UNITED STATES v. PENNINGTON (2024)

ORDER

Before the Court is Defendant Robert Pennington's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the reasons set forth herein, Defendant's Motion will be granted, his sentence will be vacated, and Defendant will be resentenced.

I. Background

After a jury trial in December 2010, Defendant was found guilty of one count of conspiracy to commit Hobbs Act robbery, one count of attempted Hobbs Act robbery, seven counts of completed Hobbs Act robbery, and seven counts of using or carrying a firearm during and in relation to a crime violence in violation of 18 U.S.C. § 924(c).¹ The charges arose from a string of armed robberies Defendant committed with Co-Defendant Gerardo Gonsales in 2007 and 2008, targeting delivery truck drivers in Pennsylvania.² Gonsales pled guilty and testified against Defendant at trial.³ On August 4, 2011, the Honorable James Gardner sentenced Defendant to 158 years of imprisonment, 157 years of which were to run consecutively on the seven § 924(c) counts.⁴ One of the § 924(c) counts, Count Five, was predicated on an attempted Hobbs Act robbery of a Penn Pride Oil deliveryman on February 4, 2008.

II. Discussion

The Supreme Court held in United States v. Taylor that “attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause” of § 924(c).⁵ The Government concedes that Taylor applies squarely to Count Five.⁶ Accordingly, Count Five will be vacated. However, the parties disagree as to the appropriate remedy. In essence, the Government suggests that it would be sufficient to simply reduce Defendant's sentence by 300 months.⁷ Defendant argues for a plenary resentencing hearing on the basis of the “sentencing package doctrine.”

When granting a § 2255 motion, courts have discretion to construct a “flexible remedy”⁸ and may “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”⁹ Under the sentencing package doctrine, “de novo resentencing is appropriate if one or more of the sentences on the underlying convictions are interdependent.”¹⁰ In elaborating on the basis for the doctrine, the Third Circuit has explained that

when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When a conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within the applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.11

The doctrine does not, however, require de novo resentencing when “the vacated count did not affect [the defendant's] total offense level, Guideline range, or sentence ․”¹² The Third Circuit has identified several “indicia of interdependence” to determine whether de novo resentencing is appropriate:¹³ (1) whether all of the counts were grouped under the Sentencing Guidelines; (2) whether the vacated count affected the total offense level; and (3) whether the sentences were set to run consecutively, as opposed to concurrently.¹⁴ When assessing interdependence, the Third Circuit has recognized that “[w]hether two sentences are interdependent turns on whether they ‘result in an aggregate sentence’ as opposed to ‘sentences which may be treated discretely.’ ”¹⁵

The 84-month sentence imposed on Count Five was statutorily required under § 924(c)(1)(A)(ii) to run consecutively to any other term of imprisonment imposed, as the Presentence Report observed,¹⁶ and as Judge Gardner confirmed during the sentencing hearing.¹⁷ That suggests that the vacated count was interdependent with the others.¹⁸

Count Five also impacted Defendant's total offense level under the Sentencing Guidelines, albeit in Defendant's favor. Count One (the overarching conspiracy count) and Count Four (the attempted robbery count) were grouped in the Presentence Report as “Group VIII.”¹⁹ Although a firearm was brandished during the February 4 attempted robbery, Group VIII was not subject to a weapon enhancement under the Guidelines because of Defendant's § 924(c) conviction predicated on the attempted robbery.²⁰ Without Count Five, the weapon enhancement would have applied to Group VIII, and Defendant's offense level for that group would have increased from 22 to 27—the highest of all of Defendant's subtotals and therefore providing the total offense level for Defendant's sentence.²¹ A new combined adjusted offense level of 31 would have increased Defendant's advisory guidelines range for the robbery offenses from 87–108 months to 135–168 months.²² As one district court in this Circuit has observed, “[t]he classic application of the ‘sentencing package’ idea involves a sentence in which the sentencing court initially imposed a consecutive § 924(c) sentence, but withheld any sentencing enhancement for gun use under [the Sentencing Guidelines] because the two provisions are mutually exclusive.”²³ The impact of Count Five on Defendant's total offense level, even if favorable to him, further suggests interdependency with the other counts.²⁴

