30 Years for $40 of Interstate Commerce; Fleeing Still a Violent Felony

By William Peacock, Esq. on December 28, 2012 | Last updated on March 21, 2019

Carter Tillery walked into the Petersburg, Virginia branch of Swan Dry Cleaners, brandished a firearm, and walked out with a laptop and $40 to $100 in cash. He made the sole employee strip to her underwear and tied her up. He was caught after trying to sell the laptop to the barbershop next-door.

Truth be told, the conviction was a foregone conclusion. Though the employee's description of Tillery was mildly inaccurate, she identified him from a photo lineup, as did the barber who bought the laptop. Police found weapons stashed in an abandoned motel near where Tillery was staying. He also confessed the entire ordeal, in excruciating detail, to a snitching cellmate.

At most, Tillery stole $250 in cash and goods from the dry cleaners. For that, he was charged with a Hobbs Act robbery and with brandishing a firearm during a crime of violence. His total sentence was 360 months.

He was obviously displeased with the result. After all, he robbed a small town dry cleaner and ended up with federal charges. His counsel argued that the cash stolen from the business did not amount to a "minimal effect" in interstate commerce, but as we've seen time and again, no amount is too small to qualify under the statute. In addition, Swan sources all of its chemicals and supplies from out of state and out of country and is part of a larger chain of dry cleaners that reach outside of Virginia.

In addressing the argument, the court cited one of their own unpublished decisions from earlier this year where robbing a prostitute qualified as a Hobbs Act violation. If robbing a prostitute is interfering with interstate commerce, it is nearly impossible to imagine any scenario that would not fall under federal jurisdiction.

The court addressed this jurisdictional concern by stating, "While some robberies ... may essentially be "state crimes" better prosecuted at the state level, we are not policy-makers nor do we have power over prosecutorial efficiency. We only look at whether the jurisdictional predicate is satisfied, which in this case it undoubtedly was."

Tillery also took issue with being sentenced as a career offender. In order to qualify, one must have two prior felony convictions for a violent offense or a controlled substance offense. Tillery had previously been convicted of a robbery and use of a firearm in the commission of a felony, and a conviction of eluding police.

Unfortunately for Tillery, thanks to another Fourth Circuit opinion from this year, "intentional vehicular flight in any manner poses a potential level of risk that is sufficient to render the offense a violent felony." That opinion piggybacked on a similar SCOTUS opinion that addressed Indiana's vehicular flight statute.

Two very recent precedents foreclosed Tillery's argument that evading the police was not a violent offense. The court stated that had he brought the argument before the recent decisions, he might have had a fighting chance. It's simply a matter of unfortunate legal timing.

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