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United States v. McKeever

United States Court of Appeals, District of Columbia Circuit

June 10, 2016

United States of America, Appellee
v.
Darius McKeever, Appellant

          Argued March 18, 2016

         Appeals from the United States District Court for the District of Columbia (No. 1:13-cr-00109-3) (No. 1:13-cr-00109-2) (No. 1:13-cr-00109-1)

          Robert S. Becker and Carmen D. Hernandez, both appointed by the court, argued the causes for appellants. With them on the joint briefs was Dennis M. Hart, appointed by the court.

          Lauren R. Bates, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was Elizabeth Trosman, Assistant U.S. Attorney.

          Before: Pillard and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          Edwards, Senior Circuit Judge:

         Detectives from the Metropolitan Police Narcotics & Special Investigations Division arrested Darius McKeever, Darnell Wallace, Trevor Hopkins ("Appellants"), and co-defendant Kenneth Benny-Dean on April 4, 2013, in a reverse sting operation, and charged them with conspiracy to interfere with commerce by robbing a liquor store in violation of the Hobbs Act, 18 U.S.C. § 1951. A Federal Grand Jury returned a single-count indictment on April 9, 2013. Appellants Wallace and McKeever entered guilty pleas to the indictment on August 1, 2013. Appellant Hopkins pleaded guilty to the indictment on September 12, 2013. On October 9, 2013, the District Court sentenced Wallace to a term of imprisonment of 65 months, supervised release of 36 months, and a special assessment of $100. Wallace noted this timely appeal on October 28, 2013. Also on October 9, 2013, the District Court sentenced McKeever to a term of imprisonment of 84 months, supervised release of 36 months, and a special assessment of $100. McKeever noted this timely appeal on October 14, 2013. On December 12, 2013, the District Court sentenced Hopkins to a term of imprisonment of 80 months, supervised release of 36 months, and a special assessment of $100. Hopkins noted this timely appeal on December 27, 2013. Co-defendant Benny-Dean went to trial and was acquitted by a jury on October 23, 2013.

         Appellants, together, argue that undercover police officers instigated the use of firearms in the reverse sting operation leading to their arrest. According to Appellants, the police brought a pistol and assault rifle to a meeting at which the robbery was being planned by Appellants and the undercover officers, and for a few minutes the officers placed those weapons in Hopkins' and Wallace's hands. Br. of Appellants at 13. None of the Appellants was carrying a weapon of his own. Appellants were arrested during the meeting without any robbery actually taking place. In light of these circumstances, Appellants have raised the following issues on appeal.

         First, Appellants argue that, because none of them "possessed firearms in furtherance of the criminal agreement, " the District Court erred when it "enhanced each Appellant's sentence 5 levels pursuant to U.S.S.G. §§ 2X1.1 and 2B3.1(b)(2)." Id. Second, Appellants claim that "they are entitled to [a] remand for resentencing because [the District Court] failed to consider whether police introduction of firearms into the conspiracy was sentenc[ing] entrapment." Id. Third, Appellant Hopkins raises a number of contentions, inter alia, that the District Court lacked subject matter jurisdiction over the case, id. at 36-38; that "[t]he District Court erred in conducting a Rule 11 plea inquiry that failed to establish that [he] knew his actions would have an interstate impact or that he had any reason to believe the conspiracy was one that satisfied the elements of the Hobbs Act, " id. at 13-14; and that the District Court "erred in failing to establish during the Rule 11 inquiry that Hopkins agreed with anyone other than the undercover officers to engage in the conduct which constituted the conspiracy, " id. at 14.

         We reject Appellants' challenge to the firearm enhancement. We agree with the Government that "[t]he district court did not err in applying a five-level enhancement under U.S.S.G. § 2B3.1(b)(2) for possession of a firearm. Actual possession of a firearm is not a prerequisite to application of the enhancement for inchoate offenses, such as the robbery conspiracy in this case, and the record amply supports the district court's finding that appellants intended that firearms would be possessed during the robbery and that such possession was reasonably foreseeable." Br. for Appellee at 19-20. We therefore affirm the judgment of the District Court on this point.

