United States v. Darius McKeever ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2016 Decided June 10, 2016
No. 13-3096
UNITED STATES OF AMERICA,
APPELLEE
v.
DARIUS MCKEEVER,
APPELLANT
Consolidated with 13-3105, 13-3109
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.
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Before: PILLARD and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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
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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
4
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
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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
6
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.
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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
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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
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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. The Gun Bump
The Sentencing Guidelines specify a five-level
enhancement for a conspiracy to commit robbery if it is
established “with reasonable certainty” that the conspirators
intended to possess or brandish a firearm during the crime.
10
See Guidelines §§ 2B3.1(b)(2)(C) (five-level enhancement
warranted if firearm brandished or possessed during robbery);
2X1.1(a) (for inchoate offense, base offense level is to be
determined “from the guideline for the substantive offense,
plus any enhancements from such guideline for any intended
offense conduct that can be established with reasonable
certainty”). Appellants argue that the District Court erred in
applying this so-called “Gun Bump” enhancement to their
sentences.
Appellants first contend that Ҥ 2B3.1(b)(2) applies to a
defendant’s actual conduct, not intended conduct, and because
§ 2B3.1 explicitly covers conspiracy to commit a Hobbs Act
robbery, § 2X1.1 does not apply.” Br. of Appellants at 13. In
support of this position, Appellants cite United States v.
Campa, 529 F.3d 980, 1014 (11th Cir. 2008); United States v.
Van Boom, 961 F.2d 145, 146-47 (9th Cir. 1992); and United
States v. Williams, 891 F.2d 962, 965 (1st Cir. 1989). Id. at 31
n.14.
The Government argues that Appellants’ position rests on
a misguided reading of the Sentencing Guidelines:
[T]he Guidelines [direct] that, “[i]f the offense involved a
conspiracy, attempt or solicitation, refer to § 2X1.1
(Attempt, Solicitation, or Conspiracy) as well as the
guideline referenced in the Statutory Index for the
substantive offense.” U.S.S.G. § 1B1.2(a). Section
2X1.1(c) even more specifically directs that “[w]hen an
attempt, solicitation, or conspiracy is expressly covered
by another offense guideline section, apply that guideline
section.” U.S.S.G. § 2X1.1(c). Section 2B3.1, the
guideline for robbery, is not included in the list of
sections that expressly covers conspiracies. Therefore,
the guidelines direct courts to apply § 2X1.1 in
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determining a defendant’s sentence for conspiracy to
commit robbery.
Br. for Appellee at 30-31 (third and fourth alterations in
original).
In support of its position, the Government cites United
States v. Gonzales, 642 F.3d 504, 505 (5th Cir. 2011) (per
curiam); United States v. Mershon, 322 F. App’x 232, 236 (3d
Cir. 2009); United States v. Martinez, 342 F.3d 1203, 1205
(10th Cir. 2003) (citing United States v. Bolden, 132 F.3d
1353, 1357 (10th Cir. 1997)); United States v. Joost, No. 95-
2031, 1996 WL 480215, at *11-12 (1st Cir. Aug. 7, 1996);
and United States v. Amato, 46 F.3d 1255, 1259-61 (2d Cir.
1995). The Government also suggests that the First Circuit no
longer follows Williams, 891 F.2d 962, a case cited by
Appellants; instead, it now applies § 2X1.1 to conspiracies
under the Hobbs Act. Br. of Appellee at 31 n.22 (citing Joost,
1996 WL 480215, at *12). The Government additionally
points out that “the Eleventh Circuit case cited by appellants
based its holding on United States v. Skowronski, 968 F.2d
242, 250 (2d Cir. 1992), a Second Circuit decision that was
later overruled in Amato. See United States v. Thomas, 8 F.3d
1552, 1564-65 (11th Cir. 1993).” Id. at 32 n.22.
