USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 1 of 18
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4146
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRELL E. GILLESPIE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Frank W. Volk, District Judge. (2:13-cr-00091-4)
Argued: January 25, 2022 Decided: March 8, 2022
Before WILKINSON, NIEMEYER, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Heytens joined.
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. USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 2 of 18
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,
2 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 3 of 18
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
3 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 4 of 18
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
4 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 5 of 18
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
5 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 6 of 18
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.
* Before the district court, Gillespie also moved for acquittal on a second § 924(c) conviction based on his brandishing of a firearm during a second robbery. The district court rejected his argument because the jury found him guilty both on the Pinkerton theory and on the theory that he personally brandished a firearm—and both theories remain valid. Gillespie does not challenge this second § 924(c) conviction on appeal.
6 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 7 of 18
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
incorrectly instructed the jury that Hobbs Act conspiracy constituted a crime of violence.
We review for plain error because Gillespie did not object to the instruction before the
district court. United States v. Ramirez-Castillo, 748 F.3d 205, 211 (4th Cir. 2014).
Establishing plain error requires a defendant to demonstrate “(1) an error was made; (2)
the error is plain; (3) the error affects substantial rights; and (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. at 212.
Under the second factor, an error is plain if, “at the time of appellate consideration,
the settled law of the Supreme Court or this circuit establishes that an error has occurred.”
7 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 8 of 18
United States v. Walker, 934 F.3d 375, 378 (4th Cir. 2019) (quotation marks omitted). And
because we held in United States v. Simms, 914 F.3d 229, 233–34 (4th Cir. 2019) (en banc),
that Hobbs Act conspiracy does not constitute a crime of violence, the district court’s
contrary instruction was therefore plainly erroneous.
But for an error to prejudice a defendant sufficiently to “affect substantial rights,”
“[i]t must have affected the outcome of the district court proceedings.” Ramirez-Castillo,
748 F.3d at 215 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). In the context
of a § 924(c) conviction, the verdict stands even if the jury was instructed on an invalid
predicate, so long as the jury relied on a valid basis for conviction. See Hare, 820 F.3d at
105–06; United States v. Crawley, 2 F.4th 257, 263 (4th Cir. 2021) (“We reaffirm our
holding in Hare that a § 924(c) conviction based on one valid and one invalid predicate
offense remains sound.”).
Under plain error review, Gillespie’s claim fails because he cannot “demonstrate
that the erroneous instruction given resulted in his conviction,” and therefore cannot
establish prejudice. Hare, 820 F.3d at 105. He correctly observes that a conviction for
personally carrying a firearm during a Hobbs Act conspiracy is no longer valid. But this is
of no moment for Gillespie because the special verdict form affirmatively demonstrates his
conviction was based on a valid Pinkerton theory under which he is liable for his co-
conspirator’s use of a firearm during the Dues robbery, not a direct Hobbs Act conspiracy
predicate.
8 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 9 of 18
The text of § 924(c) contains two definitions of a crime of violence: the force (or
elements) clause and the residual clause. The force clause looks to whether a crime “has as
an element the use, attempted use, or threatened use of physical force,” 18 U.S.C.
§ 924(c)(3)(A), whereas the residual clause sought to determine whether the crime
involved a “substantial risk” that physical force would be used, 18 U.S.C. § 924(c)(3)(B).
In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme Court found the residual
clause definition unconstitutionally vague, leaving only the force clause. And in United
States v. Simms, 914 F.3d at 233–34 (en banc), we concluded that Hobbs Act conspiracy
does not constitute a crime of violence under the force clause, and therefore may not serve
as a direct § 924(c) predicate. By contrast, Hobbs Act robbery constitutes a prototypical
crime of violence under the force clause and thus continues to serve as a valid § 924(c)
predicate. United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019).
Gillespie argues that because the application of Pinkerton relies on the existence of
a conspiracy (in his case, a Hobbs Act conspiracy) and because Hobbs Act conspiracy is
not a crime of violence, he was therefore convicted based on an improper § 924(c) predicate
offense. But Gillespie’s argument confuses Hobbs Act conspiracy as a standalone § 924(c)
predicate—which was prohibited by Davis and Simms—and vicarious liability for a co-
conspirator’s act of carrying a gun during a crime of violence under Pinkerton—which
remains a valid theory of § 924(c) liability.
