UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-4122
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY WARREN HANCOCK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. George Jarrod Hazel, District Judge. (8:13-cr-00274-GJH-1)
Submitted: September 19, 2019 Decided: September 27, 2019
Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marc Gregory Hall, LAW OFFICES OF MARC G. HALL, P.C., Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Thomas M. Sullivan, Assistant United States Attorney, Michael T. Packard, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
A jury convicted Gary Warren Hancock, Jr., of Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a) (2012); using, carrying, and brandishing a firearm during and in
relation to a crime of violence (Hobbs Act robbery), in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (2012); and possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The district court sentenced Hancock
to 300 months’ imprisonment. On appeal, Hancock raises a variety of challenges to his
convictions and sentence. Finding no error, we affirm.
I.
Hancock argues that the district court erred in denying his motion to suppress a
show-up identification, contending that the procedure the officers used was unduly
suggestive. We review the court’s factual findings related to an out-of-court identification
for clear error and “review de novo the court’s legal conclusion as to whether the
identification violated the Due Process Clause.” United States v. Saunders, 501 F.3d 384,
389 (4th Cir. 2007). To demonstrate that identification testimony is inadmissible, the
defendant must first “show that the . . . identification procedure was impermissibly
suggestive.” Id. “[I]f the defendant meets this burden, a court considers whether the
identification was nevertheless reliable in the context of all of the circumstances.” Id. at
389-90. We may, however, uphold a district court’s denial of a motion to suppress an out-
of-court identification without determining whether the identification procedure was
unduly suggestive if we find the identification reliable under the totality of the
2 circumstances. See United States v. Greene, 704 F.3d 298, 308 (4th Cir. 2013); Holdren
v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994). When assessing reliability, we examine:
(1) the witness’ opportunity to view the perpetrator at the time of the crime; (2) the witness’ degree of attention at the time of the offense; (3) the accuracy of the witness’ prior description of the perpetrator; (4) the witness’ level of certainty when identifying the defendant as the perpetrator at the time of the confrontation; and (5) the length of time between the crime and the confrontation.
Greene, 704 F.3d at 308 (internal quotation marks omitted).
The witness here had ample opportunity to view Hancock, and he was attentive to
details at the time of the offense. The witness provided a specific description of the robber
prior to the show-up and did not hesitate to identify Hancock as the robber. Finally, the
witness’ memory was fresh because the identification occurred promptly after the robbery.
Accordingly, we conclude that the court correctly denied Hancock’s motion to suppress.
II.
Hancock contends that the district court erred in permitting him to proceed pro se at
trial, specifically asserting that the court conflated competence to stand trial with
competence to try a case. “The Sixth Amendment guarantees to a criminal defendant the
right to the assistance of counsel before he can be convicted and punished by a term of
imprisonment.” United States v. Ductan, 800 F.3d 642, 648 (4th Cir. 2015). But “it is
equally clear that the Sixth Amendment also protects a defendant’s affirmative right to self-
representation.” Id. A defendant “may waive the right to counsel and proceed at trial pro
se only if the waiver is (1) clear and unequivocal, (2) knowing, intelligent, and voluntary,
and (3) timely.” United States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013). Ultimately,
3 “the defendant should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows what he is doing and his
choice is made with eyes open.” United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005)
(alteration and internal quotation marks omitted). *
Initially, we conclude that, contrary to Hancock’s assertion, the court expressly
recognized the difference between competence to stand trial and competence to represent
oneself at trial. We further conclude that the court was exceptionally thorough in
examining whether Hancock was competent to represent himself at trial and whether his
decision to do so was clear, unequivocal, knowing, and voluntary. Despite understanding
the harsh penalties that would result from a guilty verdict and despite the court’s warnings
about the disadvantages of proceeding without an attorney familiar with the federal rules,
Hancock chose to represent himself. Accordingly, we find no error in the court’s decision
to allow Hancock to waive his right to counsel and proceed pro se at trial.
III.
Hancock avers that the district court’s rulings at trial had a “chilling effect” on him
such that they influenced his decision not to testify on his own behalf. He explains that,
by inhibiting his attempts to prove through witness testimony that a dashboard camera
(“dash cam”) video had been fabricated, the court intimidated him into not testifying.
* The parties disagree about the applicable standard of review. Because Hancock’s argument fails under any standard, we decline to resolve the dispute.