We think that the Government has the better of this
argument. “We start with the text and structure of the
Guidelines.” United States v. Chatman, 986 F.2d 1446, 1450
(D.C. Cir. 1993). Section 1B1.1 directs the sentencing court to
begin by determining the applicable guideline section
pursuant to § 1B1.2. Guidelines § 1B1.1(a)(1). Section 1B1.2
instructs the court to “[r]efer to the Statutory Index (Appendix
A) to determine the Chapter Two offense guideline.”
Id. § 1B1.2(a). As Appellants point out, the Statutory Index
lists “2B3.1” for the Hobbs Act, but does not list § 2X1.1. Id.
12
at Appendix A. However, the next sentence in § 1B1.2
expressly states: “If the offense involved a conspiracy,
attempt, or solicitation, refer to § 2X1.1 . . . .” Id. § 1B1.2(a)
(emphasis added). This language indicates that § 2X1.1 is the
proper section to which the court should generally look in
determining sentences for conspiracy crimes with respect to
which there are no specific guidelines, like here. See
Martinez, 342 F.3d at 1206.
Section 2X1.1(c) states that “[w]hen an attempt,
solicitation, or conspiracy is expressly covered by another
offense guideline section, apply that guideline section.”
Guidelines § 2X1.1(c). The Commentary to § 2X1.1 provides
that “Offense guidelines that expressly cover conspiracies
include:” – and then lists 19 guideline sections that involve
conspiracies. Id. § 2X1.1 Application Note 1 (for example,
§ 2A1.5 (“Conspiracy or Solicitation to Commit Murder”)).
Section 2B3.1 is not among the sections listed, nor does
§ 2B3.1 expressly cover conspiracies. Therefore, it appears
plain that, for a Hobbs Act robbery conspiracy, a sentencing
court should apply § 2X1.1 and not § 2B3.1. See Martinez,
342 F.3d at 1206 (noting that § 2B3.1 does not expressly
cover attempted robbery).
Appellants argue that the term “expressly” in § 2X1.1(c)
refers to the underlying statute, not to the guideline section. In
Appellants’ view, because statutes like the Hobbs Act
expressly mention conspiracies, a court should apply the
guideline section listed in the Statutory Index (which, for a
Hobbs Act robbery, is § 2B3.1). See United States v.
Hernandez-Franco, 189 F.3d 1151, 1158-59 (9th Cir. 1999);
Thomas, 8 F.3d at 1564-65. We reject this view, however,
because it is contrary to the text of § 2X1.1(c), “which speaks
specifically in terms of relevant guideline sections and not
underlying statutes.” Martinez, 342 F.3d at 1207; see also
13
Guidelines § 2X1.1(c) (“expressly covered by another offense
guideline section” (emphasis added)). The text of the
Guidelines nowhere suggests that the language of the
underlying statute should be considered.
Appellants also point out that one of the aforementioned
guideline sections listed in the Commentary to § 2X1.1 –
§ 2H1.1 – does not expressly mention the word “conspiracy.”
Thus, according to Appellants, § 2X1.1(c) does not require
that the conspiracy be “expressly covered by another offense
guideline section,” even though that is what the text of
§ 2X1.1(c) says. Guidelines § 2X1.1(c). Appellants are
correct that the word “conspiracy” does not appear in
§ 2H1.1. However, this fact is not a reason to ignore the plain
text of the Guidelines. Stinson v. United States, 508 U.S. 36,
38 (1993) (Commentary is not authoritative if inconsistent
with the Guidelines’ plain text). Moreover, § 2H1.1 appears to
be structured to include conspiracies: it directs courts to
consider “the offense level from the offense guideline
applicable to any underlying offense,” Guidelines
§ 2H1.1(a)(1), and the Commentary to § 2H1.1 mentions
“conspiracy,” id. at § 2H1.1 Application Note 1. In other
words, we find no merit in Appellants’ position.
