United States v. Antron Latroy Langston
Case Information
*1 Before TJOFLAT, HULL and JILL PRYOR, Circuit Judges.
PER CURIAM:
After pleading guilty, Antron Langston appeals his total 117-month sentence
for conspiracy to commit Hobbs Act robbery, in violation of
I. BACKGROUND FACTS
A. Offense Conduct
The factual proffer supporting Langston’s guilty plea and the Presentence Investigation Report (“PSI”) contain these undisputed facts.
Langston and his codefendant, Dalton Armster, entered the One Stop Mini Mart, approached the counter, and asked for a pack of cigars. Armster clipped a magazine into a machine firearm, pointed the firearm at the store clerk, and ordered the clerk to givе him all the money in the store’s cash register. Simultaneously, Langston jumped over the counter to get to the cash register. The store clerk immediately opened the register and put up his hands. Langston took approximately $5,000 in cash from the register and a Glock .22 caliber firearm located underneath a shelf by the register. The store’s video security cameras captured the robbery.
Following the robbery, the store clerk called 911 and informed law enforcement officers that he recognized the assailants as previous patrons of the store, but did not know the assailants by name. Law enforcement received anonymous tips identifying the two assailants as Armster and Langston. Ultimately, the store clerk identified Armster in a photo lineup as the assailant who held the firearm and identified Langston in a photo lineup as the assailant who jumped over the counter and took the money from the register. Armster was arrested and admitted that he and Langston had robbed the Mini Mart. Langston was arrested approximately one month later.
B. Indictment and Guilty Plea
A federal grand jury indicted Langston on charges of conspiracy to commit
Hobbs Act robbery, in violation of
Pursuаnt to a written plea agreement, Langston pled guilty to Counts 1 and 3. He also executed a factual proffer containing the offense conduct outlined above.
Before accepting Langston’s guilty plea, the district court conducted a colloquy and reviewed with Langston the elements of the crimes to which he was pleading guilty. With regard to Count 1, the district court informed Langston that he was pleading guilty tо (1) agreeing to commit a Hobbs Act robbery, which would involve “acquiring someone else’s property against the person’s will using actual threats, force or violence or causing the victim to fear harm”; (2) knowing of the plan to commit the robbery; and (3) voluntarily participating in and helping to achieve the goal of committing the robbery. Langston affirmed that he understood the elements of Count 1.
With regard to Count 3, the district court informed Langston that he was pleading guilty to committing the robbery offense charged in Count 1, which was characterized as a crime of violence, and to brandishing a firearm in furtherance of that crime. Langston affirmed that he understood the elements of Count 3.
The district court explained to Langston that by pleading guilty, he was waiving his right to have the government establish his guilt beyond a reasonable doubt by proving еach and every element of the crimes he was charged with committing, and Langston affirmed that he understood that waiver. Langston admitted that the facts in the proffer were true and that the government could prove them beyond a reasonable doubt. After reviewing the provisions of the written plea agreement with Langston, the district court accepted his guilty pleas and adjudicated him guilty on Counts 1 and 3.
C. PSI
In addition to the facts recounted above, the PSI indicated that both Armster and Langston were equally culpable in committing the crimes.
As to Count 1, the PSI recommended: (1) a base offense level of 20, pursuant to U.S.S.G. § 2B3.1(a); a one-level increase in the offense level, pursuant to U.S.S.G. § 2B3.1(b)(6), because a firearm was taken during the offense; and (3) a three-level reduction, pursuant to U.S.S.G. §§ 3E1.1(a) and (b), for acceptance of responsibility. This resulted in a total adjusted offense level of 18 for Count 1.
The PSI assigned Langston four criminal history points and calculated a criminal history category of III because he had 2004 Florida convictions for grand theft and resisting an officer without violence and 2012 Florida convictions for burglary, arson, and criminal mischief. The PSI included several prior adult convictions and juvenile adjudications for which no criminal histоry points were scored, including convictions for resisting an officer with violence, trespass to a structure or conveyance, and cocaine possession in 1999; loitering in 2001; cocaine possession in 2002; and driving without a valid driver’s license in 2008. The PSI also described eight other instances of juvenile and adult criminal conduct for which Langston was not prosecuted, including possession of a concealed firearm by a minor, armed robbery, and battery.
With a total offense level of 18 and a criminal history category of III, the PSI recommended an advisory guidelines range for Count 1 of 33 to 41 months’ imprisonment. The statutory maximum for Count 1 was 20 years’ imprisonment.
As to Count 3, the PSI stated that, pursuant to
D. Sentencing Hearing
At sentencing, Langston did not object to the factual allegations or guidelines calculations in the PSI. The district court adopted the PSI in its entirety and concluded that the advisory guidelines range for Count 1 was 33 to 41 months and that Count 3 carried a mandatory minimum 84-month sentence to be served consecutively to any other sentence imposed.
Langston requested a downward variance on Count 1, arguing that Armster, Langston’s codefendant who had pled guilty to the same charges, had received a 100-month sentence and that the district court had granted Armster a downward variance to reach that sentence. Langston contended that the district court should impose a sentence that was equal to or less than Armster’s sentence to avoid an unwarranted sentencing disparity and beсause Armster had planned the robbery, recruited and directed Langston, and went into the store armed and pointed his gun at the store clerk and thus was more culpable. Langston also argued that he was under the influence of drugs and alcohol when Armster recruited him, had never adequately been treated for his substance abuse problems, and was essentially homeless at the time he committed the offense. Langston asked the district court to vary downward 17 months to a 100-month total sentence.
