UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DARRELL E. GILLESPIE, Defendant - Appellant.
No. 21-4146
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 8, 2022
PUBLISHED. Argued: January 25, 2022. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Frank W. Volk, District Judge. (2:13-cr-00091-4)
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Heytens joined.
ARGUED: John Hampton Tinney, Jr., HENDRICKSON & LONG, PLLC, Charleston, West Virginia, for Appellant. Monica D. Coleman, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Lisa G. Johnston, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
A jury convicted Darrell Gillespie of various offenses stemming from a series оf armed home-invasion robberies. On appeal, he challenges one of his convictions for carrying a firearm during a crime of violence in violation of
I.
A.
Darrell Gillespie and his friends Robert Barcliff, Keith Glenn, and Brandon Davis decided to steal guns, drugs, and money from drug dealers because they were less likely to report the crimes to the police. The conspirators understood they would need to use guns to successfully rob drug dealers. The robberies took place from 2011 to 2012 and stretched from Pennsylvania to Tennessee, although they were concentrated in West Virginia and Virginia.
Gillespie was present during the group‘s first robbery, which occurred in September 2011, and during which Barcliff used a gun to subdue the victim. The conspirators continued to engage in violent robberies throughout the winter of 2011. The robbery that underlies the
After hearing yelling, Barcliff and Glenn entered the apartment to find Duеs held at gunpoint and cradling his 8-month-old child. While searching the residence, the robbers discovered a second child in a bedroom, whom Barcliff tried to quiet. After ransacking the apartment, the conspirators located an ounce or two of marijuana and stole several hundred dollars from Dues’ wallet. Adding insult to injury, Davis told Dues to quit selling drugs with his children in the residence and not to leave his door unlocked.
After several months of additional robberies, Gillespie, Glenn, and Davis were pulled over by West Virginia poliсe on March 23, 2012. When officers searched the car, they discovered a victim‘s wallet, pepper spray, a mask, and several guns stolen by the gang the day before, including a fully automatic AK-47 replica.
B.
Gillespie and the other members of the gang were indicted in the Southern District of West Virginia. Gillespie and a co-defendant opted to go to trial under a fourteen-count
As relevant to this appeal, Gillespie was charged with robbery affecting interstate commerce (Hobbs Act robbery) in violation of
The indictment referenced two distinct theories of liability for the
After a two-week trial, the jury was presented with instructions tracking the government‘s twin theories of
The “second basis” for
C.
After Gillespie‘s trial, he moved for acquittal on the
At Gillespie‘s sentencing hearing, the district court adopted the Presentence Report, which established an Offense Level of 32, a Criminal History Category of I, and a Guidelines range of 121-151 months. Gillespie sought a downward variance and argued he was receiving an unfairly longer sentence compared to his co-conspirators because he had opted to exercise his right to trial, rather than pleading guilty and cooperating with the government. The district court rejected this argument and explained that Gillespie was not similarly situated to his co-conspirators because their more lenient sentences were driven by their acceptance of responsibility under
II.
Gillespie‘s primary contention on appeal is that his
Under the second factor, an error is plain if, “at the time of appellate consideration, the settled law of the Supreme Court or this circuit establishes that an error has occurred.”
But for an error to prejudice a defendant sufficiently to “affеct substantial rights,” “[i]t must have affected the outcome of the district court proceedings.” Ramirez-Castillo, 748 F.3d at 215 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). In the context of a
Under plain error review, Gillespie‘s claim fails because he cannot “demonstrate that the erroneous instruction given resulted in his conviction,” and therefore cannot establish prejudice. Hare, 820 F.3d at 105. He correctly observes that a conviction for personally carrying a firearm during a Hobbs Act conspiracy is no longer valid. But this is of no moment for Gillespie because the special verdict form affirmatively demonstrates his conviction was based on a valid Pinkerton theory under which he is liable for his co-conspirator‘s use of a firearm during the Dues robbery, not a direct Hobbs Act conspiracy predicate.