It is well-established that defendants may be held liable for the substantive offenses
of their co-conspirators. Pinkerton v. United States, 328 U.S. 640 (1946). Simms and Davis
9 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 10 of 18
did nothing to upset this theory of liability in the § 924(c) context. In Pinkerton, the Court
reiterated the principle that “so long as the partnership in crime continues, the partners act
for each other in carrying it forward,” meaning that “an overt act of one partner may be the
act of all.” Id. at 646–47 (citing United States v. Kissel, 218 U.S. 601, 608 (1910)). 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.” Hare, 820 F.3d at 105. “The principle underlying the
Pinkerton doctrine is that ‘conspirators are each other’s agents; and a principal is bound by
the acts of his agents within the scope of the agency.’” United States v. Dinkins, 691 F.3d
358, 384 (4th Cir. 2012) (quoting United States v. Aramony, 88 F.3d 1369, 1379 (4th Cir.
1996)). Pinkerton is merely another form of vicarious liability, akin to aiding and abetting,
that apportions “criminal responsibility for the commission of substantive offenses” based
on principles of “agency and causation.” United States v. Ashley, 606 F.3d 135, 143 (2010).
Pinkerton’s viability as a vicarious theory of § 924(c) liability has never depended
on the categorization of Hobbs Act conspiracy as a crime of violence, and Gillespie’s
argument otherwise is a red herring. After Davis and Simms, it is true, a defendant cannot
be convicted under § 924(c) for personally carrying a gun during a Hobbs Act conspiracy.
But if a conspirator commits a Hobbs Act robbery while carrying a gun, the conspirator
has violated § 924(c). And under Pinkerton, their co-conspirators can be held vicariously
liable for the § 924(c) violation so long as the robbery and use of the firearm were
reasonably foreseeable to the defendant and in furtherance of a conspiracy. The defendant
would still be liable even if, unlike Gillespie, the defendant was not present at the robbery
10 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 11 of 18
and never touched a gun. This remains the case after Davis and Simms because Pinkerton’s
applicability never turned on whether the underlying conspiracy constituted a crime of
violence. Pinkerton liability arises in a number of contexts, many of them wholly non-
violent: Pinkerton itself involved a bootlegging conspiracy and imposed vicarious liability
for “violations of the Internal Revenue Code.” 328 U.S. at 641.
This court previously addressed the issue of Pinkerton’s continued applicability to
§ 924(c) charges in United States v. Johnson, 827 F. App’x 283 (4th Cir. 2020). Like
Gillespie, the defendant in Johnson was convicted of Hobbs Act conspiracy, Hobbs Act
robbery, and violating § 924(c) under an improper instruction that the conspiracy charge
constituted a crime of violence. Id. at 284–85. The prosecution advanced several theories
of liability, including Pinkerton, and the jury returned a general verdict of guilty. Id. at 285.
The court explained that Johnson’s argument “confuses the offense of Hobbs Act
conspiracy” as a predicate offense—which Simms foreclosed—and vicarious liability for
reasonably foreseeable crimes committed in furtherance of a conspiracy under Pinkerton—
which remains valid. Id. at 286. Johnson therefore could not demonstrate prejudice because
“the jury could have based the firearms convictions” on the still-valid Pinkerton theory.
Id.; see Hare, 820 F.3d at 105 (requiring the defendant demonstrate “the erroneous
instruction given resulted in his conviction”).
In United States v. Woods, the Sixth Circuit addressed the same confusion between
Pinkerton as a theory of vicarious liability and conspiracy as a predicate crime of violence
and came to the same conclusion: “a theory of Pinkerton liability is still permissible as long
as the underlying predicate offenses qualify as crimes of violence under the § 924(c)
11 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 12 of 18
elements clause.” 14 F.4th 544, 552 (6th Cir. 2021). And each circuit to address the issue
agrees. See United States v. Hernandez-Roman, 981 F.3d 138, 145 (1st Cir. 2020); United
States v. Howell, No. 18-3216, 2021 WL 3163879, at *4 (3d Cir. July 27, 2021); United
States v. Henry, 984 F.3d 1343, 1356–57 (9th Cir. 2021); see also Reyes v. United States,
998 F.3d 753, 758–59 (7th Cir. 2021) (upholding § 924(c) conviction under Pinkerton after
Davis). There is thus no doubt that Pinkerton remains a valid theory of § 924(c) liability.
It was precisely this still-valid theory of Pinkerton liability that the jury embraced
when finding Gillespie guilty of the challenged § 924(c) conviction. Throughout the trial,
the government alleged that Gillespie violated § 924(c) on two theories—first, that he had
personally used a firearm during a Hobbs Act robbery; and second, that he was liable for
his co-conspirator’s use of a firearm during a Hobbs Act robbery under Pinkerton. The jury
instructions and special verdict questions likewise distinguished between these twin
theories of liability. The special verdict form demonstrates that the jury selected the
Pinkerton theory, foreclosing a finding of prejudice.
