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United States v. Gillespie

United States District Court, S.D. West Virginia, Charleston Division

December 27, 2017




         Before the Court are objections to the Presentence Investigation Report (“PSR”) in this case filed by both Defendant and the Government. (ECF Nos. 894, 907.) The Court heard arguments from the parties during a hearing held on December 8, 2017. For the reasons provided herein, the Court DEFERS ruling on Defendant's objection as to the inclusion of the mandatory minimum sentences pursuant to 18 U.S.C. § 924(c) for his convictions on Counts Six and Twelve until the Supreme Court issues its decision in Dimaya v. Sessions, No. 15-1498, and OVERRULES the remaining objections made by both parties.


         A. Minor Role Reductions

         Defendant first argues that based on his participation in the robberies that are the object offenses of Group One and Group Three of the PSR, he should be given two-point minor role reductions for each group pursuant to Section 3B1.2(b) of the United States Sentencing Guidelines Manual (“Guidelines”). (See ECF No. 894 at 2; PSR at 29 ¶ 135, 31 ¶ 149.)[1]

         Section 3B1.2(b) of the Guidelines provides that “[i]f the defendant was a minor participant in any criminal activity, ” a two-level decrease should be applied to the relevant offense level. Application Note 5 in the commentary to that section states that a minor participant is “less culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5. The commentary to Section 3B1.2 also provides that “a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered” for the reduction, and “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative.” U.S.S.G. § 3B1.2 cmt. n.3(C). Further, the Court “should consider the following non-exhaustive list of factors” in determining whether to apply a minor role reduction:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal activity.

Id. Ultimately, the determination “is based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.” Id.

         Because Guidelines Section 3B1.2(b) sets forth a mitigating factor to reduce Defendant's offense levels within Groups One and Three, Defendant bears the burden of proof. See United States v. Pratt, 239 F.3d 640, 645 (4th Cir. 2001) (stating that Section 3B1.2 involves a mitigating role adjustment); see also United States v. Solomon, 274 F.3d 825, 828 n. 2 (4th Cir. 2001) (noting that “every circuit to consider [who bears the burden of proof] has assigned to the defendant the burden of proving entitlement to a sentencing reduction”). Thus, Defendant must show by a preponderance of the evidence that he is “less culpable than most other participants” for the object offenses in Groups One and Three. U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.5 (U.S. Sentencing Comm'n 2016) [hereinafter U.S.S.G.]; see United States v. Hassan, 742 F.3d 104, 150 (4th Cir.), cert. denied, 135 S.Ct. 157 (2014); United States v. Vicks, 529 Fed.Appx. 383, 385 (4th Cir. 2013) (unpublished opinion) (per curiam) (finding that a minor role reduction was not warranted for the defendant's sentence for Hobbs Act robbery conspiracy where he did not show by a preponderance of evidence that he played a minor role in the offense); United States v. Powell, 680 F.3d 350, 358 (4th Cir.) (setting forth the burden of proof and affirming the denial of a Section 3B1.2 role reduction), cert. denied, 568 U.S. 922 (2012); see also McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986) (finding that a preponderance of the evidence standard applies to factual disputes at sentencing).

         1. Group One: Robbery of Theodore Dues

         At Defendant's trial, Robert Barcliff (“Barcliff”) testified that Defendant participated in the December 13, 2011, robbery of Theodore Dues (“Dues”) in Kanawha City in the hopes of retrieving high-grade marijuana from his residence, (see ECF No. 631 at 26; see also ECF No. 632 at 38), and Brandon Davis (“Davis”) testified that Barcliff identified Dues as a target victim, (see ECF No. 683 at 24). Keith Glenn (“Glenn”), another co-conspirator and participant in the Dues robbery, testified that Defendant drove the group of four men to the target victim's residence, (ECF No. 632 at 41), and Barcliff stated that Defendant went into the apartment second just behind Davis and that all four participants were armed. (See ECF No. 631 at 26-27 (“Q. Why did [Davis] and [Defendant] go in first this time? A. They'd kind of argue about who don't do anything, who was just sitting around, so it was kind of like a competition or to prove themselves to one another that neither one are scared and that they will go in first.”).) However, Davis stated that only Barcliff and Glenn had firearms and that prior to entry one of them handed a firearm to Davis. (See ECF No. 683 at 25.) Barcliff also testified that he believed Defendant wore a Gator ski mask during the robbery. (See ECF No. 631 at 88-89; see also ECF No. 679-11 (Gov't Ex. 117).)

         According to Dues, the four men broke into his residence while he was there with his two children, pointed guns at him, and forced him into a back room. (See ECF No. 682 at 184-85.) Barcliff testified further that once he entered the apartment, he saw Davis holding Dues at gunpoint while Dues was holding his infant child. (ECF No. 631 at 27, 28 (noting that a second child was in a back room).) Dues added that the masked robbers took approximately $500 from his wallet, (see ECF No. 682 at 184-85; but see ECF No. 683 at 27-28 (Davis test.) (stating that Dues had about a thousand dollars on him that the men took)), and both Glenn and Davis stated that the robbers took a quantity of marijuana from a Mason jar inside the apartment, (see ECF No. 632 at 39, 40; ECF No. 683 at 27-28).

         The evidence adduced at trial and detailed in the Court's previously entered memorandum opinion and order denying Defendant's post-trial motions, not to mention the jury's verdict, demonstrates that Defendant entered into an agreement with Barcliff, co-defendant Jamaa Johnson, Davis, and Glenn to rob drug dealers and to use firearms in furtherance of that conspiracy. (See ECF No. 873 at 46-53.) To facilitate the robbery of Dues, Defendant drove himself, Barcliff, Davis, and Glenn to the target victim's residence in Kanawha City, which highlights his role in planning and organizing the robbery. Not only did Defendant transport the group to the site, but the evidence also shows that Defendant was the second robber to enter the residence. Defendant exerted some decision-making authority by entering the residence with Davis before Barcliff and Glenn. Defendant and Davis took the lead and directed Dues to cooperate despite the fact that they could have backed out of the apartment before the other two conspirators entered. There is evidence that Davis pointed a gun at Dues, which supports a finding that Defendant may be less culpable than Davis. However, there is no evidence that Defendant's conduct was less culpable than that of Barcliff or Glenn. Dues testified that four masked men entered his apartment with guns drawn and that the four men took money from his wallet. Davis and Glenn both testified that all four men took marijuana from the ...

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