Finally, in their Reply Brief, Appellants belatedly attack
the Government’s reliance on Amato, 46 F.3d 1255. Reply Br.
of Appellants at 9-12. In Amato, the court distinguished
Skowronski, 968 F.2d at 250, an earlier decision from the
Second Circuit that had applied § 2B3.1 to a Hobbs Act
conspiracy. Amato, 46 F.3d at 1261. The Amato court
explained:
When Skowronski was decided, § 2E1.5 of the Guidelines
expressly referred Hobbs Act violations to . . . § 2B3.1
. . . . That provision, however, was deleted from the
14
Guidelines. USSC App. C, amend. 481 (Nov. 1993). . . .
Now that there is no longer a provision of guidelines
directing Hobbs Act conspiracies to § 2B3.1, they are
covered by the conspiracy guideline, § 2X1.1.
Id. (citing Skowronski, 968 F.2d at 250). Appellants argue that
the 1993 amendment was not intended “to apply § 2X1.1 to
Hobbs Act robbery conspiracies,” but rather “to make the
Guidelines more manageable and consistent.” Reply Br. of
Appellants at 11-12. It is noteworthy that Appellants’
argument rests on an assumption that the former § 2E1.5,
entitled “Hobbs Act Extortion or Robbery,” covered Hobbs
Act conspiracies. Guidelines § 2E1.5 (1992). They are
mistaken in their assumption. Furthermore, as our discussion
above makes clear, our disposition of the “gun bump” issue
rests on the text and structure of the Guidelines, not on the
analysis in Amato. Therefore, we do not find Appellants’
argument to be compelling. In any event, Appellants failed to
preserve this argument, so we need not address it here. MBI
Grp., Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568, 575
(D.C. Cir. 2010) (noting that, in general, arguments made for
the first time in reply briefs are forfeited).
Appellants additionally contend that “the mere fact that
[they] . . . discussed using guns in the robbery [is]
insufficient” to justify a Gun Bump enhancement in
sentencing. Br. of Appellants at 21. According to Appellants,
a Gun Bump enhancement can only apply if Appellants
actually possessed firearms, not if they simply agreed to bring
firearms to a robbery. Id. at 22, 32. Appellants’ position is
mistaken.
Section 2X1.1(a) directs courts to apply “[t]he base
offense level from the guideline for the substantive offense,
plus any adjustments from such guideline for any intended
15
offense conduct that can be established with reasonable
certainty.” Guidelines § 2X1.1(a) (emphasis added). The
Commentary to § 2X1.1 further illustrates:
[T]he . . . specific offense characteristics from the
guideline for the substantive offense that apply are those
that are determined to have been specifically intended or
actually occurred. . . . For example, if two defendants are
arrested during the conspiratorial stage of planning an
armed bank robbery, the offense level . . . . would . . .
reflect the level applicable to robbery . . . with the
enhancement for possession of a weapon.
Id. § 2X1.1 Application Note 2 (emphasis added).
The Commentary makes quite clear that actual possession
is not required for the Gun Bump to apply. See Stinson, 508
U.S. at 38 (Guidelines Commentary is generally
authoritative). And, as the District Court noted, each
Appellant need not intend to personally possess a firearm.
Rather, “it is enough that the defendant was aware that
brandishing or possessing firearms was part of the
conspiratorial agreement.” United States v. Capanelli, 479
F.3d 163, 167 (2d Cir. 2007) (per curiam); see also
Guidelines § 1B1.3(a)(1)(B) (offense conduct includes “all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity”
(emphasis added)). The District Court did not err in
interpreting § 2X1.1.
Finally, Appellants contend that the District Court erred
in finding that each Appellant was aware that the robbery
would involve firearms. In making this finding, the District
Court credited the testimony of Rodriguez-Gil, who appeared
at the sentencing hearing that was held for Wallace and
16
McKeever on October 9, 2013. Appellants assert that
“Rodriguez-Gil’s testimony about Appellants’ discussions
regarding firearms is incredible” because it is allegedly
inconsistent and “devoid of details.” Br. of Appellants at 19.