The jury instructions differentiated between the “first basis” for the § 924(c) charges
predicated on “the underlying charges of robbery affecting interstate commerce,” JA 271,
and the “second basis” for the § 924(c) charges based on Pinkerton liability:
Under this second basis, a member of a conspiracy who commits another crime during the existence or life of a conspiracy and commits this other crime in order to further or somehow advance the goals or objectives of the conspiracy, may be found by you to be acting as the agent of the other members of the conspiracy. The illegal actions of this person in committing this other crime may be attributed to other individuals who are then members of the conspiracy.
12 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 13 of 18
JA 272. Nowhere did the jury instructions explaining the Pinkerton theory require that the
jurors find Hobbs Act conspiracy to be a crime of violence. Nor did the instructions suggest
that Hobbs Act conspiracy was being treated itself as a predicate offense rather than a
means for imposing vicarious liability through Pinkerton. And the indictment identified
only Hobbs Act robbery as the underlying crime of violence.
Likewise, the special verdict form made clear that the conviction was based on
Pinkerton liability, not Hobbs Act conspiracy as a stand-alone predicate offense. The
verdict form demonstrates that the jury carefully distinguished between the two theories.
In Question 10, the jury rejected the theory that Gillespie personally carried a firearm
during the Hobbs Act robbery of Theodore Dues. But in Question 11, the jury found
Gillespie guilty of the § 924(c) charge based on vicarious Pinkerton liability “arising out
of the acts of a co-conspirator.” JA 294.
The theory foreclosed by Simms is one in which a defendant personally carries a
firearm during a Hobbs Act conspiracy as the predicate offense. See Howell, 2021 WL
3163879, at *4 (“The invalid theory . . . is that he committed the § 924(c) offenses by using
a gun during conspiracies to commit Hobbs Act robberies, while the valid theory [is guilt]
by virtue of his association with those who used a gun during completed Hobbs Act
robberies.”). Question 11, which clearly referenced a Pinkerton theory, cannot be
interpreted to reference this impermissible theory of liability because it based liability not
on Gillespie’s personal use of a firearm, but on the “acts of a co-conspirator.” JA 294.
The evidence at trial overwhelmingly supported this Pinkerton theory and
demonstrated that Gillespie repeatedly participated in violent armed robberies of drug
13 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 14 of 18
dealers as part of an extensive conspiracy. This evidence primarily consisted of (1) the
testimony of three of the conspirators who opted to cooperate with the government, (2) the
testimony of the gang’s victims, (3) the discovery of stolen goods (including an AK-47
replica and a victim’s wallet) and criminal paraphernalia (such as a mask and pepper spray)
in the group’s possession, and (4) cell phone records corroborating the conspirators’
presence at the robberies. In some instances, Gillespie initiated the robberies and in others
he personally carried a firearm. The testimony of cooperators Barcliff, Glenn, and Davis—
the other three robbers present that night—and the victim Theodore Dues, established that
Gillespie entered Dues’ apartment and helped to violently subdue him. And while
testimony varied on whether Gillespie personally carried a gun that night, every witness
agreed that at the very least, other members of the gang were armed.
It is also perfectly clear that Gillespie knew his co-conspirators would be engaged
in a violent robbery while armed with firearms. Any failure to instruct that firearm use
must be reasonably foreseeable for Pinkerton liability to attach therefore cannot justify
reversal. After all, “[i]t is the rare case in which an improper instruction will justify reversal
of a criminal conviction when no objection has been made in the trial court.” Henderson v.
Kibbe, 431 U.S. 145, 154 (1977). First, trial testimony established it was understood by the
gang that guns would be needed to successfully rob drug dealers. Second, Gillespie had
personally carried a gun and witnessed gun use by his compatriots during previous
robberies. And finally, all witnesses agreed that at least some members of the conspiracy
were visibly carrying guns during the Dues robbery. Any instructional error on
foreseeability was therefore harmless. See United States v. Blackman, 746 F.3d 137, 141–
14 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 15 of 18
42 (4th Cir. 2014) (finding foreseeability based on “pre-robbery discussions” of firearm
use); Hare, 820 F.3d at 105.
