United States v. Walker

89 F.4th 173

UNITED STATES of America, Appellee, v. Shaun WALKER, Defendant, Appellant.

No. 22-1929

United States Court of Appeals, First Circuit

December 19, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]

Sarah Varney, with whom Darren Griffis and Murphy & Rudolf, LLP were on brief, for appellant.

Alexia R. De Vincentis, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Gelpí, Montecalvo, and Rikelman, Circuit Judges.

RIKELMAN, Circuit Judge.

Shaun Walker appeals his thirty-six-month sentence for participating in a thwarted Hobbs Act conspiracy to rob a home business. Walker raises four procedural objections to his sentence, including the application of economic-loss and dangerous-weapon enhancements, and the denial of incomplete-conspiracy and mitigating-role reductions. Although the district court's ultimate sentence was one month below the low-end of the sentencing range recommended under the United States Sentencing Guidelines, Walker asks us to review the calculation of the range itself.

After careful consideration, we find no reversible error in the district court's treatment of the economic-loss and dangerous-weapon enhancements or the incomplete-conspiracy reduction. But because the sentencing court did not compare Walker's culpability to that of his co-defendants under the factors applicable to the mitigating-role reduction, we cannot confirm whether it erred in denying that reduction. Accordingly, we vacate and remand for resentencing on Walker's eligibility for a mitigating-role reduction.

I. BACKGROUND

A. Relevant Facts¹

On March 18, 2019, Junior Melendez was organizing a robbery of a home in Rockland, Massachusetts, out of which Joseph Wilson ran a business selling glass marijuana-smoking paraphernalia. Melendez was planning the break-in with Grace Katana, who had scouted the target location, Keith Johnson, who would lead the break-in, and a fourth person, who would aid Johnson inside the home. On March 19, Melendez told Johnson that Shaun Walker would enter the home with Johnson as a substitute for the original person in that role. Johnson objected at first, preferring someone physically larger, before relenting to Walker's participation, telling Melendez, "I'm going in first, it doesn't even matter."

With the four participants set, the plan was put into motion. On March 21, Katana suggested to Melendez that the robbery could go forward that Sunday. Two days later, on Saturday, March 23, Melendez called Johnson and confirmed they would proceed "tomorrow." On Sunday, March 24, Melendez informed Johnson they would commit the robbery "tonight around 2 or 3 in the morning," and Johnson said he would be ready.

Around 1:42 a.m. on Monday, March 25, Katana told Melendez he was ready to proceed "whenever the guys were ready," and agreed to meet Melendez near Hamilton Street in Worcester, Massachusetts. But Melendez changed his mind twenty minutes later, calling Katana at 2:04 a.m. to delay the break-in until "tomorrow," saying the middle of the night was "not really the best time to do it" and agreeing to meet Katana that night instead.

Apparently unknown to the conspirators, state and federal law enforcement had been intercepting Melendez's phone calls and text messages pursuant to a wiretap since March 14, 2019. Aware of Melendez and Katana's middle-of-the-night plan, police watched from a distance in the early hours of March 25 as Melendez arrived to meet Katana in Worcester. At approximately 3:15 a.m., after Melendez had left the area, police observed three men loading a wheeled dolly into the back of a Honda CR-V registered to Katana's sister.²

Before the four men left for Rockland later on Monday, March 25, Johnson called Melendez to ask, "you got the thing, or I bringing mine?" Melendez responded that "he might not, he probably not even be there," apparently referring to Wilson, but instructed Johnson to "bring [his] just in case," repeating, "just bring one, bring one." The men were discussing whether Johnson should carry a firearm, and, following Melendez's instructions, Johnson brought a .380 caliber pistol to Rockland. Law enforcement agents were listening to that call and intercepted a separate call the following month in which Melendez told a third party that Walker was angry that nobody told him Johnson was instructed to bring a gun into the home.

The men traveled more than 60 miles from Worcester to Rockland on Monday afternoon. Upon arriving in Rockland around 2:48 p.m., Melendez and Katana scoped out the Wilson property, whereas Walker and Johnson waited in a Home Depot parking lot less than a mile away. At 2:51 p.m., location information from Melendez's phone indicated he was close to the target home. At 2:53 p.m., a doorbell camera recorded Katana carrying away two packages that had been delivered to the doorstep of the property earlier that day.

