23-6571-cr United States v. McIntosh
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of April, two thousand twenty-six.
PRESENT: RAYMOND J. LOHIER, JR., SARAH A. L. MERRIAM, Circuit Judges, MARY KAY LANTHIER, District Judge. * ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 23-6571-cr
LOUIS MCINTOSH, AKA LOU D, AKA LOU DIAMOND, AKA G,
Defendant-Appellant. ** ------------------------------------------------------------------
*Judge Mary Kay Lanthier, of the United States District Court for the District of Vermont, sitting by designation.
** The Clerk of Court is directed to amend the caption as set forth above. FOR DEFENDANT-APPELLANT: DONNA R. NEWMAN, Law Offices of Donna R. Newman, PA, New York, NY
FOR APPELLEE: BENJAMIN KLEIN (Michael D. Maimin, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY
Appeal from a judgment of the United States District Court for the
Southern District of New York (Sidney H. Stein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant Louis McIntosh appeals from a May 3, 2023 amended judgment
of the United States District Court for the Southern District of New York (Stein,
J.) sentencing him principally to a term of 300 months’ imprisonment. We
assume the parties’ familiarity with the underlying facts and the record of prior
proceedings, to which we refer only as necessary to explain our decision to
affirm.
2 Following a two-week jury trial in 2013, McIntosh was convicted on eleven
counts, including Hobbs Act robbery, attempted Hobbs Act robbery, 1 Hobbs Act
robbery conspiracy, possessing firearms as a convicted felon and firearms
offenses under 18 U.S.C. § 924(c). 2 He was originally sentenced principally to a
term of 720 months’ imprisonment. After an appeal, the District Court
resentenced him principally to a term of 300 months’ imprisonment. On appeal
from that resentencing, McIntosh challenges his sentence as both procedurally
and substantively unreasonable.
I. Procedural Reasonableness
“We review a district court’s sentencing decision for procedural and
substantive reasonableness, using a ‘deferential abuse-of-discretion standard.’”
United States v. Vargas, 961 F.3d 566, 570 (2d Cir. 2020). Procedural
reasonableness focuses on whether a district court “fails to calculate the
1 After trial, the District Court overturned the jury’s verdict of the attempted Hobbs Act robbery count, which we later reinstated on direct appeal. United States v. McIntosh, No. 14-1908, 2023 WL 382945, at *3–5 (2d Cir. Jan. 25, 2023) (summary order).
2 McIntosh was convicted of four separate § 924(c) offenses, two of which were dismissed by the District Court. We vacated the dismissal of his § 924(c) conviction in connection with the Hobbs Act conspiracy count and affirmed the dismissal of his § 924(c) conviction in connection with the attempted Hobbs Act robbery count in light of United States v. Davis, 588 U.S. 445 (2019), and United States v. Taylor, 596 U.S. 845 (2022). See McIntosh, 2023 WL 382945, at *1, *5. 3 Guidelines range . . . , makes a mistake in its Guidelines calculation, . . . treats the
Guidelines as mandatory . . . [,] does not consider the [18 U.S.C.] § 3553(a)
factors, or rests its sentence on a clearly erroneous finding of fact.” United States
v. Matta, 777 F.3d 116, 124 (2d Cir. 2015) (quotation marks omitted).
First, McIntosh challenges the three-level bodily-injury enhancement
applied to Count Five 3 under § 2B3.1(b)(3)(D) of the Guidelines. 4 That section
applies when a victim sustains an injury more severe than a mere “Bodily Injury”
but less severe than a “Serious Bodily Injury.” U.S.S.G. § 2B3.1(b)(3)(A), (B).
“Bodily injury” is a “significant injury; e.g., an injury that is painful and obvious,
or is of a type for which medical attention ordinarily would be sought,” whereas
“[s]erious bodily injury” is an “injury involving extreme physical pain or the
protracted impairment of a [bodily] function . . . or requiring [significant]
medical intervention.” Id. § 1B1.1 cmt. nn.1(B), (M) (quotation marks omitted).
The trial record and Presentence Investigation Report (“PSR”) support the
District Court’s finding that McIntosh repeatedly used a stun gun on a bound
and gagged victim’s neck and genitals. The District Court did not clearly err in
3 Because the Indictment was renumbered for trial, we refer to the revised count numbers. 4 We apply the 2021 Guidelines Manual, as the Probation Office did in preparing the
Supplemental Presentence Report. 4 therefore also finding that the victim, who experienced multiple, lengthy shocks
to his body, sustained an injury within the meaning of § 2B3.1(b)(3)(D).
Second, McIntosh challenges the four-level leadership enhancement under
§ 3B1.1(a) that the District Court applied to Counts Five, Seven, and Nine
through Eleven. Although McIntosh does not dispute that he held a leadership
role, he argues that the charged conduct neither involved five or more
participants nor was otherwise extensive. See id. § 3B1.1(a). “The determination
of a defendant’s role in the offense is to be made on the basis of all conduct
within the scope of §1B1.3 (Relevant Conduct), . . . and not solely on the basis of
elements and acts cited in the count of conviction.” Id. ch. 3, pt. B intro. cmt. The
District Court thus properly relied on the broader robbery scheme in which
McIntosh participated rather than limiting its analysis to the counts of
conviction. See United States v. Greer, 285 F.3d 158, 181–82 (2d Cir. 2002). The
PSR, which the District Court adopted without objection, fully supports the
District Court’s finding that McIntosh led a robbery crew consisting of at least six
participants as part of the broader robbery scheme. We accordingly find no error
5 with respect to the challenged four-offense-level increase to these counts under
§ 3B1.1(a). 5
Third, McIntosh argues that the District Court improperly increased the
sentence imposed on his non-§ 924(c) counts of conviction from 36 months at the
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23-6571-cr United States v. McIntosh
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of April, two thousand twenty-six.
PRESENT: RAYMOND J. LOHIER, JR., SARAH A. L. MERRIAM, Circuit Judges, MARY KAY LANTHIER, District Judge. * ------------------------------------------------------------------ UNITED STATES OF AMERICA,
Appellee,
v. No. 23-6571-cr
LOUIS MCINTOSH, AKA LOU D, AKA LOU DIAMOND, AKA G,
Defendant-Appellant. ** ------------------------------------------------------------------
*Judge Mary Kay Lanthier, of the United States District Court for the District of Vermont, sitting by designation.
** The Clerk of Court is directed to amend the caption as set forth above. FOR DEFENDANT-APPELLANT: DONNA R. NEWMAN, Law Offices of Donna R. Newman, PA, New York, NY
FOR APPELLEE: BENJAMIN KLEIN (Michael D. Maimin, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY
Appeal from a judgment of the United States District Court for the
Southern District of New York (Sidney H. Stein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant Louis McIntosh appeals from a May 3, 2023 amended judgment
of the United States District Court for the Southern District of New York (Stein,
J.) sentencing him principally to a term of 300 months’ imprisonment. We
assume the parties’ familiarity with the underlying facts and the record of prior
proceedings, to which we refer only as necessary to explain our decision to
affirm.
2 Following a two-week jury trial in 2013, McIntosh was convicted on eleven
counts, including Hobbs Act robbery, attempted Hobbs Act robbery, 1 Hobbs Act
robbery conspiracy, possessing firearms as a convicted felon and firearms
offenses under 18 U.S.C. § 924(c). 2 He was originally sentenced principally to a
term of 720 months’ imprisonment. After an appeal, the District Court
resentenced him principally to a term of 300 months’ imprisonment. On appeal
from that resentencing, McIntosh challenges his sentence as both procedurally
and substantively unreasonable.
I. Procedural Reasonableness
“We review a district court’s sentencing decision for procedural and
substantive reasonableness, using a ‘deferential abuse-of-discretion standard.’”
United States v. Vargas, 961 F.3d 566, 570 (2d Cir. 2020). Procedural
reasonableness focuses on whether a district court “fails to calculate the
1 After trial, the District Court overturned the jury’s verdict of the attempted Hobbs Act robbery count, which we later reinstated on direct appeal. United States v. McIntosh, No. 14-1908, 2023 WL 382945, at *3–5 (2d Cir. Jan. 25, 2023) (summary order).
2 McIntosh was convicted of four separate § 924(c) offenses, two of which were dismissed by the District Court. We vacated the dismissal of his § 924(c) conviction in connection with the Hobbs Act conspiracy count and affirmed the dismissal of his § 924(c) conviction in connection with the attempted Hobbs Act robbery count in light of United States v. Davis, 588 U.S. 445 (2019), and United States v. Taylor, 596 U.S. 845 (2022). See McIntosh, 2023 WL 382945, at *1, *5. 3 Guidelines range . . . , makes a mistake in its Guidelines calculation, . . . treats the
Guidelines as mandatory . . . [,] does not consider the [18 U.S.C.] § 3553(a)
factors, or rests its sentence on a clearly erroneous finding of fact.” United States
v. Matta, 777 F.3d 116, 124 (2d Cir. 2015) (quotation marks omitted).
First, McIntosh challenges the three-level bodily-injury enhancement
applied to Count Five 3 under § 2B3.1(b)(3)(D) of the Guidelines. 4 That section
applies when a victim sustains an injury more severe than a mere “Bodily Injury”
but less severe than a “Serious Bodily Injury.” U.S.S.G. § 2B3.1(b)(3)(A), (B).
“Bodily injury” is a “significant injury; e.g., an injury that is painful and obvious,
or is of a type for which medical attention ordinarily would be sought,” whereas
“[s]erious bodily injury” is an “injury involving extreme physical pain or the
protracted impairment of a [bodily] function . . . or requiring [significant]
medical intervention.” Id. § 1B1.1 cmt. nn.1(B), (M) (quotation marks omitted).