The government recommended a low-end guidelines sentence on Count 1 and argued that, because of Langston’s criminal history category of III, it was appropriate for him to receive a higher sentence than Armster, who had a criminal history category of II. The government noted that, according to both the video of thе robbery and the PSI, both Langston and Armster played equal roles in the offense and were equally culpable.
The district court stated that it had considered the statements of all parties, the PSI, and the statutory factors in § 3553(a). The district court acknowledged Langston’s mitigating arguments, his supportive family, and desire to participate in a substance abuse program. However, the district court expressed concern about Langston’s past criminal conduct, including three instances of unprosecuted criminal conduct listed in the PSI: possession of a concealed weapon at age 14, armed robbery, and battery. Addressing the differences between Armster and Langston, the district court noted that it was focusing not on the difference between their respective criminal history categories, but on “the content and nature of the past transgressions.” The district court concluded that the low-end guidelines sentence recommended by the government was appropriate. The district court sentenced Langston to 33 months’ imprisonment as to Count 1 and a consecutive 84 months as to Count 3, for a total 117-month sentence. Langston did not object to the district court’s findings of fact or the manner in which the sentence was pronouncеd.
II. DISCUSSION
A. Substantive Reasonableness of 33-month Sentence on Count 1
The substantive reasonableness of a sentence—whether inside or outside the
applicable guidelines range—is subject to a deferential abuse-of-discretion
standard of review. Gall v. United States,
Langston has not met his burden of establishing that his sentence was
unreasonable in light of the record and the
Langston argues that the 17-month disparity between his sentence and that
of his codefendant Armster makes his sentence unreasonable. But, Langston has
not shown that the disparity between his sentence and the sentence the district
court imposed on Armster was unwarranted because, although they pled guilty to
to promote respect for the law, and to provide just punishment for the offense; (3) the nеed for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims.
identical charges, they did not have “similar records” and thus were not similarly
situated defendants. See United States v. Docampo,
Langston’s complaint that the district court primarily relied upon prior
criminal behavior that went unprosecuted likewise is without merit because the
sentencing court was entitled to consider those acts as relevant to Langston’s
background and character in imposing its sentence. See United Statеs v. Tome,
In any event, even if we assumed arguendo that the 17-month disparity
between Langston and Armster was “unwarranted,” this would not render
Langston’s sentence substantively unreasonable because he has failed to
demonstrate that the alleged disparity outweighed the other
Finally, the district court’s 33-month sentence on Count 1 represented the
lowest sentence under the applicable guidelines range of 33 to 41 months, which
this Court would ordinarily expect to be reasonable. See Unitеd States v. Hunt,
Based on the foregoing, Langston has not shown that his 33-month sentence on Count 1 was substantively unreasonable.
B. Consecutive Sentence on Count 3
Under § 924(c)(1)(A), if the defendant used or carried a firearm during and
in relation to a crime of violence or drug trafficking crime, or possessed a firearm
in furtherаnce of such crimes, the district court must impose a separate consecutive
sentence. And, if, as here, the defendant brandished the firearm, the consecutive
sentence is “not less than 7 years.”
For purposes of
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
A separate but similar sentencing provision, the Armed Career Criminal Act (“ACCA”), defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
In 2015, before Langston was sentenced, the Supreme Court in Johnson v.
United States held that the residual clause of the ACCA is unconstitutionally
vague.
Here, Count 3 in the indictment, to which Langston pled guilty, expressly charged, inter alia, that the crime of violence was the Hobbs Act conspiracy in Count 1 and that the firearm was brandished during the crime of violence. As noted earlier, Langston was charged with aiding and abetting the brandishing of the firearm. Further, during the plea colloquy, Langston acknowledged that the pertinent crime of violence was the Hobbs Act conspiracy charged in Count 1.
Now, for the first time on appeal, Langston argues that the district court
erred in sentencing him to a consecutive 84-month term on Count 3 because, in
light of Johnson, conspiracy to commit Hobbs Act robbery cannot serve as a
predicate “crime of violence” under
While we ordinarily review de novo whethеr a specific offense is a crime of
violence under
Here, Count 3 of the indictment alleged that Langston used and carried a
firearm “during and in relation to a crime of violence” and possessed the firearm
“in furtherance of a crime of violence” as charged in Count 1. Langston then
acknowledged, in both the factual proffer and during the plea colloquy conducted
by the district court, that the government could prove each element of Count 3
beyond a reasonable doubt. As the distriсt court explained and Langston
acknowledged, those elements were (1) that he committed conspiracy to commit
Hobbs Act robbery, a crime of violence, and (2) that he brandished a firearm in
furtherance of that crime of violence. Langston’s knowing, unconditional, and
voluntary plea constituted an admission as to every element of Count 3. See
McCarthy v. United States,
However, we need not decide that waiver issue because Langston cannot
show that the alleged error was plain. The district court did not indicate under
which
Neither the Supreme Court nor this Court has extended Johnson’s
Likewise, neither the Supreme Court nor this Court has concluded that
conspiracy to commit Hobbs Act robbery cannot categorically qualify as a crime of
violence under the use-of-force clause. See id. at 979 & n.1. Moreover, this Court
has concluded that a conviction for the substantive offense of Hobbs Act robbery
qualifies as a crime of violence under the use-of-force clause after Johnson. See In
re Saint Fleur,
Given that there is no direct precedent from this Court or the Supreme Court
directly resolving the issue of whether conspiracy to commit that substantive
Hobbs Act robbery qualifies a crime of violence under either clause, any alleged
error cannot be plain. See Hoffman,
For these reasons, we find no reversible error in the district court’s decision
to treat Langston’s Hobbs Act robbery conspiracy, charged in Count 1, as a crime
of violence under
AFFIRMED.
Notes
[1] Langston does not argue that his sentence is procedurally unreasonable.
[2] The