The text of
Gillespie argues that because the application of Pinkerton relies on the existence of a conspiracy (in his case, a Hobbs Act conspiracy) and because Hobbs Act conspiracy is not a crime of violence, he was thereforе convicted based on an improper
It is well-established that defendants may be held liable for the substantive offenses of their co-conspirators. Pinkerton v. United States, 328 U.S. 640 (1946). Simms and Davis
Pinkerton‘s viability as a vicarious theory of
This court previously addressed the issue of Pinkerton‘s continued applicability to
In United States v. Woods, the Sixth Circuit addressed the same confusion between Pinkerton as a theory of vicarious liability and conspiracy as a predicate crime of violence and came to the same conclusion: “a theory of Pinkerton liability is still permissible as long as the underlying predicate offenses qualify as crimes of violence under the
B.
It was precisely this still-valid theory of Pinkerton liability that the jury embraced when finding Gillespie guilty of the challenged
The jury instructions differentiated between the “first basis” for the
Under this second basis, a member of a conspiracy who commits another crime during the existence or life of a conspiracy and commits this other crime in order to further or somehow advance the goals or objectives of the conspiracy, may be found by you to be acting as the agent of the other members of the conspiracy. The illegal actions of this person in committing this other crime may be attributed to other individuals who are then members of the conspiracy.
Likewise, the special verdict form made clear that the conviction was based on Pinkerton liability, not Hobbs Act conspiracy as a stand-alone predicate offense. The verdict form demonstrates that the jury carefully distinguished between the two theories. In Question 10, the jury rejected the theory that Gillespie personally carried a firearm during the Hobbs Act robbery of Theodore Dues. But in Questiоn 11, the jury found Gillespie guilty of the
The theory foreclosed by Simms is one in which a defendant personally carries a firearm during a Hobbs Act conspiracy as the predicate offense. See Howell, 2021 WL 3163879, at *4 (“The invalid theory . . . is that he committed the
The evidence at trial overwhelmingly supported this Pinkerton theory and demonstrated that Gillespie repeatedly participated in violent armed robberies of drug
It is also perfectly clear that Gillespie knew his co-conspirators would be engaged in a violent robbery while armed with firearms. Any failure to instruct that firearm use must be reasonably foreseeable for Pinkerton liability to attach therefore cannot justify revеrsal. After all, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). First, trial testimony established it was understood by the gang that guns would be needed to successfully rob drug dealers. Second, Gillespie had personally carried a gun and witnessed gun use by his compatriots during previous robberies. And finally, all witnesses agreed that at least some members of the conspiracy were visibly carrying guns during the Dues robbery. Any instructional error on foreseeability was therefore harmless. See United States v. Blackman, 746 F.3d 137, 141–42 (4th Cir. 2014)
Congress enacted
III.
Gillespie next argues that his bottom-of-the-Guidelines-range sentence was substantively unreasonable because it resulted in a longer sentence than that received by his co-conspirators who opted to plead guilty and cooperate with the government. We review sentences in two steps. First, we determine whether the district court has committed significant procedural error. United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020) (citing Gall v. United States, 552 U.S. 38, 51 (2007). Second, we consider whether the sentence imposed was substantively reasonable. Id.
A sentence is procedurally unreasonable if the district court committed a serious procedural error, such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, failing to consider the
Gillespie instead argues that he has been subject to an improper “trial penalty” and that his bottom-of-the-Guidelines sentence is therefore substantively unreasonable because it creates an “unwarranted sentence disparit[y]” with his co-conspirators under
Gillespie‘s argument fails for two reasons. First, a sentеnce is not “unreasonable under
Unlike some of his co-conspirators, Gillespie deliberately chose not to coopеrate with the government or to accept responsibility for his crimes. After spurning this opportunity, Gillespie cannot now claim a benefit he deliberately rejected.
IV.
Gillespie and his co-conspirators cynically targeted drug dealers under the belief they would be less likely to reveal the gang‘s predations to law enforcement. Even if by their illegal conduct the dealers placed themselves in opposition to the law, the law does not deny them all protection. It is of course the function of the law to punish such dealers for their misdeeds, but it is not the prerogative of Gillespie and his co-conspirators. The evidence at trial was overwhelming that Gillespie repeatedly violated the victims’ homes through a string of violent armed robberies. Sometimes he personally carried a gun and at other times his co-conspirators did so. The Supreme Court long ago affirmed the commonsense principle that those who enter criminal conspiracies bear responsibility for
AFFIRMED.