This is a groundless argument, and it certainly does not
support Appellants’ contention that the District Court’s
finding was clearly erroneous.
In sum, we have no basis upon which to overturn the
District Court’s application of the Gun Bump enhancement to
Appellants’ sentences.
C. Sentencing Entrapment
“Before United States v. Booker, 543 U.S. 220 (2005),
rendered the U.S. Sentencing Guidelines advisory, we forbade
district courts from relying on sentencing [entrapment] as a
basis for mitigation. See United States v. Walls, 70 F.3d 1323,
1329–30 (D.C. Cir. 1995). But Booker and its offspring
fundamentally changed the sentencing calculus, requiring
courts to now consider any mitigation argument related to the
sentencing factors contained in 18 U.S.C. § 3553(a) when
imposing a sentence within the statutory range of
punishment.” United States v. Bigley, 786 F.3d 11, 12 (D.C.
Cir. 2015) (per curiam). The law of the circuit is now clear
that a defendant may raise a mitigation argument resting on
sentencing entrapment to request a downward variance in his
sentence. And “[w]hen a district court confronts a
nonfrivolous argument for a sentence below the relevant
guideline range, it must consider it.” Id. at 14 (citing Locke,
664 F.3d at 357).
The theory of sentencing entrapment is “that if the
government induces a defendant to commit a more serious
crime when he was predisposed to commit a less serious
17
offense, the defendant should be sentenced only for the lesser
offense.” Walls, 70 F.3d at 1329. “The main element in any
entrapment defense is . . . the defendant’s ‘predisposition’—
‘whether the defendant was an “unwary innocent” or, instead,
an “unwary criminal” who readily availed himself of the
opportunity to perpetrate the crime.’” Id. (quoting Mathews v.
United States, 485 U.S. 58, 63 (1988)).
Appellants claim that they requested variances to account
for the police introduction of the guns into the conspiracy to
trigger the 5-level enhancement. Br. of Appellants at 32-34.
However, according to Appellants, the District Court “never
evaluated the [requisite] statutory [§ 3553(a)] factors” to
address their sentencing entrapment claims. Id. at 34.
The Government’s response is perplexing. On the one
hand, the Government argues that Appellants Wallace and
McKeever never “argued that, once the district court applied
the gun enhancement, it should consider the fact that the
weapons were supplied by undercover officers when
determining the appropriate sentence under 18 U.S.C.
§ 3553(a).” Br. for Appellee at 36. However, the Government
acknowledges that Appellant “Hopkins argued for a
‘modicum of mitigation’ because the undercover officers
supplied the firearms that triggered the gun enhancement.” Id.The Government then tellingly concedes that
[i]f this Court finds that Hopkins adequately raised a
sentencing manipulation argument for mitigation before
the district court, we agree that discussion of the point
would have been in order pursuant to Bigley, 786 F.3d at
16 (finding plain error where district court failed to
consider defendant’s nonfrivoulous mitigation argument).
18
Id. at 36 n.23. The Government also tellingly acknowledges
that, with respect to all three Appellants, the trial judge
apparently was aware of the sentencing entrapment issue:
Although such discussion did not occur at Hopkins’s
sentencing hearing on December 12, 2013, the record
demonstrates that the district court was aware that the
firearms were supplied by undercover officers and, in
determining the appropriate sentences in this case, the
district court considered that the offense was “created by
the police.”
Id. (quoting Tr. of Joint Sentencing Hearing at 135 (Oct. 9,
2013), Supplemental Appendix (“S.A.”) 228). The
Government also appears to concede that “the record as a
whole demonstrates that the judge considered [the sentencing
manipulation] argument and nonetheless considered a
guidelines sentence appropriate.” Id. at 37 n. 23.
Our review of the record reveals that Appellants Wallace
and McKeever did not explicitly raise “sentencing
entrapment” with the District Court. However, as the
Government notes, the District Court appeared to understand
that sentencing entrapment was an issue. Appellant Hopkins,
on the other hand, did raise the issue. Nevertheless, the
District Court’s statements leave it unclear what the court
meant to do with the sentencing entrapment issue.
