24-2430 United States v. Gunn
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2025
Argued: October 22, 2025 Decided: December 19, 2025
No. 24-2430-cr
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v.
RODERICK GUNN, AKA ZAPPA,
Defendant-Appellant. * _____________________________________
Before: LEVAL, LYNCH, and SULLIVAN, Circuit Judges.
Defendant Roderick Gunn appeals from an amended judgment of conviction entered by the United States District Court for the Southern District of New York (Alvin Hellerstein, J.), after a jury trial before the late Judge William S. Pauley III, finding him guilty of conspiracy to commit Hobbs Act robbery (Count One), attempt to commit Hobbs Act robbery (Count Three), and conspiracy to distribute and to possess with intent to distribute 100 kilograms or more of marijuana (Count Eight). The district court sentenced Gunn to 180 months’ imprisonment on Count One and to another 180 months
* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the caption above. on Count Three, to run consecutively, and to 60 months on Count Eight, to run concurrently. On appeal, Gunn principally contends that the district court erred in imposing consecutive sentences (which, in the aggregate, exceeded the Hobbs Act’s 20-year maximum allowable sentence for a single offense) on the two inchoate Hobbs Act charges (Counts One and Three), which related to the same robbery, because Congress did not clearly authorize consecutive sentences for those crimes. 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. Finding no error, we AFFIRM.
YUANCHUNG LEE, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.
JANE YUMI CHONG (James Ligtenberg, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
LEVAL, Circuit Judge:
Defendant Roderick Gunn appeals from an amended judgment of
conviction entered by the United States District Court for the Southern District
of New York (Alvin Hellerstein, J.), after a jury trial before the late Judge
William S. Pauley III, finding him guilty of conspiracy to commit Hobbs Act
robbery (Count One), attempt to commit Hobbs Act robbery (Count Three),
and conspiracy to distribute and to possess with intent to distribute 100
2 kilograms or more of marijuana (Count Eight). The district court sentenced
Gunn to 180 months’ imprisonment on Count One and to another 180 months
on Count Three, to run consecutively, and to 60 months on Count Eight, to run
concurrently. On appeal, Gunn principally contends that the district court
erred in imposing consecutive sentences (which, in the aggregate, exceeded the
Hobbs Act’s 20-year maximum allowable sentence for a single offense) on the
two inchoate Hobbs Act charges (Counts One and Three), which related to the
same robbery, because Congress did not clearly authorize consecutive
sentences for those crimes.
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. Finding no
error, we AFFIRM.
BACKGROUND
I. Offense Conduct and Indictment
Between 2001 and 2003, Gunn was a member of a crew that committed
armed robberies of narcotics traffickers in order to steal drugs and drug
proceeds. On two occasions relevant to this appeal, the robberies resulted in
3 murder. First, Gunn helped plan but was not present at an October 31, 2022,
robbery of a residence in Elmont, New York (the “Elmont Robbery”), during
which Gunn’s co-conspirator Alton Davis shot and killed Stephanie Laing.
Second, Gunn was present for and participated in the January 21, 2003, robbery
of a residence on Wickham Avenue in the Bronx, New York (the “Wickham
Robbery”), during which Davis shot and killed Gary Grey.
On August 16, 2007, the government filed an eight-count superseding
indictment against Gunn, Davis, and two other individuals for their
involvement in the Elmont and Wickham Robberies. Six of the eight counts
charged Gunn. In particular, Count One charged Gunn and his co-defendants
with conspiracy to commit Hobbs Act robberies of drug dealers, in violation of
18 U.S.C. § 1951. Count Two charged Gunn and his co-defendants with
attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2, based on
the Elmont Robbery. Count Three charged Gunn and his co-defendants with
attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2, based on
the Wickham Robbery. Count Six charged Gunn and his co-defendants with
using and carrying, and aiding and abetting the use, carrying, and possession
of, handguns, which were discharged, during and in relation to the Hobbs Act
4 robbery conspiracy charged in Count One and the attempted Hobbs Act
robbery charged in Count Three (the Wickham Robbery), in violation of 18
U.S.C. §§ 924(c)(1)(A)(iii) and 2. Count Seven charged Gunn and his co-
defendants with aiding and abetting the use of a handgun to shoot and kill an
individual during and in relation to the Hobbs Act robbery conspiracy charged
in Count One and the attempted Hobbs Act robbery charged in Count Three
(the Wickham Robbery), in violation of 18 U.S.C. §§ 924(j)(1) and 2. Count Eight
charged Gunn with conspiring to distribute and to possess with intent to
distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§
841(b)(1)(A) and 846. 1
II. Trial and Sentencing
On April 19, 2010, Gunn and Davis proceeded to trial before Judge
Pauley. On May 3, 2010, the jury acquitted Gunn on Count Two (attempted
1Gunn was not charged in Counts Four or Five. Count Four charged Davis with possessing a firearm, which was discharged, during and in relation to the Hobbs Act robbery conspiracy charged in Count One and the attempted Hobbs Act robbery charged in Count Two (the Elmont Robbery), in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2. Count Five charged Davis with using a semiautomatic pistol to shoot and kill an individual during and in relation to the Hobbs Act robbery conspiracy charged in Count One and the attempted Hobbs Act robbery charged in Count Two (the Elmont Robbery), in violation of 18 U.S.C. §§ 924(j)(1) and 2. 5 Hobbs Act robbery based on the Elmont Robbery), but found him guilty on the
remaining counts. 2 Davis was convicted on all counts.