By 3:02 p.m., Melendez and Katana had arrived at the Home Depot. Although Melendez previously had instructed Walker to purchase from Home Depot "whatever we need" while Melendez and Katana went to the house, Walker asked Melendez to buy the supplies instead, saying "we can't be going in and showin' our face," and suggesting Melendez "grab a crowbar," before adding "what you think? Whatever, whatever you think's going to work." Home Depot security footage and a purchase receipt show that at 3:07 p.m., Melendez and Katana bought a two-foot iron crowbar, an eight-inch screwdriver, and razor blades, which they loaded into the Honda occupied by Walker and Johnson.

Melendez also told Walker "[t]here's one whip [car]" in the driveway of Wilson's house and that Katana did not "think anybody [was] there" but that they were "not sure." Apparently, Katana was trying to gather more information from an unspecified fifth person. Melendez's last statement to Walker was that "we[']re gonna look . . . and make the decision after that."

Convinced an armed robbery was imminent, Massachusetts State Police stopped both vehicles in the Home Depot parking lot. Walker was driving the Honda with Johnson in the front passenger seat. From that vehicle, officers seized a loaded .380 caliber pistol from the glove compartment; the crowbar Melendez and Katana had purchased; and the wheeled dolly loaded the night before. In Melendez's vehicle, officers found a ski mask and the two boxes Katana had taken from the front steps of the home, which contained $2,500 worth of glass smoking pipes. Wilson later told law enforcement that the glassware in his home on the day of the intended robbery was worth approximately $40,000.

B. Legal Proceedings

On May 18, 2022, Walker pleaded guilty to violating the Hobbs Act, 18 U.S.C. § 1951(a). The presentence investigation report (PSR) recommended a sentencing range of thirty-seven to forty-six months based on a total offense level of 21, which was derived from the following calculation. The Guideline applicable to Hobbs Act conspiracies is that for "Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)." U.S. Sent'g Guidelines Manual ("U.S.S.G.") § 2X1.1; see id. § 1B1.2 ("If the offense involved a conspiracy . . . refer to § 2X1.1 . . . ."). Section 2X1.1 borrows the base offense level for the substantive offense -- here, the robbery Guideline, id. § 2B3.1 -- "plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty," id. § 2X1.1(a). The robbery Guideline provides a base offense level of 20. Id. § 2B3.1(a).

The PSR also recommended two enhancements and two reductions. It initially recommended a five-level increase for possession of a firearm, but both Walker and the government objected because the government was unable to prove Walker could have reasonably foreseen that Johnson would carry the gun. In response, the probation officer recommended instead a three-level enhancement based on possession of "dangerous weapon[s]": the crowbar, screwdriver, and razor blades. Id. § 2B3.1(b)(2)(E). The PSR also recommended a one-level economic-loss increase because the intended loss was more than $20,000 but did not exceed $95,000. See id. § 2B3.1(b)(7)(B). Finally, the PSR recommended a two-level decrease for acceptance of responsibility and a further one-level decrease for Walker's timely notice of his intent to plead guilty, reaching a total offense level of 21. Because Walker had a criminal history score of zero, he qualified for criminal history category I.

Walker asserted four objections to the PSR's guideline calculation in his sentencing memorandum. First, he requested a four-point reduction for his role as a minimal participant in the conspiracy. See id. § 3B1.2(a). Walker argued that he was "substantially less culpable than the average participant" in the conspiracy, id. § 3B1.2 cmt. n.3(A), and "plainly among the least culpable" in the offense under the factors laid out in the Guideline commentary, id. § 3B1.2 cmt. n.4; see also id. § 3B1.2 cmt. n.3(C) (listing factors "the court should consider" when determining whether defendant is eligible for a reduction). He explained that he did not fully understand the scope or structure of the activity, nor did he participate in its planning; he intended to perform only a small role in the break-in itself; he lacked decision-making authority and expressed reticence about certain steps; and the record did not show that he stood to benefit from his participation. At the sentencing hearing,³ the government responded that Walker could not be a minimal participant, arguing that it was "hard to imagine that an individual who ultimately agreed . . . to go into the house to actually commit the robbery [would] be a minimal participant in that conspiracy." The government also argued that Walker hesitated to enter the Home Depot because he feared a witness...