United States v. Gillespie

27 F.4th 934

UNITED STATES of America, Plaintiff – Appellee,

v.Darrell E. GILLESPIE, Defendant - Appellant.

No. 21-4146

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2022

Decided: March 8, 2022

ARGUED: John Hampton Tinney, Jr., HENDRICKSON & LONG, PLLC, Charleston, West Virginia, for Appellant. Monica D. Coleman, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Lisa G. Johnston, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and HEYTENS, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Heytens joined.

WILKINSON, Circuit Judge:

A jury convicted Darrell Gillespie of various offenses stemming from a series of armed home-invasion robberies. On appeal, he challenges one of his convictions for carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) and argues that his sentence was substantively unreasonable. Gillespie rightly points out that Hobbs Act conspiracy does not constitute a crime of violence. But the district court's contrary jury instruction was not plain error because the jury's special verdict form reveals that Gillespie was convicted under a Pinkerton theory of liability, which remains valid. Because he was not prejudiced by the improper jury instruction and because the district court adequately explained and justified his sentence, we affirm.

I.

A.

Darrell Gillespie and his friends Robert Barcliff, Keith Glenn, and Brandon Davis decided to steal guns, drugs, and money from drug dealers because they were less likely to report the crimes to the police. The conspirators understood they would need to use guns to successfully rob drug dealers. The robberies took place from 2011 to 2012 and stretched from Pennsylvania to Tennessee, although they were concentrated in West Virginia and Virginia.

Gillespie was present during the group's first robbery, which occurred in September 2011, and during which Barcliff used a gun to subdue the victim. The conspirators continued to engage in violent robberies throughout the winter of 2011. The robbery that underlies the § 924(c) charge at the heart of this appeal took place on December 13, 2011, in Kanawha City, West Virginia. The victim, Theodore Dues, left his apartment door unlocked in anticipation of his girlfriend's return from an afternoon shopping trip. While Barcliff and Glenn normally led the robberies, Davis and Gillespie insisted on entering first to prove their mettle to the gang. Wearing masks, Gillespie and Davis burst into Dues' apartment. In the ensuing tussle, Dues was struck with the butt of a pistol. The trial witnesses (Dues, Barcliff, Davis, and Glenn) unanimously agreed that at least some of the robbers were carrying firearms but were split on whether Gillespie was personally armed during the robbery.

After hearing yelling, Barcliff and Glenn entered the apartment to find Dues held at gunpoint and cradling his 8-month-old child. While searching the residence, the robbers discovered a second child in a bedroom, whom Barcliff tried to quiet. After ransacking the apartment, the conspirators located an ounce or two of marijuana and stole several hundred dollars from Dues' wallet. Adding insult to injury, Davis told Dues to quit selling drugs with his children in the residence and not to leave his door unlocked.

After several months of additional robberies, Gillespie, Glenn, and Davis were pulled over by West Virginia police on March 23, 2012. When officers searched the car, they discovered a victim's wallet, pepper spray, a mask, and several guns stolen by the gang the day before, including a fully automatic AK-47 replica.

B.

Gillespie and the other members of the gang were indicted in the Southern District of West Virginia. Gillespie and a co-defendant opted to go to trial under a fourteen-count Fifth Superseding Indictment. Several other conspirators pleaded guilty and testified against Gillespie at trial.

As relevant to this appeal, Gillespie was charged with robbery affecting interstate commerce (Hobbs Act robbery) in violation of 18 U.S.C. §§ 2 and 1951 ; conspiracy to commit robberies affecting interstate commerce (Hobbs Act conspiracy) in violation of 18 U.S.C. § 1951 ; and using, carrying, or brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(l)(A), covering the use of a gun during the Dues robbery.

The indictment referenced two distinct theories of liability for the § 924(c) charge: a direct theory of liability and a vicarious Pinkerton theory. Under the Pinkerton doctrine, defendants are vicariously "liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy." United States v. Hare , 820 F.3d 93, 105 (4th Cir. 2016). The government's direct theory of liability was that Gillespie personally carried a gun during the Hobbs Act robbery of Theodore Dues (a crime of violence). In contrast, the government's Pinkerton theory was that rather than personally carrying a gun, Gillespie was vicariously liable for the act of a co-conspirator because at least one of the other robbers carried a gun during the robbery. While the Pinkerton theory relied on the existence of a conspiracy, the conspiracy functioned only as a means of holding Gillespie liable for his co-conspirator's use of a gun, not as a stand-alone predicate offense.