On August 23, 2010, Judge Pauley sentenced Gunn to life imprisonment
on Count Seven, 20 years on each of Counts One and Three, and 40 years on
Count Eight, all to run concurrently with each other and with an undischarged
term of a sentence imposed in an earlier federal case. 3
III. Section 2255 Motion and Resentencing
On April 28, 2014, Gunn moved to vacate his judgment of conviction
2 On Count Eight, Gunn was convicted on the lesser-included offense of conspiracy to distribute and possess with intent to distribute 100 kilograms or more of marijuana, see 21 U.S.C. § 841(b)(1)(B)(vii), rather than 1,000 kilograms or more, see id. § 841(b)(1)(A)(vii). 3 On June 20, 2003, Gunn was arrested pursuant to a criminal complaint charging him with being an illegal alien in possession of a firearm. See 03 Cr. 1277. On December 19, 2003, following multiple proffer sessions with the United States Attorney’s Office during which Gunn disclosed criminal acts in which he and others were involved, Gunn, in exchange for a cooperation agreement, pled guilty to a six-count information alleging, among other things, conspiracy to commit robberies of narcotics dealers and to distribute marijuana. Thereafter, Gunn admitted to robberies about which he had not informed the government prior to pleading guilty, including his involvement in the Elmont and Wickham robberies. He admitted to having been involved in twelve other drug-related robberies and burglaries that he had not previously disclosed. The government rejected Gunn’s offer to cooperate. After the court denied his motion to withdraw his guilty plea, Gunn was sentenced to 141 months’ imprisonment followed by five years’ supervised release. 6 under 28 U.S.C. § 2255. In a letter supplementing the motion, he argued that
his conviction under §§ 924(c) (Count Six) and 924(j) (Count Seven) must be
vacated in light of the Supreme Court’s decision in Johnson v. United States, 576
U.S. 591 (2015), because Hobbs Act robbery conspiracy and attempted Hobbs
Act robbery no longer qualified as predicate “crime[s] of violence” under
§ 924(c). On October 19, 2022, after the case was reassigned to Judge
Hellerstein, the government submitted a letter agreeing that Gunn’s conviction
on Counts Six and Seven must be vacated in light of decisions by the Supreme
Court and this court following Johnson, namely, United States v. Davis, 588 U.S.
445 (2019), United States v. Taylor, 596 U.S. 845 (2022), and United States v.
Barrett, 937 F.3d 126 (2d Cir. 2019), and requesting that Gunn be resentenced
on the remaining counts.
In its Supplemental Presentence Report, the Probation Office
recalculated the U.S. Sentencing Guidelines (the “Guidelines”) range assuming
the vacatur of Counts Six and Seven. In particular, the Probation Office
determined that the appropriate offense level was 43, based on the cross-
reference for first-degree murder under §§ 2B3.1(c) and 2A1.1 of the Guidelines,
and that the appropriate criminal history category was III, based on a state
7 conviction for a 2003 attempted robbery in Manhattan, and Gunn’s convictions
in the earlier federal case. The Probation Office acknowledged that the
Guidelines range for the re-calculated offense level and criminal history would
be life imprisonment, but found that the appropriate Guidelines term was 960
months’ (or 80 years’) imprisonment, the total statutorily authorized maximum
sentences for the three counts of conviction.
The government filed a sentencing submission in which it urged the
court to impose the statutory maximum and Guidelines sentence of 80 years,
comprising 20 years’ imprisonment on Count One, 20 years on Count Three,
and 40 years on Count Eight, to run consecutively. Gunn filed his own
sentencing submission acknowledging that the statutory maximum and
Guidelines recommendation was 80 years but arguing for a sentence of time
served.