Appellants were sentenced before the decision in Bigley
was issued. During this time – i.e., post-Booker, but pre-
Bigley – there may have been confusion as to whether this
circuit’s pre-Booker case law on sentencing entrapment
remained in effect. See Bigley, 786 F.3d at 16 (district court
“may have thought it was prohibited, as a matter of law, from
considering” sentencing entrapment); United States v.
19
Oliveras, 359 F. App’x 257, 261 n.5 (2d Cir. 2010) (“[T]he
D.C. Circuit has strongly suggested that it would not
recognize [the sentencing entrapment] doctrine.”); United
States v. Beltran, 571 F.3d 1013, 1019 n.1 (10th Cir. 2009)
(“The Sixth and D.C. Circuits categorically reject the doctrine
of sentencing [entrapment] . . . .”). The Government does not
dispute Appellants’ assertion that confusion over the state of
the law existed at the time of their sentencing.
During their joint sentencing hearing, it appears that
Appellants Wallace and McKeever may have attempted to
raise sentencing entrapment as a mitigation argument. The
matter, however, is far from clear. In his sentencing
memorandum, Appellant Wallace generally requested “a
variance to account for all the mitigating circumstances of the
case.” Wallace’s Sentencing Memorandum at 14, Joint
Appendix (“J.A.”) 59. Then, at the sentencing hearing,
Wallace’s counsel made arguments that referenced the fact
that the officers were the ones who brought firearms to the
scene:
At that point when they first arrived there and they go
into the storage – and they go into the car, into the
officer’s car, and there’s a show of the guns . . . . An
undercover officer gives you a gun, what are you
supposed to – what are you supposed to do?
Tr. of Joint Sentencing Hearing at 97, 102, S.A. 191, 196.
McKeever’s counsel similarly made statements intended
to distance his client from the police officers’ firearms. Id. at
108, S.A. 202 (“McKeever doesn’t bring a weapon on April
4th, and there’s no evidence that anyone else did . . . .”). The
statements by McKeever’s counsel were undoubtedly vague,
so they prove very little. And McKeever, unlike Wallace, did
20
not request a variance in his sentencing memorandum. We
note, however, that Wallace and McKeever were sentenced at
a joint hearing. And at oral argument, Wallace’s counsel
noted that she and McKeever’s counsel had purposefully tried
to avoid repeating themselves because the District Court was
accepting one counsel’s argument to apply to both parties.
Recording of Oral Argument at 15:24-43; see also United
States v. Pardo, 636 F.2d 535, 541 (D.C. Cir. 1980) (“[I]n
certain situations, it may be redundant and inefficient to
require each defendant in a joint trial to stand up individually
and make every objection to preserve each error for appeal.”);
United States v. Love, 472 F.2d 490, 496 (5th Cir. 1973)
(permitting defendant to rely upon a co-defendant’s argument
where failure to do so would cause a “miscarriage of justice”).
In addition – as the Government points out – the trial
judge, when addressing Wallace, made statements suggesting
that that she may have been aware of the sentencing
entrapment issue:
You know, I understand that this is created by the police,
I clearly understand, and it’s for that reason, coupled with
the fact that obviously you can’t exercise very sensible
judgment, but that’s not an excuse for a crime. But I’m
going to sentence consistent with the low end of the
guidelines.
Tr. of Joint Sentencing Hearing at 135, S.A. 229 (emphasis
added). The Government argues that the trial court’s decision
to “sentence consistent with the low end of the guidelines,”
id., “demonstrates that the judge considered [the sentencing
entrapment] argument and nonetheless considered a
guidelines sentence appropriate.” Br. of Appellee at 37 n. 23.
Neither the Government nor this court is in a position to
confirm this assertion on the current record.