Finally, the sentencing judge imposed a sentence which was a significant downward variance on the nine underlying Hobbs Act robbery, conspiracy, and attempt charges, based upon the fact that Defendant was already subject to a total 157-year mandatory minimum sentence on the § 924(c) counts, including Count Five.²⁵ The court observed that “the absolute lowest sentence ․ [possible] under the law, was 157 years plus one day.”²⁶ Although it held that “a sentence of one day for a charge of robbery” was inappropriate, the court imposed “one-year sentences on each of them ․ to be served concurrently,” rather than sentences of “up to twenty years on each of those robberies,” which would have been within the guidelines range.²⁷

A recent case in this district, United States v. White, held that comparable language by the sentencing judge, in circumstances similar to this case, was an indication of interdependency that “tip[ped] the balance” in favor of plenary resentencing.²⁸ There, as here, the court determined that plenary resentencing was appropriate after the vacatur of one § 924(c) count predicated on attempted Hobbs Act robbery, while other § 924(c) and underlying robbery convictions remained undisturbed.²⁹ Plenary resentencing is even more strongly supported in this case, because unlike in White, the vacated § 924(c) count here affected Defendant's offense level and guidelines range on the underlying robbery offenses. All of these indicators confirm that Count Five was part of a sentencing package and was not discrete from the other components of the original sentence.

The Government nevertheless opposes plenary resentencing, citing a string of cases in which resentencing was denied after a § 924(c) conviction was vacated.³⁰ But all of those cases involved defendants who separately received concurrent life sentences—a clearly distinguishable set of circumstances from one-year sentences running concurrently on underlying robbery counts, alongside a series of 25-year consecutive sentences for interrelated firearm offenses. At bottom, district courts have significant discretion in identifying an appropriate remedy on a successful § 2255 motion, and “the choice of a remedy [under § 2255(b)] is necessarily part of the § 2255 proceeding.”³¹ Thus, this Court, in exercising its “broad and flexible power,”³² holds that plenary resentencing is appropriate in this case.

AND NOW, this 30th day of July 2024, upon consideration of Defendant Robert Pennington's Motion to Correct Sentence Under 28 U.S.C. § 2255 [Doc. No. 250] and the response and reply thereto, it is hereby ORDERED that Defendant's Motion is GRANTED in part. Defendant's conviction on Count Five and judgment of sentence is VACATED. A separate Order will be entered scheduling a resentencing date.

It is so ORDERED.

FOOTNOTES

1.   See Crim. J. [Doc. No. 234].

2.   Gov't Resp. at 1 [Doc. No. 298].

3.   Id.

4.   Sentencing Tr., Aug. 4, 2011, at 43–46 [Doc. No. 243].

5.   596 U.S. 845, 852, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022).

6.   Gov't Resp. at 7, 10 [Doc. No. 298].

7.   While Count Five carried a mandatory 84-month consecutive sentence, Defendant's mandatory sentences on all of the “subsequent” § 924(c) convictions were subject to repeater penalties. See 18 U.S.C. § 924(c)(1)(C) (2006) (imposing 25-year minimum “[i]n the case of a second or subsequent conviction under this subsection ․”). Removing Count Five means that Count Eight would become the “first” § 924(c) conviction, and therefore the mandatory sentence on Count Eight would be reduced by 216 months (i.e., 25 years to 7 years). That would result in an overall reduction of Defendant's mandatory minimum sentence by 300 months. See Def.’s Reply at 8 n.2 [Doc. No. 305].

8.   Andrews v. United States, 373 U.S. 334, 339, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963).

9.   28 U.S.C. § 2255(b).