At the resentencing on May 6, 2024, Judge Hellerstein granted Gunn’s
§ 2255 motion and vacated his conviction on Counts Six and Seven. Judge
Hellerstein then proceeded to a de novo resentencing, during which he adopted
the factual findings and Guidelines calculation in the Supplemental
Presentence Report and imposed a sentence of 360 months’ imprisonment, to
8 run consecutive to the undischarged portion of the sentence imposed in Gunn’s
prior federal case. Judge Hellerstein clarified on the record that he was
imposing “180 months on Count One and 180 months on Count Three to run
consecutively, and 60 months on Count Eight to run concurrently.” App’x at
153–54. Gunn did not object to the district court’s adoption of the factual
findings and Guidelines calculation in the Supplemental Presentence Report,
or to the sentence imposed.
Gunn appeals from the May 6, 2024, amended judgment and
resentencing.
DISCUSSION
On appeal, Gunn principally contends that the district court erred by
imposing consecutive terms of imprisonment on his Hobbs Act robbery
conspiracy and attempted Hobbs Act robbery sentences. Through
supplemental pro se briefing, Gunn argues that the district court further erred
by: (1) counting certain prior convictions toward his criminal history score;
(2) applying the Guidelines’ first-degree-murder cross-reference; (3) declining
to apply a three-level reduction to his offense level under U.S.S.G.
§ 2X1.1(b)(1)–(2); (4) failing to consider various “non-frivolous” arguments
9 regarding sentencing or to adequately explain its decision to impose
consecutive sentences on Counts One and Three; and (5) failing to consider
Amendment 826 to the Guidelines, which excludes acquitted conduct from the
definition of relevant conduct. We address each argument in turn.
I. Imposition of Consecutive Sentences for Robbery Conspiracy and Attempted Robbery Under the Hobbs Act
Gunn argues that the district court erred in imposing consecutive
sentences for two convictions, one for Hobbs Act robbery conspiracy, and
another for attempted Hobbs Act robbery, especially because the consecutive
terms in the aggregate exceeded the Act’s statutory maximum sentence for a
single offense. “We review a challenge to the substantive reasonableness of a
sentence, including the decision as to whether to impose a concurrent or
consecutive sentence, under the deferential abuse-of-discretion standard.”
United States v. Rivera, No. 23-6116-cr, 2024 WL 4448848, at *2 (2d. Cir. Oct. 9,
2024) (summary order) (citing United States v. Rodriguez, 715 F.3d 451, 451 (2d
Cir. 2013)). However, an abuse of discretion can be found when a decision is
predicated on an error of law, and where, as here, an appellant argues that
consecutive sentences are not permitted as a matter of law, we review that legal
question de novo. See ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d 105,
10 110 (2d Cir. 2009). Because Gunn failed to challenge his sentence in the district
court, we review for plain error. See United States v. Hendricks, 921 F.3d 320, 326
(2d Cir. 2019); Fed. R. Crim. P. 52(b). 4 For an error to be “plain,” it must be
“clear or obvious, rather than subject to reasonable dispute.” United States v.
Prawl, 149 F.4th 176, 188 (2d Cir. 2025) (internal quotation marks omitted).
Gunn contends that imposition of consecutive penalties on a defendant
who violates two provisions of the same statute is permissible only where
Congress has clearly authorized it, and there is nothing in the structure or
legislative history of the Hobbs Act, 18 U.S.C. § 1951(a), to indicate that
Congress intended sentences for robbery conspiracy and attempted robbery to
4 We reject Gunn’s argument that a “relaxed” form of plain-error review applies here. Gunn Br. at 11. As Gunn acknowledges, we have employed a “relaxed” form of plain-error review only “in those rare cases in which the defendant lacked sufficient prior notice” of an aspect of his sentence. United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015). Here, Gunn had ample notice of the potential that the district court would impose consecutive sentences for Counts One and Three: the Supplemental Presentence Report, the government’s sentencing submission, and even Gunn’s own sentencing submission all contemplated that scenario. Gunn received further notice of, and an opportunity to object to, the imposition of consecutive sentences on Counts One and Three at the resentencing hearing before Judge Hellerstein. Under such circumstances, ordinary plain-error review is appropriate. We note, however, that even if we were to apply the relaxed plain-error standard, we would reach the same result. 11 run consecutively where the offenses “arise from the same set of facts.” Gunn
Br. at 9, 12. 5 We disagree.
The federal statute governing the “[i]mposition of concurrent or
consecutive terms” in cases involving multiple counts of conviction expressly
provides that, generally, “[i]f multiple terms of imprisonment are imposed on
a defendant at the same time, . . . the terms may run concurrently or
consecutively.” 18 U.S.C. § 3584(a). 6 And, as this court has previously
5 Gunn does not dispute that Hobbs Act robbery conspiracy and attempted Hobbs Act robbery are separate offenses for purposes of double jeopardy under Blockburger v. United States. See 284 U.S. 299, 304 (1932) (holding that, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not”). Rather, he contends that the Blockburger rule is irrelevant to this appeal because (i) Blockburger applies only when comparing offenses in separate statutes, not offenses in separate clauses within the same statute; and (ii) courts need reach the question whether offenses are “separate” under Blockburger only if it is clear that Congress intended multiple penalties, and the question arises whether the imposition of multiple penalties is constitutionally permissible. We agree that we need not address the Blockburger test, because we conclude, based in part on our reading of the text and background of the Hobbs Act, that Congress clearly intended to allow consecutive sentences for attempt and conspiracy, and Gunn does not raise a constitutional double jeopardy argument. 6 The statute further provides that consecutive sentences may not be imposed
“for an attempt and for another offense that was the sole objective of the attempt.” Id. That exception does not apply here.