21
The record with respect to Appellants Wallace and
McKeever is a muddle and, thus, gives us no coherent
grounds for resolving the sentencing entrapment issue. So far
as we can tell, no one is really at fault here. The law was in
flux, the Appellants were imprecise in advancing their claims,
and it is unclear whether the District Court meant to reject
Appellants’ requests for sentence variances or whether it
simply failed to address the issue. In these circumstances, we
will not search for error when we have at hand a simple
solution that will better serve the ends of justice. As we noted
at the outset of this opinion, when the sentencing record from
the trial court is unclear, it is within the authority of the
appellate court to 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 at 771-72. We will therefore
remand the sentencing entrapment claims raised by
Appellants Wallace and McKeever.
We will also remand the matter relating to Appellant
Hopkins because he clearly raised sentencing entrapment with
the District Court. In his sentencing memorandum, Hopkins’
counsel argued that “the Court should grant a variance to
account for all the mitigating circumstances of the case.”
Hopkins’ Sentencing Memorandum at 10, J.A. 98. Then, at
Hopkins’ sentencing hearing, counsel amplified, as follows:
[T]he other significant thing in this case, it smells of . . . .
Entrapment . . . . For that reason – although he is guilty
. . . . there should be a modicum of mitigation in the
sentence . . . . I mean, these were people who . . . couldn’t
even get guns to commit the robbery. The police had to
bring those to the table. And of course, they brought them
to the table knowing that that would result in a greatly
enhanced sentence . . . . So all that being said . . . this is a
22
case . . . warrant[ing] a downward departure based solely
on the Court’s discretion to impose a sentence that is not
[in]sufficient but not more than necessary.
Tr. of Hopkins’ Sentencing Hearing at 9-11 (Dec. 12, 2013),
S.A. 259-61. There is no question as to what Hopkins’
counsel was seeking on behalf of his client. Yet, the District
Court never expressly addressed the issue.
The trial court was aware that police had brought the
firearms. Id. at 13-14, S.A. 263-64 (“Admittedly, [Appellants]
did not actually bring the firearms. The police did, or the
undercovers.”). And the court indicated that it wanted to
sentence Hopkins in the same manner that it was sentencing
the other Appellants. Id. at 17, S.A. 267 (“I’m trying to be
sort of fair and compare what I’ve done with the other people,
considering your role here. I’m going to sentence [Hopkins]
on Count 1 to [the low end of the Guidelines.]”).
Unfortunately, we are unable to discern what the trial judge
meant to say about sentencing entrapment. Therefore, the case
must be remanded. See Locke, 664 F.3d at 357 (making it
clear that the District Court must adequately explain the
chosen sentence); Saani, 650 F.3d at 771-72 (“remand[ing]
[defendant’s] case to the district court for resentencing solely
because the record [wa]s unclear as to” what the district court
had relied upon in issuing defendant’s sentence).
D. Hopkins’ Remaining Arguments
Appellant Hopkins raises multiple additional arguments,
both in Appellants’ joint brief as well as in a supplemental
pro se brief. None of these arguments was raised before the
District Court. Therefore, unless otherwise indicated below,
we review these claims under the plain error standard. FED R.
CRIM. P. 51(b), 52(b); see Molina-Martinez v. United States,
23
136 S. Ct. 1338, 1343 (2016) (explaining the elements of
plain error review). We find no merit in these claims.
1. Manufactured Jurisdiction
The Hobbs Act “punish[es] interference with interstate
commerce by extortion, robbery or physical violence.”
Stirone v. United States, 361 U.S. 212, 215 (1960) (citing 18
U.S.C. § 1951(a)). Appellant Hopkins asserts that the
Government impermissibly “manufactured” an interstate
commerce nexus to come within the reach of the Hobbs Act.
That is, he claims that the police purposefully manipulated the
object of the conspiracy by inviting defendants in D.C. to
engage in a plan to rob a store in Maryland. He argues, as
follows:
Appellant submits that the crime to which he pled
guilty was a crime punishable in the District Court solely
due to the falsehoods generated exclusively by the
undercover agents.
