Hung

I respectfully dissent because in my view the record contains evidence not materially distinguishable from evidence we found sufficient to support Hobbs Act jurisdiction in United States v. Atcheson, 94 F.3d 1237, 1243 (9th Cir.1996).

MEMORANDUM **

Jimmy Hung (“Hung”) appeals his conviction and sentence for one count of conspiracy to commit a robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (a), and one count of using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c). Hung waived a jury trial and only challenged the jurisdictional element of the Hobbs Act during a trial before the district court. Hung was convicted on both counts. Hung argues on appeal that the government failed to prove the element of “affecting interstate commerce” required for Hobbs Act jurisdiction in light of our decision in United States v. Lynch, 282 F.3d 1049, 1051 (9th Cir.2002), decided after the trial in this case.

In Lynch , we adopted a test formulated by the Fifth Circuit that restricts Hobbs Act jurisdiction over crimes against an individual to those criminal activities where:

Id. at 1053 (quoting United States v. Collins, 40 F.3d 95, 100 (5th Cir.1994)). This test is disjunctive. See United States v. Diaz, 248 F.3d 1065, 1085 (11th Cir.2001).

Although the trial court did not have the benefit of Lynch , the government did address Lynch at oral argument. We conclude that the…