United States v. Darius McKeever
2016 U.S. App. LEXIS 10517
| D.C. Cir. | 2016Background
- In April 2013 undercover Metropolitan Police officers ran a reverse-sting: they recruited Darius McKeever, Darnell Wallace, Trevor Hopkins, and Kenneth Benny-Dean to plan a liquor-store robbery; officers provided firearms during planning and none of the defendants actually carried their own weapons. Benny-Dean was acquitted at trial; the three appellants pled guilty to a Hobbs Act conspiracy.
- Each appellant was sentenced (Wallace 65 months, McKeever 84 months, Hopkins 80 months); the district court applied U.S.S.G. § 2X1.1 (conspiracy) using § 2B3.1 (robbery) adjustments, including a five-level firearm enhancement (§ 2B3.1(b)(2)(C)).
- Appellants challenged the firearm enhancement, argued the police’s introduction of guns justified a downward variance as sentencing entrapment, and Hopkins raised additional claims (jurisdiction, Rule 11/factual basis, due process, sentencing calculation, and ineffective assistance).
- The D.C. Circuit affirmed application of the five-level firearm enhancement, holding § 2X1.1 governs conspiracies and actual possession is not required where firearm possession/brandishing was intended or reasonably foreseeable.
- The court vacated the sentences and remanded for resentencing limited to addressing whether the police-supplied firearms constituted sentencing entrapment, because the district court’s treatment of that mitigation argument was unclear.
Issues
| Issue | Plaintiff's Argument (Appellants) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Applicability of five-level firearm enhancement ("Gun Bump") under Guidelines | Gun bump applies only to actual possession under § 2B3.1; conspiracy sentencing should not import intended-conduct enhancements via § 2X1.1 | § 1B1.2 and § 2X1.1 direct courts to apply conspiracy guideline; § 2X1.1(a) permits adjustments for intended conduct established with reasonable certainty | Affirmed: § 2X1.1 governs Hobbs Act conspiracies here; actual possession not required when firearm possession was intended or reasonably foreseeable, so enhancement proper |
| Sentencing entrapment (police supplied guns) | Police introduced firearms to manufacture an enhancement; district court failed to consider sentencing entrapment/§ 3553(a) mitigation | Government concedes Hopkins raised mitigation and that discussion should have occurred; disputes whether Wallace and McKeever preserved the issue but acknowledges judge was aware | Vacated and remanded for resentencing: district court must address sentencing-entrapment mitigation in first instance because the record is unclear |
| Manufactured federal jurisdiction (Hobbs Act interstate-commerce nexus) (Hopkins) | Undercover operation created the interstate-commerce element (sham store), so federal jurisdiction was manufactured and invalid | Defendant voluntarily agreed to rob a store that was engaged in interstate commerce; courts reject manufactured-jurisdiction claims when defendant’s affirmative acts link to the jurisdictional element | Rejected: Hopkins freely participated in plan to rob a commercial store engaged in interstate commerce, so Hobbs Act jurisdiction valid |
| Validity of Hopkins’ guilty plea and Rule 11 colloquy / factual basis | Plea lacked factual basis/defendant not informed of interstate-commerce element or that agreement must be with co-conspirators rather than just officers | Plea colloquy and record established Hopkins agreed to rob a store engaged in interstate commerce; Rule 11 does not require spelling out every element if totality shows understanding | Rejected: factual basis and Rule 11 colloquy were adequate; no plain error |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (Sentencing Guidelines rendered advisory)
- Gall v. United States, 552 U.S. 38 (reasonableness review of sentences)
- United States v. Saani, 650 F.3d 761 (D.C. Cir.) (remand where sentencing record unclear)
- United States v. Bigley, 786 F.3d 11 (D.C. Cir.) (district court must consider nonfrivolous mitigation arguments including sentencing entrapment)
- United States v. Walls, 70 F.3d 1323 (D.C. Cir.) (sentencing-entrapment doctrine and predisposition focus)
- United States v. Russell, 411 U.S. 423 (law enforcement conduct must be extreme to violate due process)
- Stinson v. United States, 508 U.S. 36 (Guidelines commentary authoritative when consistent with text)
- United States v. Locke, 664 F.3d 353 (D.C. Cir.) (procedural reasonableness and obligation to consider § 3553(a) factors)