4 We conclude that this argument is without merit. While the court sustained several
of the Government’s objections, it also overruled several of them throughout the course of
the multi-day trial. Moreover, Hancock ably questioned several witnesses in his mission
to prove that the dash cam video had been altered. Thus, Hancock’s assertion that the
court’s rulings unduly influenced his decision not to testify is unfounded.
IV.
Hancock argues that the court erred in denying his motion to dismiss his § 924(c)
conviction. He asserts that the residual clause of § 924(c) is unconstitutionally vague and
that Hobbs Act robbery does not qualify as a crime of violence under the force clause.
Free access — add to your briefcase to read the full text and ask questions with AI
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 16-4122
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY WARREN HANCOCK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. George Jarrod Hazel, District Judge. (8:13-cr-00274-GJH-1)
Submitted: September 19, 2019 Decided: September 27, 2019
Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marc Gregory Hall, LAW OFFICES OF MARC G. HALL, P.C., Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Thomas M. Sullivan, Assistant United States Attorney, Michael T. Packard, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
A jury convicted Gary Warren Hancock, Jr., of Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a) (2012); using, carrying, and brandishing a firearm during and in
relation to a crime of violence (Hobbs Act robbery), in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (2012); and possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The district court sentenced Hancock
to 300 months’ imprisonment. On appeal, Hancock raises a variety of challenges to his
convictions and sentence. Finding no error, we affirm.
I.
Hancock argues that the district court erred in denying his motion to suppress a
show-up identification, contending that the procedure the officers used was unduly
suggestive. We review the court’s factual findings related to an out-of-court identification
for clear error and “review de novo the court’s legal conclusion as to whether the
identification violated the Due Process Clause.” United States v. Saunders, 501 F.3d 384,
389 (4th Cir. 2007). To demonstrate that identification testimony is inadmissible, the
defendant must first “show that the . . . identification procedure was impermissibly
suggestive.” Id. “[I]f the defendant meets this burden, a court considers whether the
identification was nevertheless reliable in the context of all of the circumstances.” Id. at
389-90. We may, however, uphold a district court’s denial of a motion to suppress an out-
of-court identification without determining whether the identification procedure was
unduly suggestive if we find the identification reliable under the totality of the
2 circumstances. See United States v. Greene, 704 F.3d 298, 308 (4th Cir. 2013); Holdren
v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994). When assessing reliability, we examine:
(1) the witness’ opportunity to view the perpetrator at the time of the crime; (2) the witness’ degree of attention at the time of the offense; (3) the accuracy of the witness’ prior description of the perpetrator; (4) the witness’ level of certainty when identifying the defendant as the perpetrator at the time of the confrontation; and (5) the length of time between the crime and the confrontation.
Greene, 704 F.3d at 308 (internal quotation marks omitted).
The witness here had ample opportunity to view Hancock, and he was attentive to
details at the time of the offense. The witness provided a specific description of the robber
prior to the show-up and did not hesitate to identify Hancock as the robber. Finally, the
witness’ memory was fresh because the identification occurred promptly after the robbery.
Accordingly, we conclude that the court correctly denied Hancock’s motion to suppress.
II.
Hancock contends that the district court erred in permitting him to proceed pro se at
trial, specifically asserting that the court conflated competence to stand trial with
competence to try a case. “The Sixth Amendment guarantees to a criminal defendant the
right to the assistance of counsel before he can be convicted and punished by a term of
imprisonment.” United States v. Ductan, 800 F.3d 642, 648 (4th Cir. 2015). But “it is
equally clear that the Sixth Amendment also protects a defendant’s affirmative right to self-
representation.” Id. A defendant “may waive the right to counsel and proceed at trial pro
se only if the waiver is (1) clear and unequivocal, (2) knowing, intelligent, and voluntary,
and (3) timely.” United States v. Bernard, 708 F.3d 583, 588 (4th Cir. 2013). Ultimately,
3 “the defendant should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows what he is doing and his
choice is made with eyes open.” United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005)
(alteration and internal quotation marks omitted). *
Initially, we conclude that, contrary to Hancock’s assertion, the court expressly
recognized the difference between competence to stand trial and competence to represent
oneself at trial. We further conclude that the court was exceptionally thorough in
examining whether Hancock was competent to represent himself at trial and whether his
decision to do so was clear, unequivocal, knowing, and voluntary. Despite understanding
the harsh penalties that would result from a guilty verdict and despite the court’s warnings
about the disadvantages of proceeding without an attorney familiar with the federal rules,
Hancock chose to represent himself. Accordingly, we find no error in the court’s decision
to allow Hancock to waive his right to counsel and proceed pro se at trial.