12 recognized, “Congress has not prohibited consecutive sentences for attempts
and conspiracies that have the same object.” United States v. Rahman, 189 F.3d
88, 158 n.36 (2d Cir. 1999). It follows that courts may impose consecutive
sentences on a defendant convicted for both Hobbs Act robbery conspiracy and
attempted Hobbs Act robbery. See, e.g., United States v. Collymore, No. 23-7333,
2024 WL 4707184, at *1 (2d Cir. Nov. 7, 2024) (summary order).
Gunn’s argument to the contrary relies chiefly on Prince v. United States,
in which the Supreme Court held that the crimes of entering a bank with intent
to commit a robbery and robbery are “merged” “when the latter is
consummated,” and that, under such circumstances, consecutive sentences for
the two offenses were not permissible. 352 U.S. 322, 324, 329 (1957). In reaching
this conclusion, the Court concluded that it was “a fair inference from the
wording in the [Federal Bank Robbery] Act . . . that the unlawful entry
provision was inserted to cover the situation where a person enters a bank for
the purpose of committing a crime, but is frustrated for some reason before
completing the crime.” Id. at 328. Absent any legislative history to the contrary,
the Court concluded that “when Congress made either robbery or an entry for
that purpose a crime [with a maximum allowable punishment of 20 years], it
13 intended that the maximum punishment for robbery should remain at 20 years,
but that, even if the culprit should fall short of accomplishing his purpose, he
could be imprisoned for 20 years for entering with the felonious intent.” Id. at
328–29 (footnote omitted). In other words, while it was “manifestly the purpose
of Congress to establish lesser offenses,” there was “no indication that
Congress intended also to pyramid the penalties.” Id. at 327.
Gunn contends that Prince is the controlling authority where, as here,
there is nothing in the text or legislative history clearly establishing that two
offenses under a statute be punished consecutively. His argument overreads
Prince. In finding that entry with intent to rob and robbery offenses could not
be punished consecutively, the Prince Court emphasized the “unique”
character and “limited purpose” of the Federal Bank Robbery Act, noting that
“the question of interpretation is a narrow one, and [the Court’s] decision
should be correspondingly narrow.” Id. at 325. The Court proceeded to analyze
the text and structure of the Act in light of its “apparent purpose.” Id. at 327–
28. The Court did not suggest, as Gunn argues, that consecutive sentences are
forbidden wherever legislative history is inconclusive.
14 We have previously recognized Prince’s “limited scope,” holding that the
Prince rule applies only when the two offenses in question arise under statutory
provisions that Congress intended to structure “in such a way as to criminalize
successive stages of a single undertaking.” United States v. Weingarten, 713 F.3d
704, 709–10 (2d Cir. 2013) (internal quotation marks omitted). Indeed, this court
has extended Prince “only to a limited number of statutes.” Id. at 710. In United
States v. Gore, for example, we applied Prince’s merger rule to possession of a
controlled substance with intent to distribute and distribution of the controlled
substance, “where the distribution itself is the sole evidence of possession, or
where possession is shown to exist only at the moment of distribution.” 154
F.3d 34, 45–47 (2d Cir. 1998) (internal quotation marks omitted). And in United
States v. Valot, we held that Prince applied to possession of a controlled
substance on board an aircraft and illegal importation, where the controlled
substance was carried on the aircraft only on the flight that effectuated the
importation. 481 F.2d 22, 27 (2d Cir. 1973). In these cases, we concluded that
Congress, by criminalizing possession of a controlled substance, intended to
cover scenarios where a person takes a step toward engaging in the principal
conduct prohibited by the statute, but is unable to complete the principal
15 offense conduct. See Gore, 154 F.3d at 46 (concluding that Congress criminalized
possession with intent to distribute to cover “cases involving an
unconsummated distribution of a controlled substance”); Valot, 481 F.2d at 27
(concluding that Congress criminalized possession of a controlled substance on
board an aircraft to “cover cases involving the unconsummated importation of
a controlled substance”).
As a corollary, we have held that the Prince rule does not extend to cases
“where the two offenses are distinct crimes and cannot be characterized as a
preliminary step and a consummated act.” Weingarten, 713 F.3d at 710. In
Weingarten, for example, we found that Prince did not apply, and that
consecutive sentences were therefore appropriate, where the defendant had
been convicted of transportation of a minor with intent to engage in criminal
sexual activity, in violation of 18 U.S.C. § 2423(a), and of travel with intent to
engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). See id. at 707.
We reasoned that the relevant subsections of § 2423 cover “distinct crimes” that
“cannot be characterized as a preliminary step and a consummated act” and
that “can be completed without contemplation of the other.” Id. at 710.
16 We have never held that Congress intended to treat Hobbs Act robbery
conspiracy and attempt as “successive stages of a single undertaking.” Id. at
709 (internal quotation marks omitted). To the contrary, it is well settled that
the two are fundamentally different. “[T]he essence of [conspiracy] is an
agreement to commit an unlawful act,” Iannelli v. United States, 420 U.S. 770,
777 (1975), and “the criminal agreement itself is the actus reus,” United States v.
Shabani, 513 U.S. 10, 16 (1994). In contrast, “the proper concern of the law of
attempts is the dangerousness of the actor, as a person manifesting a firm
disposition to commit a crime, not the dangerousness of his conduct.” United
States v. Ivic, 700 F.2d 51, 66 (2d Cir. 1983) (Friendly, J.), abrogated on other
grounds by Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994); see also
United States v. Farhane, 634 F.3d 127, 145 (2d Cir. 2011) (“A conviction for
attempt requires proof that a defendant (a) had the intent to commit the object
crime and (b) engaged in conduct amounting to a substantial step towards its
commission.”).
The Supreme Court recognized the distinctiveness of conspiracy offenses
in Callanan v. United States, 364 U.S. 587 (1961). There, the Court held that a
defendant convicted under the Hobbs Act of (i) the substantive crime of
17 obstructing commerce by extortion and (ii) conspiracy to obstruct commerce
by extortion could be sentenced consecutively for those offenses. Id. at 597. In
so holding, the Court called the distinction between a substantive offense and
conspiracy to commit that offense “a postulate of our law,” and summarized
the fundamental differences as follows:
[C]ollective criminal agreement—partnership in crime—presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.
Id. at 593–94. The Court observed that these features of conspiracy are “the
presuppositions of the separately defined crimes in [the Hobbs Act],” and
“[t]he punitive consequences that presumably flow from them must be placed
in such context.” Id. at 594; see also id. (attributing to Congress “a tacit purpose—
in the absence of any inconsistent expression—to maintain a long-established
18 distinction between offenses essentially different” (internal quotation marks
omitted)).
Gunn seeks to distinguish Callanan on the grounds that it involved
conspiracy and a substantive offense, not conspiracy and attempt, and that
conspiracy and attempt are “not historically distinctive crimes.” Gunn Br. at 18
(internal quotation marks omitted). We are not persuaded. Callanan instructs
that the commission of a substantive offense and a conspiracy to commit it are
considered separate and distinct because conspiracy is concerned with a
distinct form of “socially reprehensible conduct: collective criminal
agreement.” Callanan, 364 U.S. at 593; see also Pinkerton v. United States, 328 U.S.
640, 643 (1946) (holding that “the commission of the substantive offense and a
conspiracy to commit it are separate and distinct”). By the same logic, an
attempt to commit a substantive offense and a conspiracy to commit the
substantive offense are also distinct; unlike conspiracy, attempt is concerned
with the harm from an individual “manifesting a firm disposition to commit a
crime.” Ivic, 700 F.2d at 66.
Accordingly, the district court did not err, let alone plainly err, in
sentencing Gunn to consecutive terms of imprisonment on Counts One and
19 Three. See, e.g., Collymore, 2024 WL 4707184, at *1 (affirming consecutive
sentences for Hobbs Act robbery conspiracy and attempt to commit Hobbs Act
robbery). 7 As Gunn’s engagement in a conspiracy to violate the Hobbs Act and
in an attempt to violate the Hobbs Act are two separate criminal violations of
the Hobbs Act, for which consecutive sentences are appropriate, we find no
merit to his further argument that the consecutive sentences may not in the
aggregate exceed the Act’s statutory maximum sentence for a single violation
of the Act.
II. Pro Se Arguments
Next, we briefly address the arguments raised in Gunn’s pro se
supplemental brief.
a. Calculation of Criminal History Category
Gunn contends that the district court erred by counting two of Gunn’s
prior sentences toward his criminal history score. Because Judge Hellerstein’s
decision to account for these prior sentences depended on his factual finding
that the underlying offenses were factually distinct from the offenses in the
7 To the extent Gunn argues that his interpretation of Prince “flows from” the rule of lenity, we are not persuaded. As we recognized in Collymore, “that rule ‘only serves as an aid for resolving an ambiguity; it is not to be used to beget one.’” 2024 WL 4707184, at *1 (quoting Callanan, 364 U.S. at 596). 20 instant case, we review for clear error. See United States v. Cramer, 777 F.3d 597,
601 (2d Cir. 2015). “A finding of fact is clearly erroneous only if, after reviewing
all of the evidence, this Court is left with the definite and firm conviction that
a mistake has been committed.” Id. (internal quotation marks omitted).
