United States v. Carter, 19 F.4th 520

Background

On Jan. 26, 2019, Diovanni Carter and three associates robbed a T‑Mobile in Brockton, MA; they stole electronics and cash and fled in a rented getaway car tracked by a GPS‑equipped phone.
During a police chase, Carter (allegedly) handed a gun to an associate and instructed associates to shoot at pursuing officers; two associates fired at the cruiser.
One associate (Dennis Martin) cooperated and testified against Carter; Carter’s brother Darius made a recorded jailhouse call to his parents that contained statements implicating Carter.
A grand jury charged Carter with conspiracy (Hobbs Act), robbery (Hobbs Act), a § 924(c) firearm offense (use/brandish/discharge), and two felon‑in‑possession counts; the jury convicted on Counts 1–3 and acquitted on the felon‑possession counts.
The district court admitted portions of Darius’s call, instructed the jury on aiding‑and‑abetting and Pinkerton liability for § 924(c), and applied a six‑level official‑victim adjustment at sentencing; Carter was sentenced to 150 months on Counts 1–2 and 120 months consecutive on Count 3.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of Darius’s jailhouse call (hearsay)	The defense waived hearsay objection at the pretrial conference; in any event any error was harmless.	The recorded statements were hearsay (including implied assertions) and inadmissible.	Waiver: defense counsel conceded “it’s not hearsay”; appellate hearsay objection waived. Even if error, admission harmless beyond a reasonable doubt.
Jury instructions on § 924(c) vicarious liability (aiding‑and‑abetting and Pinkerton)	Instructions correctly explained intent/advance knowledge for aiding‑and‑abetting and reasonable foreseeability for Pinkerton; any minor wording slips were immaterial.	Instructions were ambiguous/misleading as to advance knowledge for aiding‑and‑abetting, foreseeability for Pinkerton, and used confusing wording (disjunctive “or,” singular “the crime,” and one verb misstatement).	Reviewed for plain error; no clear or prejudicial error. Instructions, read as a whole, adequately conveyed mens rea and doctrines; a single verb slip was harmless.
Use of §3A1.2(c)(1) official‑victim adjustment despite Note 4 to §2K2.4	Note 4 bars only Chapter Two "specific offense characteristics"; it does not prohibit Chapter Three adjustments like the official‑victim increase.	Note 4 forbids applying any weapon‑related adjustment to the underlying offense when sentencing under §2K2.4.	De novo review: "specific offense characteristic" is a Chapter Two term. Note 4 does not bar the Chapter Three official‑victim adjustment; district court decision affirmed.

Key Cases Cited

United States v. Walker, 665 F.3d 212 (1st Cir. 2011) (standard for reciting facts in light most favorable to verdict)
United States v. Murphy, 193 F.3d 1 (1st Cir. 1999) (first sentences of jail call treated as non‑hearsay)
United States v. Diaz, 597 F.3d 56 (1st Cir. 2010) (discussion of implied assertions as hearsay)
United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) (harmless‑error analysis for improper statements)
Rosemond v. United States, 572 U.S. 65 (2014) (mens rea for aider‑and‑abettor: intent that the crime be committed)
United States v. López‑Soto, 960 F.3d 1 (1st Cir. 2020) (aider knowledge "to a practical certainty" for firearm brandishing)
Dean v. United States, 556 U.S. 568 (2009) (for principals, § 924(c) 10‑year minimum applies whether discharge is intentional or accidental)
United States v. Vázquez‑Castro, 640 F.3d 19 (1st Cir. 2011) (Pinkerton liability requires reasonable foreseeability)
Stinson v. United States, 508 U.S. 36 (1993) (Sentencing Guideline application notes ordinarily binding)
United States v. Fiume, 708 F.3d 59 (1st Cir. 2013) (same underlying facts may support multiple, discrete sentencing adjustments)
United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014) (holding Note 4 does not bar Chapter Three official‑victim adjustment)