         We agree with Appellants that the case must be remanded to allow the District Court to address whether the alleged police introduction of firearms into the conspiracy was sentencing entrapment. The Government contends that, because Appellants did not properly raise sentencing entrapment with the District Court, the court was not required to address the matter. Id. at 20. The issue is not as simple as the Government suggests. At worst, Appellants Wallace and McKeever were not as clear as they might have been in raising with the District Court their claims that they were entitled to downward variances in their sentences because they were victims of sentencing entrapment. The record also suggests that the trial judge had an inkling of the issue, but never addressed it. And there is no doubt that Appellant Hopkins expressly raised an argument for mitigation based on sentencing entrapment, but the trial judge never considered his request. Moreover, in its brief to this court, the Government not only appears to acknowledge that Hopkins raised the issue with the District Court, but goes on to concede that, "[t]o the extent that this Court finds that Hopkins sufficiently asserted a sentencing manipulation argument below, we agree that discussion of the point would have been in order." Id.

         In circumstances such as these, when we cannot discern the District Court's disposition of the sentencing entrapment issue, justice will be best served if we remand the case to afford the trial judge an opportunity to address the issue in the first instance. See United States v. Saani, 650 F.3d 761, 771-72 (D.C. Cir. 2011) (remanding the case "for resentencing solely because the record [wa]s unclear as to whether an arguably improper consideration infected the district court's decisions to deny [appellant] credit for accepting responsibility pursuant to U.S.S.G. § 3E1.1 and to vary upward from the Guidelines sentencing range pursuant to 18 U.S.C. § 3553(a)"); United States v. Williams, 951 F.2d 1287, 1291 (D.C. Cir. 1991) (explaining that an appellate court has the inherent authority to remand the record when it is unable to determine the basis for the District Court's actions).

         Finally, we find no merit in Appellant Hopkins' other challenges. We therefore affirm the judgment of the District Court with respect to the various claims raised by Appellant Hopkins.

         I. Background

         In January 2013, the Metropolitan Police Department received information that Appellant Hopkins had been released from jail and was seeking to purchase a large quantity of narcotics. Hoping to waylay Hopkins, Officer Miguel Rodriguez-Gil, acting in an undercover capacity, reached out to Hopkins and arranged to meet. Rodriguez-Gil and several other undercover officers met with Hopkins and Appellant Wallace on January 23 to discuss a potential drug deal. It quickly became apparent, however, that Hopkins and Wallace did not have the money necessary to purchase the quantity of drugs that the officers had available to sell.

         Rodriguez-Gil decided to switch tactics and asked Hopkins and Wallace if they would be interested in committing a robbery. Rodriguez-Gil explained that a certain individual owed him money for narcotics, and that Hopkins and Wallace could help get the money back. Hopkins and Wallace responded enthusiastically.

         The officers met several times with Hopkins in March to discuss the details of the planned robbery. At one of these meetings, Hopkins introduced the officers to Appellant McKeever, who actively contributed to the meeting's discussion. As part of that discussion, Rodriguez-Gil asked Hopkins and McKeever "what kind of weapons would they want, " and suggested that the officers could bring firearms. In response, Hopkins indicated that Appellants could also bring firearms. Hopkins later informed the officers that he had obtained the firearms, and that "his team" was ready.

         Sometime on or near April 4, 2013, the officers and Appellants discussed that the robbery was to be of a liquor store; Appellants were led to believe that the owner of the liquor store was to be the victim of the robbery scheme. The plan, as understood by the Appellants, was that they would rob the liquor store. At one point in the planning, Rodriguez-Gil showed Hopkins a photograph of the store.

         On April 4, 2013, the three Appellants, along with Benny-Dean, arrived together at a loading dock in front of a storage facility to make final preparations for the robbery. Rodriguez-Gil arrived in an undercover vehicle. Hopkins and Wallace entered Rodriguez-Gil's vehicle, and Rodriguez-Gil handed each man a firearm to inspect. Hopkins indicated that McKeever was supposed to have brought firearms as well, but, in the rush, had left them behind. As a result, none of the Appellants had a firearm of his own.