Had the sham liquor store been located on the other
side of Southern Avenue, S.E., the government would
have faced a challenge to its jurisdiction. Had the
imaginary store not sold liquor, another interstate nexus
would have disappeared. And had the government
targeted the imaginary store owner for robbery as he
walked down the street, the government claim to
interstate jurisdiction would have evaporated.
The exclusively local offense of robbery was
promoted into an interstate criminal effort based
exclusively on the imaginary facts of the undercover
operation. Moreover, these were not ad hoc falsehoods
24
that were made up as things went along. They were part
of a plan to establish federal jurisdiction.
When federal officers supply the interstate element
to otherwise local offenses, reversal is required to
maintain the fundamental integrity of the criminal justice
system. United States v. Archer, 486 F.2d 670, 682 (2d
Cir. 1973).
Br. of Appellants at 37.
The parties disagree over the applicable standard of
review. Hopkins acknowledges that he failed to raise this
claim below, but argues that, under the law of the circuit,
subject matter jurisdiction “involves a court’s power to hear a
case [so] can never be forfeited or waived.” United States v.
Delgado-Garcia, 374 F.3d 1337, 1341 (D.C. Cir. 2004)
(citation omitted). The Government, on the other hand,
attempts to distinguish a claim of “manufactured” jurisdiction
from other subject matter jurisdiction arguments. This is an
issue of first impression in this circuit. We need not resolve
the question because Hopkins’ claim fails under any standard.
The concept of manufactured jurisdiction originates from
United States v. Archer, 486 F.2d 670 (2d Cir.), reh’g denied
per curiam, 486 F.2d 683 (2d Cir. 1973). There, the Second
Circuit refused to find jurisdiction under a federal act, where
the government claimed that certain actions, completely
unrelated to its undercover operation, created an interstate
nexus. Id. at 681-83. Subsequent courts have generally
“refused to follow Archer when there is any link between the
federal [jurisdictional] element and a voluntary, affirmative
act of the defendant.” Al-Cholan, 610 F.3d at 953 (alteration
in original) (citation omitted). We followed this approach in
United States v. Taplet, 776 F.3d 875 (D.C. Cir. 2015), a case
25
with facts similar to the facts here. In Taplet, we held that
because “Taplet ‘freely participate[d]’ in the jurisdictional act,
[he could not] claim that the government manufactured
jurisdiction.” Id. at 882 (first alteration in original) (citation
omitted). Here Hopkins “freely participated” in the plan to rob
the liquor store, so there was a clear link between the federal
jurisdictional element and Hopkins’ voluntary, affirmative
acts.
Hopkins points out that the purpose of the robbery was
simply to strip the store owner of his assets. Br. of Appellants
at 40-42 (citing cases for the proposition that robberies of
private individuals do not affect commerce); Reply Br. of
Appellants at 23. This is irrelevant, however. What matters is
that Hopkins agreed to rob a store that was engaged in
interstate commerce. He does not dispute this. Therefore, the
action was covered by the Hobbs Act. See United States v.
Harrington, 108 F.3d 1460, 1469-70 (D.C. Cir. 1997). In
Harrington, which involved a robbery of a restaurant that
engaged in interstate commerce, we explained:
We do not rest our holding on the understanding that the
defendant was “engaged in interstate commerce” when he
participated in the robbery of the restaurant; rather, we
rely on the undisputed fact that the restaurant was
engaged in interstate commerce, and we hold that the
Hobbs Act was properly applied here to protect that
commerce by punishing its obstruction and delay through
robbery.
Id. (citation omitted). The same principle applies here.
Therefore, we reject Appellant Hopkins’ claim of
manufactured jurisdiction.
26
2. Due Process
Hopkins argues that the police officers’ conduct in this
case “was so shocking to due process values that the
indictment must be dismissed.” Br. of Appellants at 38;
accord Pro Se Supplemental Br. at 7. This claim is clearly
without merit.
