456 F. App'x 434
5th Cir.2012Background
- Five defendants and two non-indicted co-conspirators conducted a bank-robbery enterprise in the Dallas–Fort Worth area, with varying roles and multiple robberies from January–June 2008.
- The group’s activities culminated in a substantial conspiracy involving nine conspiracy counts, two attempted-robbery counts, and five bank-robbery/abetting counts, plus numerous § 924(c) firearm charges.
- The district court sentenced the appellants to lengthy terms; the court of appeals reversed certain counts but affirmed most convictions.
- The key issue was whether there was one overarching conspiracy or multiple conspiracies; the government argued multiple conspiracies existed, the appellants contended a single conspiracy covered all robberies.
- The court held there were multiple conspiracies and also found insufficiency of evidence for the two attempted-robbery counts and the related § 924(c) counts; Hewitt’s sentencing challenge was rejected; the case was remanded for resentencing.
- The opinion thus affirms most convictions while vacating Counts Three, Four, Eighteen, and Nineteen and directing resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conspiracy scope: single vs multiple conspiracies | Duffey et al. assert one umbrella conspiracy. | Appellants contend a single conspiracy tied all robberies. | Multiple conspiracies proven; Marable factors support distinct conspiracies. |
| Sufficiency of attempted-robbery evidence | Government argues attempt elements satisfied by plan and conduct. | No force/intimidation shown; attempted-robbery elements not met. | Insufficient evidence for attempted-robbery counts; vacated. |
| § 924(c)(1) predicate failure | § 924(c) charges tied to attempted-robbery predicates. | Firearm charges premised on valid predicate offenses. | Vacate § 924(c)(1) convictions tied to the invalid attempted-robbery counts. |
| Hewitt sentencing challenge | PSR overstates leadership role and conspiracy counts. | Challenged enhancements improper. | Hewitt’s challenge rejected; no merit found. |
| Remand for resentencing | N/A | N/A | Convictions vacated on the four counts; remand for resentencing consistent with opinion. |
Key Cases Cited
- United States v. Kalish, 690 F.2d 1144 (5th Cir. 1982) (marshalling Marable analysis for multiple conspiracy determinations)
- United States v. Elam, 678 F.2d 1234 (5th Cir. 1982) (courts may determine conspiracy scope by circumstantial evidence)
- United States v. Marable, 578 F.2d 151 (5th Cir. 1978) (five-factor Marable test for single vs multiple conspiracies)
- United States v. Greer, 939 F.2d 1076 (5th Cir. 1991) (geographic and episodic nature supports multiple conspiracies)
- United States v. Bellew, 369 F.3d 450 (5th Cir. 2004) (first-paragraph elements require force/intimidation for attempted robbery)