
after serving half his sentence, or 30 years, whichever was less.
See TEX. CODE CRIM. PROC. art. 37.07, sec. 4(a). By prosecuting these
crimes in the federal system, McFarland has received, in effect, a
life sentence without parole.
McFarland appeals, asserting that the application of the Hobbs
Act to these local robberies is unconstitutional, and citing
particularly the recent decisions of the United States Supreme
Court in United States v. Jones2 and United States v. Morrison.
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This is not the first occasion on which this Court has agonized
over the propriety of the gambit of prosecuting criminal conduct
which has historically and traditionally been prosecuted under the
state system as a federal crime in order to maximize punishment.
In United States v. Hickman, 151 F.3d 446 (5th Cir. 1998), another
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panel of this Court addressed factual circumstances amazingly
similar and raising the same constitutional issues. The Hickman
panel concluded that they were bound by existing Circuit precedent
in United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997), which
held:
We find the reasoning of Bolton unassailable.
We agree that under the third category of the
commerce power described in Lopez, the particular
conduct at issue in any given case need not have a
substantial effect upon interstate commerce.
Congress is free to act -- and the government to
apply the law -- so long as the regulated activity,
in the aggregate, could reasonably be thought to
substantially affect interstate commerce.
Appellant’s as-applied challenge to the Hobbs
Act collapses in the face of the aggregation
principle. Every robbery or act of extortion in
violation of the Hobbs Act must have an effect on
interstate commerce; the Act’s express
jurisdictional element ensures this. It follows
with the inexorable logic of the multiplication
table that the cumulative result of many Hobbs Act
violations is a substantial effect upon interstate
commerce.
Id. at 1215. A majority of the active judges of this Court voted
to reconsider the Hickman decision en banc; but that en banc
reconsideration resulted in a tie vote among the judges
participating in that reconsideration, which left the Robinson
panel decision in place as the binding precedent for this Circuit.
See United States v. Hickman, 179 F.3d 230 (5th Cir. 1999).
McFarland urges us to read the Supreme Court’s language in Jones
and Morrison as being clear enough and sufficiently on point for
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this panel to reach a conclusion different from the existing
Circuit precedent in Robinson. But neither Jones nor Morrison
dealt with the Hobbs Act which is the heart of this continuing
controversy. And this Circuit has followed a tradition and custom
of a rule of orderliness which precludes a subsequent panel from
disregarding the holding of a prior panel unless that prior holding
has been changed by an intervening en banc decision of this Court
or by a Supreme Court decision. While the tie vote on en banc
reconsideration in Hickman certainly indicates that this Court
sitting en banc has not finally resolved the question of the
constitutionality of applying the Hobbs Act to criminal conduct
which has traditionally been prosecuted as a matter of State
responsibility, this panel nevertheless considers itself obligated
to adhere to the Circuit precedent in Robinson.
Outcome: Therefore, we affirm the convictions and sentences against McFarland in this
appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: