Summary
The United States Court of Appeals for the Second Circuit affirmed Roderick Gunn’s amended judgment of conviction and 360-month sentence. The court held that consecutive sentences may be imposed for conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery, even when the aggregate sentence exceeds the Hobbs Act’s maximum punishment for a single offense. The court also rejected Gunn’s pro se challenges concerning criminal-history calculations and other sentencing issues.
Topics
Practice areas
Questions Presented
- Whether a district court may impose consecutive sentences for conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery arising from the same robbery, even when the aggregate sentence exceeds the Hobbs Act's maximum punishment for a single offense.
- Whether the district court plainly erred in including Gunn's prior state and federal convictions in his criminal history category.
- Whether the district court plainly erred in applying the Guidelines' first-degree-murder cross-reference.
- Whether Gunn was entitled to a three-level reduction under U.S.S.G. § 2X1.1(b)(1) or (2).
- Whether the district court adequately considered Gunn's sentencing arguments and explained its decision to impose consecutive sentences.
- Whether the district court was required to apply Guidelines Amendment 826 at the May 2024 resentencing.
Holdings
- A district court may impose consecutive sentences for conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery, including consecutive terms whose aggregate exceeds the Hobbs Act's maximum punishment for a single violation.
- The district court did not clearly err in treating Gunn's prior state attempted-robbery conviction and convictions from his earlier federal case as conduct not part of the instant offense and in counting them toward his criminal history category.
- The district court did not plainly err in applying the first-degree-murder cross-reference under U.S.S.G. §§ 2B3.1 and 2A1.1.
- Gunn was not entitled to the three-level reduction under U.S.S.G. § 2X1.1(b)(1) or (2) because the conspiracy and attempted robbery came close enough to fruition to satisfy the exception to the reduction.
- The district court adequately considered Gunn's sentencing arguments and sufficiently explained the sentence, including the consecutive sentences.
- The district court did not err in declining to apply Amendment 826 because the amendment was not effective when Gunn was resentenced in May 2024.
Key quotations
“We hold that district courts may impose consecutive sentences, even exceeding in the aggregate the Act’s maximum punishment, for attempted Hobbs Act robbery and conspiracy to commit Hobbs Act robbery.” (at 2)
“We have never held that Congress intended to treat Hobbs Act robbery conspiracy and attempt as “successive stages of a single undertaking.”” (at 16)
“Accordingly, the district court did not err, let alone plainly err, in sentencing Gunn to consecutive terms of imprisonment on Counts One and Three.” (at 19)
Factual background
Gunn participated in a crew that robbed narcotics traffickers to obtain drugs and drug proceeds. The appeal principally concerned the Wickham Robbery, in which Gunn participated and during which a co-conspirator shot and killed Gary Grey. After convictions on conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and marijuana-distribution conspiracy, Gunn's § 924(c) and § 924(j) convictions were vacated and the district court imposed consecutive sentences totaling 360 months on the two Hobbs Act counts, plus a concurrent 60-month sentence on the marijuana count.
Procedural history
After a jury trial, Gunn was convicted of Hobbs Act robbery conspiracy, attempted Hobbs Act robbery, and marijuana-distribution conspiracy, among other charges. His convictions under 18 U.S.C. §§ 924(c) and 924(j) were later vacated under § 2255 in light of Johnson, Davis, Taylor, and Barrett. The Southern District of New York resentenced him de novo to 180 months on Count One and 180 months on Count Three consecutively, with 60 months on Count Eight concurrently. The Second Circuit affirmed.