         Rodriguez-Gil, several other undercover officers, the Appellants, and Benny-Dean then entered the storage facility. The officers led the men to a room within the facility that had been set up with audio and video equipment. In that room, the group discussed the layout of the liquor store and how the robbery would proceed. Each Appellant participated: Wallace stated that he would bring one of Rodriguez-Gil's firearms to the store. McKeever inquired as to whether the store was fitted with an alarm system. And Hopkins mentioned that he could get the store owner to give up the money by applying a curling iron to the owner's groin. Following these discussions, an Emergency Response Team entered the room and arrested Appellants and Benny-Dean.

         As noted above, Appellants and Benny-Dean were indicted for conspiracy to interfere with interstate commerce by robbery, pursuant to the Hobbs Act, 18 U.S.C. § 1951. Appellants each pled guilty before the District Court. Benny-Dean proceeded to trial and was acquitted by a jury.

         The District Court then sentenced Appellants to the terms noted above. Wallace and McKeever were sentenced on October 9, 2013, at a joint sentencing hearing, while Hopkins was sentenced on December 12, 2013, at a separate hearing. At each hearing, the District Court determined the sentencing range suggested by the U.S. Sentencing Commission Guidelines Manual ("Guidelines") then in effect. The District Court applied § 2X1.1, the Conspiracy Guideline. Following § 2X1.1's instructions, the District Court utilized the base offense level and adjustments set forth in § 2B3.1, the Robbery Guideline. One such adjustment was § 2B3.1(b)(2)(C) (the "Gun Bump"), pursuant to which a defendant's sentence may be enhanced "if a firearm was brandished or possessed" in the commission of the offense. The District Court explained that this adjustment was appropriate because Appellants had each been aware that the intended robbery was to involve firearms. The District Court concluded the hearings by sentencing each Appellant to the low end of the Guidelines range applicable to him.

         Appellants now appeal their sentences. They contend that the District Court should not have applied the Gun Bump in calculating their Guidelines ranges. They also argue that the District Court failed to consider the requisite statutory factors set forth in 18 U.S.C. § 3553(a), in light of Appellants' objections that the police officers had engaged in sentencing entrapment by allegedly introducing firearms into the conspiracy for the purpose of enhancing Appellants' sentences.

         Appellant Hopkins raises numerous additional challenges to his conviction and sentence. Hopkins argues that the District Court lacked subject matter jurisdiction; that the officers' conduct violated Due Process; that his guilty plea was invalid because there was no factual basis for the plea and he did not understand the nature of his offense; that his sentence was unreasonable because the District Court failed to consider mitigating circumstances and because his criminal history category had been miscalculated; and, finally, that his counsel was constitutionally defective in failing to properly investigate his criminal history and alert the District Court to the alleged miscalculation.

         II. Analysis

         A. Standards of Review

         "In United States v. Booker, 543 U.S. 220 (2005), the United States Supreme Court declared the Sentencing Guidelines to be advisory only and instructed appellate courts to review sentences for reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). After Booker, our review of sentencing challenges that have been properly preserved is for abuse of discretion under a two-step analysis." United States v. Locke, 664 F.3d 353, 356 (D.C. Cir. 2011) (citations omitted); see also Gall v. United States, 552 U.S. 38, 51 (2007).

         At the first step, we "ensure that the district court committed no significant procedural error, " such as "improperly calculating[] the Guidelines range, . . . failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Gall, 552 U.S. at 51. "We review purely legal questions de novo and factual findings for clear error, and we give 'due deference' to the district court's application of the Guidelines to facts. At the second step, we consider the substantive reasonableness of the sentences in light of the totality of the circumstances, reversing only if we conclude that the district court abused its discretion." United States v. Jones, 744 F.3d 1362, 1366 (D.C. Cir. 2014) (quoting United States v. Henry, 557 F.3d 642, 645 (D.C. Cir. 2009)).

         In the discussion below, we refer to the Guidelines in effect at the time Appellants were sentenced. 18 U.S.C. § 3553(a)(4)(A)(ii) (directing courts to generally use the Guidelines "in effect on the date the defendant is sentenced"). For Wallace and McKeever, the 2012 Guidelines apply; for Hopkins, the 2013 Guidelines apply. These two versions of the Guidelines are substantially the same.

         B. ...


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