“The Sentencing Guidelines provide that criminal history points are to
be allocated for prior sentences, defined as sentences previously imposed for
conduct that is not part of the instant offense.” United States v. Burden, 600 F.3d
204, 227 (2d. Cir. 2010) (citing U.S.S.G. § 4A1.2(a)(1)). “Conduct that is part of
the instant offense is further defined as that which is relevant conduct to the
instant offense under the provisions of § 1B1.3.” Id. (internal quotation marks
omitted). “Section 1B1.3, in turn, provides that relevant conduct includes acts
that were part of the same course of conduct or common scheme or plan as the
offense of conviction.” Id. (internal quotation marks omitted).
At the resentencing hearing, Judge Hellerstein found that Gunn’s
criminal history category was III based on Gunn’s prior sentences for: (i) a state
conviction for a March 2003 attempted robbery committed with Ronald
Knibbs—one of Gunn’s co-conspirators in the Wickham Robbery—on West
111th Street in Manhattan; and (ii) his convictions in his prior federal case. Gunn
21 argues that these offenses “were part of the same course of conduct or common
scheme or plan as the offense of conviction” in the instant case. Pro Se Br. at 8.
For the reasons set forth below, Gunn has not established that Judge Hellerstein
erred, let alone clearly erred, in finding that the conduct underlying these
earlier sentences was “not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1).
First, Gunn has not established that his prior state conviction was part of
the “same course of conduct or common scheme or plan” charged in this case.
U.S.S.G. § 1B1.3(a)(2). In that regard, the Supplemental Presentence Report
states that in March 2003, Gunn and co-conspirator Knibbs approached a victim
at a residential building on West 111th Street in Manhattan, threatened the
victim with a pistol while forcibly entering the victim’s building, took the
victim’s cell phone, and then fled the scene. This conduct is readily
distinguishable from the offense conduct in the instant case, which took place
at different times and places, and involved an additional co-conspirator (Davis)
and different victims (Laing and Grey).
The only support that Gunn provides for his contention that the state
conviction is substantially connected to his conviction in this case is his
assertion that, prior to trial in this case, Knibbs pled guilty to an information in
22 which the government “posit[ed]” that the robbery on West 111th Street is “part
of the overall Hobbs Act conspiracy charged in Gunn’s superseding
indictment” in this case. Pro Se Br. at 6. But the Knibbs information does not
“posit” the connection that Gunn describes. And even if it did, Gunn cites no
authority for the proposition that an information filed against another
defendant could alter the scope of the conspiracy charged in the instant case. 8
Gunn has likewise failed to demonstrate that his prior federal conviction
was part of the same course of conduct charged in this case. In Gunn’s prior
federal case, he was charged with participating in a conspiracy to rob narcotics
traffickers that ran from the summer of 2001 to the summer of 2002, as well as
six separate robberies or attempted robberies which generally involved the
robbers’ impersonation of police officers, and which did not result in murder.
See United States v. Gunn (Gunn I), 366 F. App’x 215, 218 (2d Cir. 2010) (summary
order). In this case, by contrast, Gunn was charged with a conspiracy to rob
narcotics traffickers in a period subsequent to the end of the conspiracy period
8Gunn also points out that a handgun seized during his arrest for the West 111th Street robbery was introduced at the trial in this case and used to establish his involvement in the Wickham and Elmont robberies. But Gunn fails to explain how the presence of the same handgun during multiple robberies establishes that the robberies are part of the “same course of conduct or common scheme or plan.” U.S.S.G. § 1B1.3(a)(2). 23 charged in the prior federal case. In addition, the newly charged conspiracy
had different leadership (Davis), and different objectives (committing the
Elmont and Wickham robberies).