After a two-week trial, the jury was presented with instructions tracking the government's twin theories of § 924(c) liability. The instructions therefore specified that the "first basis" for liability was "the underlying charges of robbery affecting interstate commerce." JA 271. When considering this first basis, the jury was instructed to acquit on this theory of § 924(c) liability if the government failed to prove "beyond a reasonable doubt that the defendant under consideration attempted, committed or aided and abetted a robbery affecting interstate commerce." JA 271. The jury rejected this first theory of § 924(c) liability, probably because the testimony of Gillespie's co-conspirators was split on whether he was personally carrying a firearm during the robbery.

The "second basis" for § 924(c) liability relied on Pinkerton and the "underlying charge of conspiracy to commit robberies contained in Count One." JA 272. The jury instructions proceeded to explain Pinkerton liability: "the illegal actions of [a conspirator] may be attributed to other individuals who are then members of the conspiracy," if committed "during the existence or life of a conspiracy" and "in order to further or somehow advance the goals or objectives of the conspiracy." JA 272. Moreover, to find Gillespie liable for a § 924(c) violation under Pinkerton , the jury was also required to find beyond a reasonable doubt that (1) a member of the conspiracy; (2) carried a firearm during the Hobbs Act robbery of Theodore Dues; (3) during and in furtherance of the conspiracy; and (4) while Gillespie was a member of the conspiracy. In contrast with the first theory, the jury accepted this Pinkerton theory of § 924(c) liability.

C.

After Gillespie's trial, he moved for acquittal on the § 924(c) conviction arguing that the district court improperly instructed that Hobbs Act conspiracy qualified as a crime of violence.^* The district court acknowledged that the jury was incorrectly instructed that Hobbs Act conspiracy qualified as a crime of violence. But the court determined that Gillespie could not establish plain error because he had not suffered prejudice from the improper instruction. Rather than being convicted based on an improper Hobbs Act conspiracy predicate, the 27-question special verdict form demonstrated that Gillespie's § 924(c) conviction rested "explicitly on the Pinkerton theory." JA 397. And Pinkerton vicarious liability for the acts of a co-conspirator remains a valid basis for conviction, provided that the co-conspirator commits a crime of violence while carrying a gun.

At Gillespie's sentencing hearing, the district court adopted the Presentence Report, which established an Offense Level of 32, a Criminal History Category of I, and a Guidelines range of 121-151 months. Gillespie sought a downward variance and argued he was receiving an unfairly longer sentence compared to his co-conspirators because he had opted to exercise his right to trial, rather than pleading guilty and cooperating with the government. The district court rejected this argument and explained that Gillespie was not similarly situated to his co-conspirators because their more lenient sentences were driven by their acceptance of responsibility under Guidelines § 3E1.1 and government motions for substantial assistance under Guidelines § 5K1.1.

The district court acknowledged that the Guidelines were merely advisory and explained why the § 3553(a) factors supported the chosen sentence. In particular, the court focused on the serious nature of the offenses and emphasized that "[t]he violence used in these robberies was extensive and very serious," and that based solely on "greed," the conspirators "restrained and assaulted victims in their residences." Supp. JA 39–40. The court therefore imposed a bottom-of-the-Guidelines-range sentence of 121 months, which, combined with the § 924(c) mandatory minimum stacking provisions (resulting in an additional 60 months for carrying a gun and an additional 84 months for brandishing a gun) led to a total sentence of 265 months. Gillespie's co-defendant Jamaa Johnson received a 235-month sentence. Government cooperators Brandon Davis, Keith Glenn, and Robert Barcliff received 70-, 110-, and 192-month sentences respectively.

II.

Gillespie's primary contention on appeal is that his § 924(c) conviction for carrying a firearm during the robbery of Theodore Dues should be reversed because the district court...