Congress enacted § 924(c) based on its determination that the addition of a gun to
an already violent crime “increases the likelihood of harm to innocent individuals and law
enforcement agents.” See United States v. Grinnell, 915 F.2d 667, 669 (11th Cir. 1990).
And Gillespie’s participation in the Dues robbery involved precisely the combination of
violent crime and firearms that Congress sought to criminalize in § 924(c). Because the
Pinkerton theory remains valid after Simms and Davis, and the evidence of his guilt under
this theory is unassailable, Gillespie cannot establish an error affecting his substantial
rights, and therefore cannot demonstrate reversible error.
III.
Gillespie next argues that his bottom-of-the-Guidelines-range sentence was
substantively unreasonable because it resulted in a longer sentence than that received by
his co-conspirators who opted to plead guilty and cooperate with the government. We
review sentences in two steps. First, we determine whether the district court has committed
significant procedural error. United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020)
(citing Gall v. United States, 552 U.S. 38, 51 (2007). Second, we consider whether the
sentence imposed was substantively reasonable. Id.
A sentence is procedurally unreasonable if the district court committed a serious
procedural error, such as improperly calculating the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Id.
15 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 16 of 18
Gillespie does not claim that his sentence was procedurally unreasonable. A wise
concession, as the district court properly calculated the Guidelines range of 121-151
months, did not treat the range as mandatory, considered the § 3553(a) factors, and
explained the decision to sentence Gillespie at the bottom of the Guidelines range, rather
than grant a downward variance.
Gillespie instead argues that he has been subject to an improper “trial penalty” and
that his bottom-of-the-Guidelines sentence is therefore substantively unreasonable because
it creates an “unwarranted sentence disparit[y]” with his co-conspirators under 18 U.S.C.
§ 3553(a)(6). A sentence is substantively unreasonable only where under the totality of the
circumstances, the “sentencing court abused its discretion in concluding that the sentence
it chose satisfied the standards set forth in § 3553(a).” United States v. Mendoza-Mendoza,
597 F.3d 212, 216 (4th Cir. 2010). And “any sentence that is within or below a properly
calculated Guidelines range is presumptively reasonable.” United States v. Louthian, 756
F.3d 295, 306 (4th Cir. 2014).
Gillespie’s argument fails for two reasons. First, a sentence is not “unreasonable
under § 3553(a)(6) merely because it creates a disparity with a co-defendant’s sentence.”
See United States v. Pyles, 482 F.3d 282, 290 (4th Cir. 2007), vacated on other grounds,
552 U.S. 1089 (2008); United States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996).
Second, individuals who opt to go to trial are not similarly situated to those who plead
guilty and cooperate with the government for purposes of § 3553(a)(6). United States v.
Susi, 674 F.3d 278, 288 (4th Cir. 2012).
16 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 17 of 18
The lower sentences of some of Gillespie’s co-conspirators were driven by the
Sentencing Guidelines which provide offense level reductions for defendants who accept
responsibility for their offenses, U.S.S.G. § 3E1.1, and downward departures for those who
provide substantial assistance to the government, U.S.S.G. § 5K1.1. “[D]efendants who
exercise their right to a trial have no entitlement to the same benefit.” Susi, 674 F.3d at
287–88. We can therefore discern no abuse of discretion in the district court’s conclusion
that the “greed” and “extensive” violence characterizing Gillespie’s offenses did not
warrant a lesser sentence. Supp. JA 40.
Unlike some of his co-conspirators, Gillespie deliberately chose not to cooperate
with the government or to accept responsibility for his crimes. After spurning this
opportunity, Gillespie cannot now claim a benefit he deliberately rejected.
IV.
Gillespie and his co-conspirators cynically targeted drug dealers under the belief
they would be less likely to reveal the gang’s predations to law enforcement. Even if by
their illegal conduct the dealers placed themselves in opposition to the law, the law does
not deny them all protection. It is of course the function of the law to punish such dealers
for their misdeeds, but it is not the prerogative of Gillespie and his co-conspirators. The
evidence at trial was overwhelming that Gillespie repeatedly violated the victims’ homes
through a string of violent armed robberies. Sometimes he personally carried a gun and at
other times his co-conspirators did so. The Supreme Court long ago affirmed the
commonsense principle that those who enter criminal conspiracies bear responsibility for
17 USCA4 Appeal: 21-4146 Doc: 29 Filed: 03/08/2022 Pg: 18 of 18
the reasonably foreseeable actions taken by co-conspirators to advance the group’s criminal
aims. It was that principle that drove this case, and the judgment is in all respects
AFFIRMED.