Although Gunn argues that it is “undisputed” that the crimes charged in
his prior federal case were part of the same course of conduct as the crimes
charged in this case, Pro Se Br. at 8, this court rejected that same argument in
Gunn I. See 66 F. App’x at 219 (finding, for purposes of double jeopardy, that
the robbery conspiracies charged in the instant case and the prior federal case
are “factually distinct, independent robbery conspiracies carried out at
different times, by different means, under different leadership”). We observed
that the two conspiracies could be distinguished “as to both personnel and the
level of violence employed to carry out the particular robbery objectives.” Id.
at 218. We further observed that the difference between the conspiracies “[was]
convincingly evidenced by” the absence of the Elmont and Wickham robberies
from an appendix to Gunn’s cooperation agreement in his prior federal case,
24 which listed criminal conduct relevant to his plea in that case. Id. Our reasoning
in Gunn I applies here with equal force. 9
Accordingly, we find no error, let alone clear error, in the district court’s
use of Gunn’s prior convictions to calculate his criminal history category.
b. Applicability of First-Degree-Murder Cross-Reference
9 At his resentencing hearing, Gunn argued that our analysis of the differences between the conspiracies in Gunn I does not resolve the question of appropriate criminal history level under the Guidelines because Gunn I “addressed double jeopardy” and therefore applied the “much stricter and narrower Blockburger test of whether the elements are identical.” App’x at 105. But our analysis in Gunn I was not so confined. Indeed, we never cited Blockburger in our Gunn I opinion. Instead, we relied on our test for determining “whether successive conspiracy prosecutions target the same offense,” which looks to the following factors:
(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies.
Gunn I, 366 F. App’x at 217 (quoting United States v. Korfant, 771 F.2d 660, 662 (2d Cir.1985)). These factors track the definition of “relevant conduct” under § 1B1.3 of the Guidelines. See United States v. Lokey, 945 F.2d 825, 839 (2d Cir. 1991) (noting that “conduct that is part of the same conspiracy is ‘relevant conduct’ under [U.S.S.G.] § 1B1.3”). 25 Gunn next contends that the district court erred in calculating Gunn’s
offense level by applying the cross-reference for first-degree murder under
Sections 2B3.1 and 2A1.1 of the Guidelines. The parties agree that plain-error
review applies.
Under Sections 2B3.1 and 2A1.1 of the Guidelines, an offense level of 43
is appropriate when death results from the commission of a robbery. That is
true even if the death was a consequence of someone else’s actions; under
Section 1B1.3(a)(1)(B) of the Guidelines, a court may, in determining the
appropriate offense level for a defendant involved in “a jointly undertaken
criminal activity,” account for “all acts and omissions of others.” In interpreting
Section 1B1.3(a)(1)(B), our court has held that “in order to hold a defendant
accountable for the acts of others, a district court must make two findings:
1) that the acts were within the scope of the defendant’s agreement and 2) that
they were foreseeable to the defendant.” United States v. Studley, 47 F.3d 569,
574 (2d Cir. 1995).
Gunn argues that the district court “did not make a particularized
finding that Grey’s murder was within the scope of the specific conduct and
26 objectives embraced by the agreement” between himself and Davis. Pro Se Br.
at 11. We disagree.
The district court’s factual findings at the resentencing hearing establish
that Grey’s murder was within the scope of the conspiracy to commit the
Wickham Robbery. In that regard, Judge Hellerstein found that Gunn “knew
that guns were used, he knew guns were available, he knew the guns were
loaded.” App’x at 100–01. The court further found that “[i]f you have a firearm,
you intend to use the firearm,” and “[a]iding and abetting the use of a firearm
means that Gunn knew and nevertheless helped the use of the firearm in
connection with accomplishing the Hobbs Act robbery. That was the plan.” Id.
at 101.
The district court also found that Grey’s murder was foreseeable to
Gunn. In particular, Judge Hellerstein stated that “[t]here is no riskier activity
than going into . . . a den of narcotics criminals and seeking to take away their
drugs and their money,” and that “[t]he probability of violence” and “[t]he
probability of use of a gun, of someone getting killed” under such
circumstances[,] “is high.” Id. at 103–04. The district court also adopted the
Supplemental Presentence Report, which explained that prior to the robbery
27 and murder, Davis called another co-conspirator, Derrilyn Needham, to
discuss the robbery plan and told her that he planned to kill Grey, and that
Needham relayed Davis’s plan to Gunn.
Accordingly, the district court did not err, let alone plainly err, in
applying the first-degree murder cross-reference under Sections 2B3.1 and
2A1.1 of the Guidelines.
c. Entitlement to three-level reduction under § 2X1.1(b)
Gunn argues that the district court erred by failing to apply a three-level
reduction to his offense level under Section 2X1.1(b) of the Guidelines. Because
Gunn did not raise this argument below, we review for plain error.
Section 2X1.1(b)(1) of the Guidelines provides for a three-level reduction
in the offense level for an attempt “unless the defendant completed all the acts
the defendant believed necessary for successful completion of the substantive
offense or the circumstances demonstrate that the defendant was about to
complete all such acts but for apprehension or interruption by some similar
event beyond the defendant’s control.” Section 2X1.1(b)(2) provides for a three-
level reduction in the offense level for a conspiracy, subject to the same
exceptions as Section 2X1.1(b)(1) except that (b)(2) additionally considers the
28 acts of any co-conspirator. “The relevant question” under both sections is
whether the conspiracy or attempt “ripened into a substantially completed
offense or came close enough to fruition.” United States v. Downing, 297 F.3d 52,
62 (2d Cir. 2022) (alterations adopted and internal quotation marks omitted).
