United States v. Whitley

105 F.4th 672

UNITED STATES of America, Plaintiff - Appellee, v. Douglas Damon WHITLEY, Defendant - Appellant.

No. 23-4285

United States Court of Appeals, Fourth Circuit

Argued: May 10, 2024

Decided: June 28, 2024

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:21-cr-00227-LMB-1)

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Valencia D. Roberts, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.

QUATTLEBAUM, Circuit Judge:

A federal jury convicted Douglas Damon Whitley of Hobbs Act robbery, federal carjacking and a firearm offense in connection with his theft of a Peloton delivery van and its contents. With respect to his Hobbs Act robbery and federal carjacking convictions, the district court sentenced Whitley to concurrent 84-month prison terms. On direct appeal, Whitley argues that Hobbs Act robbery is a lesser included offense of carjacking, such that his convictions and sentences for both offenses violate the Double Jeopardy Clause. He also argues that there was insufficient evidence of the specific intent needed to convict him of federal carjacking. We disagree with both arguments and affirm the district court's judgment.

I.

A.

A little after 6:00 a.m. on August 25, 2021, a security camera captured Whitley and his girlfriend, Kindal Robinson, leaving their Washington, D.C., apartment with their infant child. Whitley wore a white t-shirt, black pants with a white stripe down the side and a gray backpack. Whitley, Robinson and the baby left the apartment complex in a black Toyota Camry. About an hour later, Robinson's cell phone records placed her across the street from a Peloton warehouse in Fairfax County, Virginia. Half an hour after that, Peloton employees Brandon Hawkins and Leonel Munoz left the warehouse in a Peloton delivery van. The van, which bore Maryland license plates, carried eight Peloton bikes and various equipment that Hawkins and Munoz were to deliver to customers in and around D.C. Hawkins drove the van while Munoz sat in the front passenger seat.

Shortly after leaving the warehouse, Hawkins pulled the van into a shopping center parking lot so Munoz could buy food at a 7-Eleven. Security footage obtained from nearby businesses shows a black Toyota Camry following the van into the parking lot. After Hawkins parked the van, Munoz headed inside the 7-Eleven while Hawkins stayed in the van. Meanwhile, the Camry circled the parking lot before coming to a stop behind the parked van. A man wearing a white shirt and black pants with a white stripe exited the front passenger side of the Camry. Then, the man approached the passenger side of the van.

Hawkins testified that the man opened the passenger side door and climbed inside. Hawkins recalled the man wearing a white t-shirt, a black bucket hat and a camouflage neck gaiter covering his nose and mouth. According to Hawkins, the man was also holding a gray backpack. Hawkins testified that the man pulled a firearm out of the backpack and pointed it at Hawkins' torso. He said the man told him, "don't touch anything," and to "get the f*** out of the van." J.A. 59. Hawkins exited the van, leaving behind a company cell phone and his and Munoz's personal cell phones. Hawkins immediately walked toward a Wells Fargo adjacent to the 7-Eleven because, according to his testimony, he believed the bank would have security cameras that would capture the incident if anything were to happen to him. The security footage shows the Camry then leaving the parking lot with the van following closely behind.

After the van left, Hawkins went inside the 7-Eleven to find Munoz. Though several workers and customers were present, Hawkins did not ask for assistance or tell anyone of the incident. Instead, Hawkins called Munoz over and privately told him that the van had been stolen. While Peloton's policy required employees to remain at the scene of an incident and call the police, Hawkins and Munoz began walking back to the warehouse. A coworker passing by gave the men a ride the rest of the way. Once back at the warehouse, Hawkins told management of the incident, and management contacted the police. The police came to the warehouse and interviewed Hawkins, who provided them with a description of the suspect's clothing and backpack.