The Supreme Court has recognized that there may be
instances “in which the conduct of law enforcement agents is
so outrageous that due process principles” are violated.
United States v. Russell, 411 U.S. 423, 431-32 (1973). We
have explained, however, that “such a level of outrageousness
is not established by [just] showing ‘obnoxious behavior or
even flagrant misconduct on the part of the police.’” United
States v. Jenrette, 744 F.2d 817, 824 (D.C. Cir. 1984)
(citation omitted). Rather, “a defendant must establish that the
government had committed ‘coercion, violence, or brutality to
the person.’” United States v. Hinds, 329 F.3d 184, 190 (D.C.
Cir. 2003) (citation omitted). No such assertion has been
made here.
3. Hopkins’ Guilty Plea
Hopkins contends that his guilty plea was invalid because
there was no factual basis for the plea. In particular, he claims
that there was no evidence that he intended to interfere with
interstate commerce. He also claims that his Rule 11 colloquy
was ineffective because he was not made aware that a Hobbs
Act crime requires an effect on interstate commerce, nor was
he made aware that a conspiracy requires an agreement with
his co-conspirators, and not simply with the undercover police
officers.
27
Federal Rule of Criminal Procedure 11 requires that, for a
guilty plea to be valid, “the court must determine that there is
a factual basis for the plea.” FED R. CRIM. P. 11(b)(3). A
factual basis exists so long as the Government “proffer[s]
‘evidence from which a reasonable juror could conclude that
the defendant was guilty as charged.’” United States v. Ahn,
231 F.3d 26, 31 (D.C. Cir. 2000) (citation omitted). In
addition, the court must “inform the defendant of, and
determine that the defendant understands,” “the nature of each
charge to which the defendant is pleading.” FED R. CRIM. P.
11(b)(1)(G). However,
Rule 11 “does not require that the district court spell out
the elements of the charge in order to inform the
defendant adequately.” Instead, a plea colloquy must,
“based on the totality of the circumstances, lead a
reasonable person to believe that the defendant
understood the nature of the charge.”
United States v. Moore, 703 F.3d 562, 569 (D.C. Cir. 2012)
(citations omitted).
Here, there was a factual basis for the plea. There is no
question that Hopkins agreed to the planned robbery of a
liquor store, which was concededly engaged in interstate
commerce. And, as other circuits have held, it does not matter
whether the defendant specifically intended to affect interstate
commerce. See, e.g., United States v. Powell, 693 F.3d 398,
405 (3d Cir. 2012); United States v. Williams, 342 F.3d 350,
354 (4th Cir. 2003). We agree. Accordingly, given the
circumstances of this case, there was no plain error.
We also find no plain error in Hopkins’ Rule 11 colloquy.
The District Court explained to Hopkins that the elements of
the crime included “an agreement that existed between you
28
and at least one other person . . . to interfere with interstate
commerce by robbery.” Tr. of Plea Hearing at 17 (Sept. 12,
2013), S.A. 85. And it appeared that Hopkins understood the
nature of the charge. Id. at 17-18, S.A. 85-86 (“[D]id you
bring three other people to meet with the . . . undercover
officers . . . . And [did] you c[o]me to an agreement with
some of the people, or all of the people who were there, that
there would be a robbery of a commercial store? THE
DEFENDANT: Yes.”).
4. Hopkins’ Sentence
Finally, Hopkins challenges his sentence, contending that
the District Court failed to account for various “mitigating
circumstances.” He also claims that his criminal history was
improperly calculated, and that his counsel was
constitutionally defective in failing to bring that
miscalculation to the District Court’s attention. We have
carefully reviewed these arguments and conclude that they are
without merit and warrant no further discussion.
III. CONCLUSION
We hereby vacate Appellants’ sentences and remand the
case to the District Court for resentencing in accordance with
this opinion.
So ordered.