Case Information
*1 DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge
Appeal from the UNITED STATES OF AMERICA, United States District Court
Plaintiff-Appellee for the Western District of Wisconsin. v . No. 3:15CR00067-001 RAEQUON ALLEN, William M. Conley,
Defendant-Appellant . Judge .
O R D E R
Raequon Allen pleaded guilty to robbery in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a), and to brandishing a gun during that crime in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). The district judge sentenced Allen to 36 months in prison for the Hobbs
Act violation plus a consecutive, statutory minimum term of 84 months for the firearm
offense. Allen challenges his firearm conviction, term of imprisonment, and various
conditions of his supervised release. We affirm Allen’s firearm conviction because his
conviction for Hobbs Act robbery is a valid predicate for his § 924(c) conviction. We
vacate the sentence and remand to allow the judge to exercise his discretion, consistent
with
Dean v. United States
,
Over three days in January and February of 2015, Allen robbed three gas stations near Madison, Wisconsin, by pointing a gun at the cashiers and demanding cash and cigarettes. He was arrested a few days later by local police and charged with three counts of Hobbs Act robbery, 18 U.S.C. § 1951(a), and two counts of brandishing a firearm in furtherance of a crime of violence, id . § 924(c)(1)(A)(ii).
After Allen fired his first appointed attorney and twice attempted to fire his second attorney, he eventually pleaded guilty to one count of Hobbs Act robbery and one count of brandishing a firearm in furtherance of the robbery in exchange for the government’s agreement to dismiss the remaining three counts of the indictment and to recommend a sentence reduction for Allen’s acceptance of responsibility.
The judge calculated a guidelines imprisonment range of 51 to 63 months for the
robbery conviction and a statutory minimum of 84 months for the firearm conviction.
The government argued that the court was constrained by
United States v. Roberson
On appeal Allen first contends that a violation of the Hobbs Act is not
categorically a “crime of violence” that serves as a predicate offense to support a § 924(c)
conviction. The government argues that Allen waived this argument by pleading guilty
unconditionally because “a defendant who pleads guilty waives his right to appeal all
non-jurisdictional issues.”
United States v. Phillips
,
Allen indeed waived this challenge, and in any event, his argument fails on the
merits. After Allen filed his opening brief, this circuit “join[ed] the unbroken consensus
of other circuits” and concluded that a Hobbs Act robbery
is
a crime of violence under
the elements clause of § 924(c).
United States v. Anglin
,
Allen next maintains (and the government agrees) that he must be resentenced in
light of
Dean
because the district judge misapprehended his discretion to consider the
mandatory seven-year sentence for the § 924(c) conviction when imposing punishment
for the predicate robbery. Following
Roberson
, the judge recognized that he could not
consider the seven-year sentence as “mitigating” and must review each conviction
“distinctly.”
Roberson
is no longer good law, however, after the Court in
Dean
held that
“[n]othing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a)
and the related provisions to consider a sentence imposed under § 924(c) when
calculating a just sentence for the predicate count.”
Finally, Allen attacks his three-year term of supervised release, but he can seek a
clarification or modification at his resentencing upon remand and to the extent
authorized by 18 U.S.C. § 3583(e)(2).
See United States v. Neal
,
Accordingly, we AFFIRM the convictions. We VACATE the sentence and REMAND to the district court for further proceedings consistent with this order.