The trial record and Presentence Investigation Report (“PSR”) support the
District Court’s finding that McIntosh repeatedly used a stun gun on a bound
and gagged victim’s neck and genitals. The District Court did not clearly err in
3 Because the Indictment was renumbered for trial, we refer to the revised count numbers. 4 We apply the 2021 Guidelines Manual, as the Probation Office did in preparing the
Supplemental Presentence Report. 4 therefore also finding that the victim, who experienced multiple, lengthy shocks
to his body, sustained an injury within the meaning of § 2B3.1(b)(3)(D).
Second, McIntosh challenges the four-level leadership enhancement under
§ 3B1.1(a) that the District Court applied to Counts Five, Seven, and Nine
through Eleven. Although McIntosh does not dispute that he held a leadership
role, he argues that the charged conduct neither involved five or more
participants nor was otherwise extensive. See id. § 3B1.1(a). “The determination
of a defendant’s role in the offense is to be made on the basis of all conduct
within the scope of §1B1.3 (Relevant Conduct), . . . and not solely on the basis of
elements and acts cited in the count of conviction.” Id. ch. 3, pt. B intro. cmt. The
District Court thus properly relied on the broader robbery scheme in which
McIntosh participated rather than limiting its analysis to the counts of
conviction. See United States v. Greer, 285 F.3d 158, 181–82 (2d Cir. 2002). The
PSR, which the District Court adopted without objection, fully supports the
District Court’s finding that McIntosh led a robbery crew consisting of at least six
participants as part of the broader robbery scheme. We accordingly find no error
5 with respect to the challenged four-offense-level increase to these counts under
§ 3B1.1(a). 5
Third, McIntosh argues that the District Court improperly increased the
sentence imposed on his non-§ 924(c) counts of conviction from 36 months at the
original sentencing to 96 months at resentencing without a reasoned explanation.
We disagree. At resentencing, the District Court explained the recalculated (and
increased) Guidelines range of 262 to 327 months for the non-§ 924(c) counts and
noted that the counts of conviction differed from those considered at the original
sentencing, including the reinstatement of a conviction that carried the highest
Guidelines range. The District Court also considered the § 3553(a) factors, such
as the seriousness of McIntosh’s robbery conduct and evidence of his post-
sentencing rehabilitation. See United States v. Kimber, 777 F.3d 553, 565–66 (2d
Cir. 2015).
5McIntosh also challenges the application of a four-level leadership increase to the offense level for his convictions under 18 U.S.C. § 922(g) for possession of a firearm by a convicted felon. He argues that “the felon-in-possession statute relates solely to individual conduct” and that the applicable Guidelines provision, § 2K2.1, “makes no reference to role enhancements.” Appellant Br. 26. McIntosh concedes, however, that his Guidelines range was not affected by this increase. Any error is therefore harmless, and we decline to reach this argument. 6 We accordingly reject McIntosh’s challenges to the procedural
reasonableness of his sentence.
II. Substantive Reasonableness
We also reject McIntosh’s argument that his 300-month, below-Guidelines
sentence is substantively unreasonable. “[O]ur review of a sentence for
substantive reasonableness is particularly deferential, and we will set aside only
those sentences that are so shockingly high, shockingly low, or otherwise
unsupportable as a matter of law that allowing them to stand would damage the
administration of justice.” United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020)
(quotation marks omitted). In imposing a below-Guidelines sentence, the
District Court carefully considered the nature and severity of McIntosh’s offense
conduct, which included multiple violent robberies, as well as any mitigating
factors in McIntosh’s favor. See United States v. Broxmeyer, 699 F.3d 265, 289 (2d
Cir. 2012). On review, we cannot say that McIntosh’s sentence is “unsupportable
as a matter of law,” Muzio, 966 F.3d at 64 (quotation marks omitted), or otherwise
substantively unreasonable.
7 III. Foreclosed Arguments
McIntosh argues that § 922(g)(1) is unconstitutional in light of New York
State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). We disagree. As
McIntosh acknowledges, his “constitutional challenge is foreclosed by our recent
decision in Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025), which reaffirmed the
constitutionality of § 922(g)(1) post-Bruen.” United States v. Delgado, 149 F.4th
244, 247 (2d Cir. 2025), cert. denied, No. 25-6732, 2026 WL 642823 (U.S. Mar. 9,
2026). He is therefore entitled to no relief on this basis.
McIntosh separately argues that, in light of United States v. Taylor, 596 U.S.
845 (2022), his § 924(c) convictions must be vacated because Hobbs Act robbery
does not constitute a “crime of violence.” McIntosh concedes that his argument
is foreclosed by United States v. Barrett, 102 F.4th 60 (2d Cir. 2024), rev’d in part on
other grounds, 146 S. Ct. 482 (2026). We accordingly affirm McIntosh’s convictions
under § 924(c).
8 We have considered McIntosh’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court