United States Court of Appeals, District of Columbia Circuit
March 18, 2016
from the United States District Court for the District of
Columbia (No. 1:13-cr-00109-3) (No. 1:13-cr-00109-2) (No.
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.
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.
Edwards, Senior Circuit Judge:
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.
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
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.
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.
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.
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).
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.
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.
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
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
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.
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.
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.
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.
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
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
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.
Standards of Review
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
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)).
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