702 F. App'x 81
3rd Cir.2017Background
- ATF, via a confidential informant (CI), mounted a reverse-sting in which an undercover ATF agent (Edwards) posed as a drug courier describing a stash house with 8–9 bricks of cocaine; McLean repeatedly expressed readiness to rob it and recruited others.
- Meetings and recorded calls occurred between June and August 2013; McLean discussed plans to tie up or kill guards and brought loaded firearms to the final meetup.
- McLean and co-defendant Leroy Winston were arrested at the planned meet; two loaded firearms manufactured outside Pennsylvania were recovered.
- A federal grand jury indicted McLean for Hobbs Act robbery conspiracy/attempt (18 U.S.C. § 1951), drug conspiracy/attempt (21 U.S.C. §§ 846, 841), carrying a firearm during a crime of violence/drug-trafficking crime (18 U.S.C. § 924(c)), and felon-in-possession (18 U.S.C. § 922(g), 924(e)).
- At trial Winston testified against McLean pursuant to a cooperation plea; the jury convicted McLean on all counts, and the district court sentenced him to 19 years; McLean appealed.
Issues
| Issue | McLean's Argument | Government's Position | Held |
|---|---|---|---|
| Whether district court erred by denying entrapment instruction | ATF induced McLean and implanted the criminal design; entrapment evidence warranted jury instruction | Government merely offered an opportunity; McLean was predisposed | No error — entrapment instruction not warranted; insufficient evidence of inducement and McLean showed predisposition |
| Whether Hobbs Act convictions lack jurisdictional interstate-commerce nexus | Reverse sting was fictitious so conduct could not affect interstate commerce; NFIB limits Commerce Clause reach | Jurisdictional element satisfied by contemplated effect on interstate market for cocaine; precedent permits inchoate/fictitious stings | Court affirmed jurisdiction — contemplated theft of out-of-state cocaine sufficed to affect interstate commerce |
| Whether § 924(c) conviction must be vacated because Hobbs Act robbery is not a "crime of violence" | Hobbs Act robbery and conspiracy are not crimes of violence for § 924(c) purposes | Hobbs Act robbery/conspiracy here involved actual/threatened force tied to firearms, qualifying as crimes of violence | § 924(c) conviction stands — contemporaneous findings show use/threatened use of force via firearm, satisfying § 924(c)(3)(A) |
| Sufficiency of evidence generally | (Overlaps above) | (Overlaps above) | Guilty verdicts affirmed as reasonable jurors could find elements beyond reasonable doubt |
Key Cases Cited
- United States v. Dennis, 826 F.3d 683 (3d Cir. 2016) (reversed for entrapment where government inducement and lack of predisposition were shown)
- United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982) (Hobbs Act jurisdiction satisfied for conspiracies arising from fictitious government sting)
- United States v. Robinson, 844 F.3d 137 (3d Cir. 2016) (Hobbs Act robbery that involved threats/uses of a firearm qualifies as a crime of violence for § 924(c))
- National Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (limits on Commerce Clause for compelled commercial activity; court distinguishes its holding from Hobbs Act reach)
- Taylor v. United States, 136 S. Ct. 2074 (2016) (theft of drugs or drug proceeds satisfies Hobbs Act commerce element)