Here, there is no question that the conspiracy to rob and attempted
robbery of the Wickham residence came “close enough to fruition” to deny the
three-point reduction under Sections 2X1.1(b)(1) and (2) of the Guidelines. Id.
(internal quotation marks omitted). At trial, the government introduced
evidence showing that during the Wickham Robbery, Gunn and Davis entered
Grey’s home; beat Grey and Mark Wright, an individual staying at Grey’s
house; tied up the victims with plastic straps and interrogated them regarding
the location of drug proceeds; and, with the help of Knibbs, searched the house.
After finding no drug proceeds in Grey’s home and learning that Grey kept
money at his girlfriend’s home, Davis directed Needham and Knibbs to go to
Grey’s girlfriend’s house to search for the drug proceeds, which they did. Back
at Grey’s house, Wright escaped, and Davis shot and killed Grey. Davis and
Gunn then directed Needham and Knibbs to leave Grey’s girlfriend’s house.
That they came away with nothing is of no moment. As we have
29 explained, eligibility for a three-level reduction under 2X1.1(b) turns “on the
conduct of the defendant, not on the probability that a conspiracy would have
achieved success.” United States v. Medina, 74 F.3d 413, 418 (2d Cir. 1996)
(emphasis in original). And the “near accomplishment of the criminal object
normally poses enough risk of actual harm, and reveals enough culpability to
defeat the reduction.” Id. (internal quotation marks omitted).
Accordingly, the district court did not err, much less plainly err, in
declining to apply a three-level reduction under Section 2X1.1(b) of the
Guidelines.
d. Gunn’s Arguments Regarding Sentencing
Gunn also contends that the district court failed to consider adequately
various “non-frivolous arguments” regarding sentencing or explain
adequately its decision to impose consecutive sentences. Pro Se Br. at 15–19.
Those arguments are without merit.
First, Gunn contends that the district court failed to consider
unwarranted sentencing disparities between himself and “coconspirators
[(Needham and Knibbs)] who had been released,” in violation of 18 U.S.C.
§ 3553(a)(6). Pro Se Br. at 16. But we have held that Section 3553(a)(6) “does not
30 require a district court to consider disparities between co-defendants.” United
States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008). In any event, Needham and
Knibbs were not similarly situated to Gunn because, as the district court
recognized, they cooperated with the government and testified at trial.
Second, Gunn contends that the district court erred by failing to grant a
downward departure to the second-degree-murder guideline. We have held
that “a refusal to downwardly depart is generally not appealable, and that
review of such a denial will be available only when a sentencing court
misapprehended the scope of its authority to depart or the sentence was
otherwise illegal.” United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006)
(internal quotation marks omitted). Nothing in the record before us suggests
that the district court did not understand its authority to grant the requested
departure or that the sentence was otherwise illegal. See United States v. Torres,
124 F.4th 84, 106 (2d Cir. 2024) (“Absent clear evidence of a substantial risk that
the judge misapprehended the scope of his departure authority, we presume
the district court accurately understood its authority.” (internal quotation
marks omitted)).
Third, Gunn contends that Judge Hellerstein failed to explain adequately
31 his decision to impose consecutive sentences. Judge Hellerstein’s reasons for
imposing the sentence, however, are clear from the record. See, e.g., App’x at
105 (“Gunn has been a one-man crime wave who has gone through life in this
country causing havoc, ruin, and pain.”); id. at 107 (“You’re dealing with a man
who was intimately involved in robberies.”).
Gunn’s miscellaneous objections to his sentence do not provide a basis
for reversal.
e. Applicability of Amendment 826
Finally, Gunn argues that the district court erred by refusing to consider
Amendment 826 to Section 1B1.3 of the Guidelines when calculating the
Guidelines range at his resentencing. We are not persuaded.
Under Amendment 826, “relevant conduct” under Section 1B1.3(c)
excludes any conduct “for which the defendant was . . . acquitted in federal
court, unless such conduct also establishes, in whole or in part, the instant
offense of conviction.” Here, even assuming the vacatur of Counts Six and
Seven amounts to an acquittal on those charges, Amendment 826 does not
apply to Gunn’s new sentence at least because it was not yet in effect at the time
of Gunn’s May 2024 resentencing. See U.S. SENT’G GUIDELINES MANUAL app. C
32 at 265 (U.S. SENT’G COMM’N 2025) (providing that “[t]he effective date of this
amendment is November 1, 2024).
Accordingly, the district court did not err in declining to consider
Amendment 826 when calculating the Guidelines range.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentence. All
pending motions are denied.