The back story:

Lady in SF Walgreens in Civic Center with accomplice “robs” store fake-coughing and claiming to have COVID. Security, manager won’t touch them, they flee with $90 of merchandise likely no indication that items were subject to “interstate” commerce.

The FBI(!) gets involved, and they charged by the U.S. Attorney; at least one of them gets convicted for 20 years and $250,000 in fine for robbery and interference with interstate commerce or some similar statute.

I thought there were case law that punitive damages don’t serve there purpose if they ruin the defendant.


I have a lot of questions in mind so I’ll just throw a few in:

  1. Is there a slightest of chance that this sentencing could have happened with the governments compliance with Amendment XIV and Amendment VI? (Not by case law, but by the letter of the law.)

  2. Is this sentencing going to stand on appeals as being cruel and/or unusual?

  • What does "Not by case law, but by the letter of the law" mean? Case law is how it's determined what the letter of the law means. It sounds like you're asking for interpretations based on a hypothetical legal system that works somehow differently than the US legal system.
    – Ryan M
    Jul 20, 2021 at 3:01

2 Answers 2


Barela was convicted of robbery affecting interstate commerce and faces a sentence of up to 20 years and $250,000 in fines.

I assume your issue is that you think this is too high (although I don't see what it has to do with the 14th or 6th Amendments). Fortunately, it's also almost completely unrelated to the actual sentence. The number that was quoted is the statutory maximum for robbery or extortion affecting interstate commerce. It represents the maximum amount that any defendant under any circumstances could receive for one count of that crime. A career criminal who threatened to kill an armored car guard in order to steal $10,000,000 would face the same 20-year statutory maximum as someone with no record who threatened to give COVID to a store clerk in order to steal $90.

In some situations, things like the amount stolen or the defendant's criminal record affect the actual crime the defendant is convicted of. At the federal level, that's mostly not the case. Robbery affecting interstate commerce doesn't have degrees or statutory enhancements. Instead, a judge decides what sentence is appropriate. The judge can, in theory, pick anything between the statutory minimum (here there is none) and the statutory maximum (here it's 20 years). 18 U.S. Code § 3553 lays out the factors for the court to consider.

In practice, federal courts generally sentence within the range given in the U.S. Sentencing Guidelines. While the statute itself doesn't distinguish between stealing $90 by threatening to cough and stealing millions by threatening to shoot, the Guidelines do. Courts don't have to follow the Guidelines range but typically do. If they don't, it's much more likely their sentence will be overturned as unreasonable on appeal. Popehat has a good blog post on the Guidelines, how they work, and why press releases quoting statutory maximums are basically straight-up lies.

Sentencing.us has an unofficial calculator you can use to estimate the Guidelines range for a particular crime. If you plug in 18 U.S. Code § 1951 (which translates to the "Robbery" guideline) and enter in $90 stolen, no weapon used, no threat of death, and no criminal record, then you get a range of 33-41 months and/or a fine of $7,500 to $75,000. This is basically the lowest Guidelines range possible for robbery. For comparison, under California state law robbery is punishable by two, three, or five years in state prison. Robbery is a serious and violent crime, so a sentence of multiple years would not be considered unreasonable. But it takes a lot for the Guidelines range to approach the statutory maximum of 20 years.

  • I think threatening to give someone Covid could very well count as a "threat of death".
    – nick012000
    Jul 18, 2021 at 1:16

...likely no indication that items were subject to “interstate” commerce.

In addition to cpast's answer I'll just address this bit. The "interstate commerce" is in reference to the Commerce Clause in the US constitution. This has been interpreted very broadly, so pretty much any activity which has an economic effect will be held to have a knock-on impact on interstate commerce.

In the case of goods in a shop, its highly probable that the goods themselves were carried across state lines, or that components used to make them were. Also no doubt people from out of state buy stuff in that shop from time to time. They would be affected if it were forced to raise prices due to theft, or if it had to close temporarily due to a Covid-19 outbreak. Finally, Walgreens is a national chain based in Illinois not California. All of these things are considered sufficient to trigger federal interest under the Commerce Clause.

I thought there were case law that punitive damages don’t serve there purpose if they ruin the defendant.

These are fines, not punitive damages. The latter are awarded in civil cases (not criminal) where the wrong is not charged as a crime but still needs to be deterred, such as negligence that leads to injury. Criminal fines are issued on conviction beyond reasonable doubt, while punitive damages are assessed on the balance of probability.

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