Using security footage of the incident, law enforcement traced the Camry's license plate to Robinson's mother, who was listed as living at the same D.C. address as Whitley and Robinson. The day after the incident, officers located the Camry at the address, where they encountered Whitley and Robinson on the street. Like the suspect described by Hawkins, Whitley was wearing a camouflage neck gaiter. During an investigative detention, Robinson admitted to officers that she had driven the Camry in the shopping center parking lot the previous day. With Robinson's consent, officers then searched the apartment but did not find any firearms. Then, after obtaining a search warrant for the Camry, the officers found a black bucket hat in the trunk. Police later found the emptied Peloton van in Maryland. They determined that some of the Peloton bikes had been sold online to unsuspecting purchasers. Police never found the firearm described by Hawkins.

B.

A federal grand jury returned an indictment against Whitley and Robinson. The indictment charged both with Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2, based on the theft of "a Peloton delivery truck, eight Peloton bike units, one Peloton company iPhone, and assorted mats, shoes, resistance bands, earbuds, weights and touch screens." J.A. 14-15. It also charged them with carjacking, in violation of 18 U.S.C. §§ 2119 and 2, based on the theft of the van. The indictment individually charged Whitley with violating 18 U.S.C. § 924(c) by using, carrying and brandishing a firearm during and in relation to a crime of violence. Whitley and Robinson pleaded not guilty and proceeded to a joint jury trial, where the defense argued that Whitley and Hawkins staged the incident. The jury found them both guilty of all charges.

In a motion for judgment of acquittal under Federal Rule of Civil Procedure 29, Whitley argued that Hobbs Act robbery is a lesser included offense of federal carjacking, such that punishing him for both offenses would violate the Double Jeopardy Clause. Whitley also argued that the government failed to produce sufficient evidence of his specific intent to cause death or serious bodily harm, an essential element of federal carjacking. The district court denied Whitley's motion in a written order. It determined that Hobbs Act robbery is not a lesser included offense of carjacking under the test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). It likewise rejected Whitley's challenge to the sufficiency of the evidence underlying his carjacking conviction, explaining that a reasonable jury could have found that Whitley had the specific intent to kill or seriously injure Hawkins if necessary to take the van.

The district court sentenced Whitley to concurrent terms of 84 months' imprisonment on the Hobbs Act robbery and carjacking counts and a mandatory consecutive term of 84 months' imprisonment on the firearm count, resulting in a total prison term of 168 months. It also sentenced Whitley to a total of 5 years of supervised release and ordered him to pay $16,000 in restitution, for which Robinson was jointly and severally liable.¹ Whitley timely appeals his criminal judgment, raising the same double jeopardy and sufficiency challenges he raised below.²

II.

Whitley raises two arguments. First, he argues that his convictions and sentences for Hobbs Act robbery and federal carjacking violate the Double Jeopardy Clause because the former is a lesser included offense of the latter, such that he is being punished for the same offense twice. Second, he insists that insufficient evidence supports the jury's guilty verdict on the federal carjacking count because his mere brandishing of a firearm does not demonstrate a specific intent to cause death or bodily harm. We consider these arguments in turn.

A.

The Double Jeopardy Clause "prohibits the government from subjecting a person to 'multiple punishments for the same offense.' " United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015) (quoting Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984)).³ It "attaches if the subject offenses 'are in law and in fact the same offense.' " Id. (quoting United States v. Crew, 538 F.2d 575, 577 (4th Cir. 1976)). To determine whether two offenses charged under separate statutes are the same offense, courts apply the Blockburger test. See id.; Blockburger, 284 U.S. at 304, 52 S.Ct. 180. The Blockburger test "is essentially one of legislative intent" and "focuses on the formal elements of the two crimes, finding them to be different offenses if each requires proof of a fact which the other does not." United States v. Ragins, 840 F.2d 1184, 1188 (4th Cir. 1988). If each offense "requires proof of a fact that the other does not, the Blockburger test is satisfied," meaning the two offenses are not the same, "notwithstanding a substantial overlap in the proof offered to establish the crimes." Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284,...