10.   United States v. Norwood, 49 F.4th 189, 202 (3d Cir. 2022) (citation omitted).

11.   United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997) (citation omitted).

12.   United States v. Ciavarella, 716 F.3d 705, 735 (3d Cir. 2013) (citing Davis, 112 F.3d at 121–23).

13.   United States v. Diaz, 639 F.3d 616, 619 (3d Cir. 2011).

14.   United States v. White, No. 10-420-1, 2024 WL 3032891, at *2 (E.D. Pa. June 17, 2024) (citations omitted).

15.   Norwood, 49 F.4th at 203 (quoting United States v. Murray, 144 F.3d 270, 273 n.4 (3d Cir. 1998)).

16.   Presentence Report ¶ 178 [hereinafter “PSR”].

17.   Sentencing Tr., Aug. 4, 2011, at 43 [Doc. No. 243].

18.   See Diaz, 639 F.3d at 620.

19.   PSR ¶¶ 105–11. Count Five and the other § 924(c) counts were excluded from grouping, as they carried a mandatory minimum and were required to run consecutively to any other term of imprisonment imposed. Id. ¶ 47 (citing U.S.S.G. § 3D1.1(b)(1)).

20.   Id. ¶¶ 47, 106 (citing Application Note 4 to U.S.S.G. § 2K2.4 (2010)).

21.   See id. ¶¶ 112–19; Sentencing Tr., Aug. 4, 2011, at 43–44 [Doc. No. 243] (granting Defendant's unopposed objection to paragraph 82 of the PSR, such that the then-highest subtotals were 22 for Groups I and VIII, resulting a combined adjusted offense level of 27 after accounting for the multiple-count adjustment). With Group VIII as the highest subtotal instead (27 after applying the five-level weapon enhancement), Defendant's combined adjusted offense level would have increased from 27 to 31 (after applying a lower, four-level multiple-count adjustment due to changes to the unit calculations under U.S.S.G. § 3D1.4).

22.   Sentencing Tr., Aug. 4, 2011, at 44 [Doc. No. 243] (indicating guidelines range of 87–108 months on the robbery charges, after adjusting for Defendant's successful objection); U.S.S.G. ch. 5, pt. A (2010) (providing ranges based on Defendant's criminal history category of III for an offense level of 27, which the sentencing court applied, versus an offense level of 31 had Count Five been omitted).

23.   Clark v. United States, No. 19-17214, 2021 WL 3561246, at *7 n.5 (D.N.J. Aug. 12, 2021) (quoting United States v. Morris, 116 F.3d 501, 504 (D.C. Cir. 1997)).

24.   Cf. White, 2024 WL 3032891, at *2 n.1 (considering similar case where five-level weapon enhancement would have applied had a § 924(c) conviction been vacated, but another group of offenses had a higher subtotal even if the enhancement had been applied).

25.   Sentencing Tr., Aug. 4, 2011, at 44–45 [Doc. No. 243].

26.   Id. at 46–47.

27.   Id. at 47.

28.   White, 2024 WL 3032891, at *3 (citing Davis, 112 F.3d at 122); see also Diaz, 639 F.3d at 620 (“The Court specifically affirmed that it had a sentencing scheme in mind—indicating that it viewed the sentences as interdependent.”).

29.   White, 2024 WL 3032891, at *3.

30.   Gov't Resp. at 10–11 [Doc. No. 298] (citing Clark v. United States, 76 F.4th 206 (3d Cir. 2023); United States v. Ortiz, No. 05-44-10, 2022 WL 17325956 (E.D. Pa. Nov. 29, 2022); United States v. Sosa, No. 05-44-1, 2022 WL 16722335 (E.D. Pa. Nov. 4, 2022)).

31.   Clark, 76 F.4th at 211.

32.   Davis, 112 F.3d at 121.

CYNTHIA M. RUFE, District Judge