III.
Hancock avers that the district court’s rulings at trial had a “chilling effect” on him
such that they influenced his decision not to testify on his own behalf. He explains that,
by inhibiting his attempts to prove through witness testimony that a dashboard camera
(“dash cam”) video had been fabricated, the court intimidated him into not testifying.
* The parties disagree about the applicable standard of review. Because Hancock’s argument fails under any standard, we decline to resolve the dispute.
4 We conclude that this argument is without merit. While the court sustained several
of the Government’s objections, it also overruled several of them throughout the course of
the multi-day trial. Moreover, Hancock ably questioned several witnesses in his mission
to prove that the dash cam video had been altered. Thus, Hancock’s assertion that the
court’s rulings unduly influenced his decision not to testify is unfounded.
IV.
Hancock argues that the court erred in denying his motion to dismiss his § 924(c)
conviction. He asserts that the residual clause of § 924(c) is unconstitutionally vague and
that Hobbs Act robbery does not qualify as a crime of violence under the force clause.
After Hancock filed his briefs, the Supreme Court held that the residual clause of
§ 924(c) is unconstitutionally vague. See United States v. Davis, 139 S. Ct. 2319, 2336
(2019). We recently held, however, that the predicate felony for Hancock’s § 924(c)
conviction—Hobbs Act robbery—categorically qualifies as a crime of violence under
§ 924(c)’s force clause, which remains intact after Davis. See United States v. Mathis,
932 F.3d 242, 265-66 (4th Cir. 2019). We therefore conclude that Hancock’s challenge to
his § 924(c) conviction is without merit and the court correctly denied his motion to
dismiss.
Finally, Hancock contends that the court clearly erred in overruling his objection to
the obstruction-of-justice enhancement. He argues that he did not commit perjury at the
motions hearing because he sincerely believed that the dash cam video had been altered.
5 “We review criminal sentences for reasonableness using an abuse of discretion
standard. A sentence based on an improperly calculated Guidelines range is procedurally
unreasonable.” United States v. Shephard, 892 F.3d 666, 670 (4th Cir. 2018) (citations
omitted). “In assessing whether a district court properly calculated the Guidelines range,
including its application of any sentencing enhancements, we review the district court’s
legal conclusions de novo and its factual findings for clear error.” United States v. Fluker,
891 F.3d 541, 547 (4th Cir. 2018) (alterations and internal quotation marks omitted). “A
finding is clearly erroneous when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” United States v. Wooden, 887 F.3d 591, 602 (4th Cir. 2018) (internal
quotation marks omitted).
The obstruction-of-justice enhancement is appropriate when the defendant commits
perjury or provides materially false information to the court. See U.S. Sentencing
Guidelines Manual § 3C1.1 cmt. n.4(B), (F) (2014). To apply the enhancement on these
grounds, the sentencing “court must find by a preponderance that the defendant: (1) gave
false testimony; (2) concerning a material matter; (3) with the willful intent to deceive
(rather than as a result of confusion, mistake, or faulty memory).” United States v. Savage,
885 F.3d 212, 225 (4th Cir.), cert. denied, 139 S. Ct. 238 (2018). “Information is material
when, if believed, would tend to influence or affect the issue under determination.” Id.
(internal quotation marks omitted). And “to have acted willfully within the meaning of
this guideline, a defendant must consciously act with the purpose of obstructing justice.”
Id. (internal quotation marks omitted).
6 During the motions hearing, Hancock testified that the chase scene was reenacted
and that the reenacted portions were spliced into the beginning and end of the video to
make it look like he was at the crime scene and that the officers had not used excessive
force to stop his motorcycle. He denied being anywhere near the crime scene, accused the
officers of planting the firearm on him, and insisted that the officers and one of his attorneys
committed perjury. We find no clear error in the court’s determination that this testimony
was false, material to the suppression motion, and willfully made for the purpose of
obstructing justice. We therefore conclude that the court properly applied the obstruction-
of-justice enhancement.
VI.
We affirm the district court’s judgment. We deny Hancock’s motions for leave to
file a pro se supplemental brief and electronic media. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED