Substantial Steps, Circumstantial Evidence, and Foreseeable Firearms:
A Commentary on United States v. Harold Edward Spencer, III & United States v. Jon Demetrious Jacques Morgan

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I. Introduction

The consolidated appeals in United States v. Spencer and United States v. Morgan present a familiar yet important trio of issues in federal criminal practice: the sufficiency of circumstantial evidence to sustain convictions for Hobbs Act robbery and conspiracy, the line between “mere preparation” and a “substantial step” in attempted Hobbs Act robbery, and the scope of sentencing liability for firearms under the United States Sentencing Guidelines in jointly undertaken criminal activity.

Though the Fourth Circuit’s decision is unpublished and expressly “not binding precedent in this circuit,” it provides a compact but significant illustration of:

• How robust circumstantial evidence can be in linking a defendant to a robbery spree, even without eyewitness identifications;
• How a recurring modus operandi and joint flight from an attempted robbery can establish participation in a robbery conspiracy;
• How courts apply the “substantial step” standard in the attempted Hobbs Act robbery context; and
• How USSG § 2B3.1(b)(2)(C)’s five-level firearm enhancement operates in attempted robbery cases via joint accountability and foreseeability under USSG § 1B1.3.

This commentary proceeds on the basis of the opinion text provided, without reference to materials outside the record quoted in the decision.

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II. Case Background

A. Parties and Charges

The defendants, Harold Edward Spencer III and Jon Demetrious Jacques Morgan, were prosecuted in the Eastern District of Virginia for a robbery spree targeting small businesses. A federal jury convicted them of:

• Both Appellants:
  • Conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a);
  • Attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a).
• Spencer additionally:
  • Six counts of completed Hobbs Act robbery, 18 U.S.C. §§ 2, 1951(a);
  • Three counts of brandishing a firearm during and in relation to a crime of violence, 18 U.S.C. §§ 2, 924(c)(1)(A)(ii);
  • One count of discharging a firearm during and in relation to a crime of violence, 18 U.S.C. §§ 2, 924(c)(1)(A)(iii).

The robberies (and attempted robbery) involved convenience-type stores and other small businesses equipped with gambling machines. The crew employed a consistent, coordinated approach designed to conceal their identities and rapidly obtain money and other property.

B. Factual Overview

While the opinion is concise, several key facts emerge:

• Spencer was apprehended after a high-speed chase immediately following an attempted robbery of a “Tiger Mart.”
• Police observed individuals fleeing in a “getaway car” and discarding firearms from the vehicle during the chase.
• A ski mask recovered from the getaway car contained Spencer’s DNA.
• Spencer was wearing distinctive shoes that matched those worn by one of the gun-wielding robbers in surveillance footage from the completed robberies.
• A shoeprint from one robbery scene matched Spencer’s shoes.
• Lottery tickets taken from one of the robbed stores were later redeemed by Spencer.
• Photos on Spencer’s cell phone further implicated him in the robbery spree.
• The robberies and attempted robbery shared a common modus operandi:
  • Targeting small businesses with gambling machines;
  • Parking behind the business and approaching from the rear in a “stack” formation;
  • Wearing masks, gloves, hoodies, and other concealing clothing;
  • Brandishing firearms once inside.

Spencer and Morgan, along with co-defendants, were arrested together following the aborted Tiger Mart robbery, having been spotted by officers investigating the robbery series.

C. Issues on Appeal

The appellants raised two main claims:

1. Sufficiency of the Evidence:
   • As to Spencer, they argued the evidence was insufficient to link him to the six completed robberies and the associated firearm counts;
   • As to both appellants, they contended the evidence was insufficient to prove:
     • A conspiracy to commit Hobbs Act robbery; and
     • An attempt to commit Hobbs Act robbery (insisting their conduct reflected only “preparation,” not a “substantial step”).
2. Sentencing Error:
   • They challenged the procedural reasonableness of their sentences, arguing the district court erred by applying the five-level enhancement under USSG § 2B3.1(b)(2)(C) for firearm possession in connection with the attempted robbery.
   • They also suggested that the enhancement was improperly based on “acquitted conduct.”

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III. Summary of the Fourth Circuit’s Opinion

The Fourth Circuit, per curiam, affirmed the convictions and sentences in all respects. In doing so, the court held:

1. Sufficiency of the Evidence – Spencer’s Identity:
   • The circumstantial evidence (DNA on a ski mask, matching shoe and shoeprint, surveillance footage, redemption of stolen lottery tickets, and incriminating photographs) was sufficient for a rational jury to find beyond a reasonable doubt that Spencer participated in the six completed robberies and related firearm offenses.
2. Sufficiency of the Evidence – Conspiracy:
   • The government presented adequate evidence of a robbery conspiracy and of both Spencer and Morgan’s knowing, voluntary participation, including:
     • They were arrested together fleeing the attempted robbery;
     • They were seen discarding firearms from the getaway car;
     • The robberies followed a consistent, coordinated modus operandi; and
     • Other coordination evidence showed a tacit or mutual understanding among conspirators.
3. Sufficiency of the Evidence – Attempted Hobbs Act Robbery:
   • The evidence satisfied both elements of attempt:
     • Intent to unlawfully take property by actual or threatened force; and
     • A “substantial step” toward commission of the robbery, not mere preparation, given that the crew took all the steps they usually took immediately before a completed robbery. The court emphasized that, absent police intervention, it was probable they would have completed the Tiger Mart robbery.
4. Sentencing – Firearm Enhancement under USSG § 2B3.1(b)(2)(C):
   • The district court did not err in applying the five-level enhancement to the attempted robbery counts, because:
     • Firearms were possessed in connection with the attempted robbery; and
     • Under USSG § 1B1.3(a)(1)(B), co-conspirators’ possession of firearms was reasonably foreseeable to both appellants as part of the jointly undertaken criminal activity.
   • Spencer did not object below, so review was for plain error;
   • Morgan objected, but the district court’s finding—by a preponderance of the evidence—that firearm possession was reasonably foreseeable was affirmed as not clearly erroneous;
   • To the extent the appellants argued that the enhancement relied on acquitted conduct, that argument was rejected as without merit, with a citation to United States v. Henderson, 136 F.4th 527, 535 n.2 (4th Cir. 2025).

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IV. Detailed Analysis of the Court’s Reasoning

A. Sufficiency of the Evidence: Standards and Framework

The court began with the standard for reviewing sufficiency of the evidence. Citing United States v. Gallagher, 90 F.4th 182 (4th Cir. 2024), it reiterated that a convicted defendant faces a “heavy burden” on appeal. The critical points:

• Under United States v. Luong, 125 F.4th 147, 153 (4th Cir. 2025), a jury verdict must be sustained if there is substantial evidence, viewed in the light most favorable to the government, to support it.
• “Substantial evidence” is evidence that a reasonable fact-finder could accept as adequate and sufficient to find guilt beyond a reasonable doubt.
• It is the jury, not the appellate court, that:
  • Weighs the credibility of witnesses;
  • Resolves conflicts in the evidence; and
  • Chooses among reasonable interpretations of the evidence.

The court further emphasized, citing United States v. Seigler, 990 F.3d 331, 338 (4th Cir. 2021), that sufficiency review focuses on the evidence actually in the record, not on what evidence might have been introduced (e.g., eyewitness identifications that were not obtained).

This framework is crucial. It is inherently deferential and underscores that appellate courts will not reweigh evidence or second-guess reasonable inferences drawn by a jury. Within that framework, the court examined:

• (1) The evidence connecting Spencer to the completed robberies;
• (2) The evidence establishing the conspiracy; and
• (3) The evidence supporting the attempted Hobbs Act robbery convictions.

B. Linking Spencer to the Completed Robberies

Spencer argued that the absence of eyewitness identifications—because robbers wore gloves and masks—rendered the evidence insufficient. The court rejected this, effectively reaffirming that circumstantial evidence can be just as probative as direct evidence.

The court pointed to a constellation of facts:

• Post-crime apprehension: Spencer was arrested after driving the getaway car from the scene of an attempted robbery, following a high-speed police chase. His arrest in flight from a robbery attempt is itself probative of participation.
• DNA evidence: A ski mask with Spencer’s DNA was recovered from the getaway car, directly tying him to the apparel used in the robberies.
• Distinctive footwear:
  • Spencer wore distinctive shoes at the time of arrest;
  • Surveillance video from earlier robberies showed the robber brandishing and discharging a gun while wearing those same distinctive shoes; and
  • A shoeprint impression at one robbery scene matched Spencer’s shoes.
• Possession of stolen property: He redeemed lottery tickets taken from one of the robbed businesses.
• Digital evidence: Photos on his cell phone further implicated him in the robbery offenses.

Instead of treating each piece of evidence in isolation, the court implicitly endorsed a holistic, cumulative approach: when considered together, these pieces allowed a rational jury to conclude that Spencer was the masked robber in the six incidents.

In doing so, the court applied the deferential standard: because the jury’s inference that Spencer was involved was reasonable, the verdict had to stand. The opinion thus reinforces that:

• Masked perpetrators can still be confidently identified through forensic, physical, and digital circumstantial evidence;
• Lack of eyewitness facial identification is not fatal where the circumstantial case is strong.

C. Proving a Hobbs Act Robbery Conspiracy

For the conspiracy count, the court anchored its reasoning in long-standing conspiracy principles, citing:

• United States v. Wiley, 93 F.4th 619, 633 (4th Cir. 2024);
• United States v. Moody, 2 F.4th 180, 194 (4th Cir. 2021); and
• United States v. Ath, 951 F.3d 179, 186 (4th Cir. 2020).

Key doctrinal points:

• The government must prove that the defendant entered an agreement to commit a crime, but:
  • The agreement need not be explicit;
  • It may be inferred from circumstantial evidence;
  • Conspiracies are often “clandestine and covert,” so direct evidence of an express agreement is rare.
• A “tacit or mutual understanding” among co-conspirators suffices.
• A defendant’s presence at the crime scene, association with co-conspirators, and coordinated behavior is “material and probative.”
• Once the government proves a conspiracy exists, it need only show a “slight connection” between the defendant and the conspiracy to sustain a conviction (Ath).

Applying these principles, the court concluded the evidence was sufficient to establish both:

1. The existence of a conspiracy to commit Hobbs Act robberies; and
2. Spencer’s and Morgan’s knowing and voluntary participation in that conspiracy.

The facts relied upon included:

• The defendants and co-defendants were:
  • Arrested together while fleeing the scene of an attempted robbery;
  • Seen throwing firearms out of the getaway car.
• The robberies followed a consistent, coordinated modus operandi:
  • Targeting small businesses with gambling machines;
  • Parking behind the business and approaching from the rear in a “stack” formation;
  • Wearing gloves, masks, hoodies, and other identity-concealing clothing;
  • Brandishing guns once inside the store.
• “Additional evidence of their coordination” (not detailed in the opinion, but referenced) supported a finding of mutual understanding.

By emphasizing the consistent modus operandi and group arrest, the court signaled that:

• Joint participation in a patterned series of robberies raises a strong inference of conspiracy;
• Even in the absence of explicit communications or formal agreements, a pattern of coordinated conduct can establish a tacit agreement;
• Presence plus coordinated action, particularly in repeated episodes, satisfies the “slight connection” requirement once a conspiracy is otherwise shown.

D. Attempted Hobbs Act Robbery: Distinguishing Preparation from a Substantial Step

The appellants argued that their conduct at the Tiger Mart amounted only to preparation, not an attempt. The court disagreed, citing:

• United States v. Taylor, 596 U.S. 845, 851 (2022) (for the elements of attempted Hobbs Act robbery);
• United States v. Haas, 986 F.3d 467, 478 (4th Cir. 2021) (on substantial step);
• United States v. Pratt, 351 F.3d 131, 136 (4th Cir. 2003) (on the attempt–preparation line and probability of completion).

Under Taylor, to prove attempted Hobbs Act robbery, the government must show:

1. Intent to unlawfully take or obtain personal property by means of actual or threatened force; and
2. A substantial step toward that end.

From Haas:

• A substantial step need not be the “last possible act” toward commission of the crime; but
• It must be more than mere preparation;
• The conduct must be “strongly corroborative of culpable intent.”

From Pratt:

• The question is whether, as perceived by the defendant, it was probable that the crime would have been completed but for intervening circumstances.

Applying these principles, the court concluded:

• The crew had taken “all the steps they normally took just before robbing the store”:
  • They had assembled as a group;
  • They had the getaway car;
  • They approached the target in the same manner as prior robberies;
  • Firearms were present (as evidenced by guns being thrown from the car);
  • They were interrupted not by their own change of heart, but by police detection.
• Given this, it was “probable that they would have completed the crime if they had not been spotted by police and fled.”

The court therefore held that the evidence showed:

1. The necessary intent to rob the Tiger Mart by force or threat of force; and
2. A substantial step toward that robbery, satisfying the attempt element under Taylor/Haas/Pratt.

Doctrinally, this application is significant because it confirms that:

• Executing the complete pre-robbery “ritual” (assembling the crew, arming themselves, deploying the getaway car, approaching the target in formation) may constitute a substantial step, even if:
  • No entry into the store has yet occurred, or
  • No verbal announcement of a robbery has yet been made.
• Police intervention—as an external, intervening event—does not negate attempt where, from the defendants’ perspective, the robbery was about to occur.

E. Sentencing and the Firearm Enhancement Under USSG § 2B3.1(b)(2)(C)

The final (and most technically nuanced) issue was the five-level enhancement under USSG § 2B3.1(b)(2)(C), which applies “[i]f a firearm was brandished or possessed” in connection with a robbery. The enhancement was imposed on the attempted robbery counts, not just the completed robberies.

The court’s analysis involved:

• The standard of review for sentencing errors;
• The relevant conduct and joint liability principles of USSG § 1B1.3(a)(1)(B);
• The foreseeability of co-conspirators’ possession of firearms; and
• The appellants’ acquitted-conduct argument.

1. Standards of Appellate Review in Sentencing

The court cited several cases:

• United States v. Smith, 134 F.4th 248, 256 (4th Cir. 2025): all sentences are reviewed under a deferential abuse-of-discretion standard.
• United States v. Henderson, 136 F.4th 527, 534 (4th Cir. 2025): appellate courts must ensure there is no significant procedural error, including:
  • Incorrectly calculating the Guidelines range, or
  • Selecting a sentence based on clearly erroneous factual findings.
• United States v. Gross, 90 F.4th 715, 720 (4th Cir. 2024): factual findings related to Guidelines are reviewed for clear error; legal conclusions de novo.
• United States v. Dominguez, 128 F.4th 226, 230–31 (4th Cir. 2025): if a defendant did not object below, review is for plain error only.
• United States v. Mills, 917 F.3d 324, 330 (4th Cir. 2019): even if a Guidelines application is erroneous, reversal is not required if the error is harmless.

Here:

• Spencer did not object to the enhancement at sentencing, so his claim was reviewed for plain error (a demanding standard requiring a clear or obvious error that affects substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings).
• Morgan did object; as to him, the court reviewed the district court’s factual finding (that gun possession by co-conspirators was foreseeable) for clear error.

2. Relevant Conduct and Jointly Undertaken Criminal Activity – USSG § 1B1.3

The key legal framework for attributing a firearm to both defendants comes from USSG § 1B1.3(a)(1)(B), which defines relevant conduct in the context of jointly undertaken criminal activity. Under that provision, in a concerted criminal endeavor, a defendant is accountable for:

• All reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, provided those acts are:
  • Within the scope of the jointly undertaken activity; and
  • In furtherance of that criminal activity.

Thus, when co-conspirators possess or brandish firearms in a robbery plan, that conduct may be attributed to all participants for Guidelines purposes if:

1. The robbery is a jointly undertaken project;
2. The firearm possession is in furtherance of that project; and
3. It is reasonably foreseeable to each defendant that firearms would be used or possessed.

The Fourth Circuit held that these conditions were satisfied:

• The attempted Tiger Mart robbery was clearly a jointly undertaken criminal activity involving multiple participants acting in concert.
• Firearms were possessed “in connection with that offense”—the opinion specifically notes that guns were thrown from the getaway car as the defendants fled.
• Given the crew’s established pattern—repeatedly brandishing firearms inside stores during completed robberies—it was reasonably foreseeable that guns would again be possessed in the attempted robbery.
  • The district court found this by a preponderance of the evidence; the Fourth Circuit found no error in this factual determination.

This reasoning confirms an important principle for robbery and attempt cases:

• Where a robbery crew repeatedly uses firearms as an integral part of its modus operandi, it will usually be foreseeable to each member that guns will be involved in any further robbery attempt;
• As a result, the § 2B3.1(b)(2)(C) firearm enhancement will often apply to each participant, including those who did not personally handle a gun.

3. The Attempt Context

Notably, the enhancement was applied to a failed, attempted robbery. The court did not treat this as an obstacle. The Guidelines focus on whether a firearm was “brandished or possessed” in connection with the offense, not on whether the underlying robbery was completed.

Because firearms were possessed during the attempted robbery (as evidenced by their disposal from the car during flight), the attempt count was subject to the same enhancement as a completed robbery would have been. The attempt nature of the offense affected the base offense level (because it is an attempt), but not the applicability of § 2B3.1(b)(2)(C) where guns are actually present.

4. Acquitted Conduct

In a brief but important footnote, the court addressed the appellants’ argument that the enhancement was improperly based on “acquitted conduct.” The court stated that this argument was “without merit,” citing Henderson, 136 F.4th at 535 n.2.

The broader legal backdrop (consistent with then-prevailing federal law) is that:

• At sentencing, courts may generally consider conduct for which a defendant was acquitted, so long as that conduct is proved by a preponderance of the evidence and is within the scope of relevant conduct under the Guidelines.
• This doctrine is controversial, but remains widely applied unless and until constrained by statute or higher-court decisions.

Here, the opinion signals that:

• The enhancement was not improperly based on acquitted conduct; and
• Even if such a claim were framed, existing circuit authority (as exemplified by Henderson) forecloses it.

In effect, the court affirms that traditional relevant-conduct principles continue to govern, even where the jury’s verdict did not include a specific firearms conviction tied to a given count.

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V. Discussion of Key Precedents Cited

While the opinion is succinct, it draws upon a series of prior cases to anchor its reasoning. A closer look demonstrates how these precedents shaped the outcome.

A. Sufficiency-of-the-Evidence Line: Gallagher, Luong, Seigler

• United States v. Gallagher, 90 F.4th 182 (4th Cir. 2024):
  • Reiterates that defendants challenging the sufficiency of evidence bear a “heavy burden”;
  • Emphasizes deference to the jury’s role in evaluating evidence and drawing inferences.
• United States v. Luong, 125 F.4th 147 (4th Cir. 2025):
  • Restates that a conviction must be sustained if supported by “substantial evidence” when viewed in the light most favorable to the government;
  • Defines “substantial evidence” in the criminal context as that which allows a reasonable fact-finder to find guilt beyond a reasonable doubt.
• United States v. Seigler, 990 F.3d 331 (4th Cir. 2021):
  • Clarifies that appellate courts review the evidence that is in the record, not hypothetical evidence that might have been presented;
  • Useful here to rebut the defendants’ focus on the absence of eyewitness identifications.

These cases collectively support the court’s refusal to overturn the jury’s verdicts, despite defense arguments highlighting perceived evidentiary gaps.

B. Conspiracy Cases: Wiley, Moody, Ath

• United States v. Wiley, 93 F.4th 619 (4th Cir. 2024):
  • Explains that conspiracy agreements can be entirely circumstantial;
  • Recognizes that conspiracies are often secretive, justifying reliance on a tacit or mutual understanding inferred from conduct.
• United States v. Moody, 2 F.4th 180 (4th Cir. 2021):
  • Reiterates the legitimacy of circumstantial evidence in proving conspiracy;
  • Supports a broad, practical view of what constitutes agreement.
• United States v. Ath, 951 F.3d 179 (4th Cir. 2020):
  • Articulates the “slight connection” rule: once the existence of a conspiracy is established, the defendant’s minimal but voluntary link to that conspiracy suffices for conviction.

These cases underpin the court’s acceptance of coordinated behavior, shared modus operandi, and joint flight as sufficient evidence of a conspiracy and the appellants’ participation.

C. Attempt Jurisprudence: Taylor, Haas, Pratt

• United States v. Taylor, 596 U.S. 845 (2022):
  • While widely known for its holding that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c) for categorical purposes, here it is cited for the elements of attempt: intent plus substantial step.
• United States v. Haas, 986 F.3d 467 (4th Cir. 2021):
  • Clarifies that a substantial step must go beyond mere preparation and be strongly corroborative of criminal intent.
• United States v. Pratt, 351 F.3d 131 (4th Cir. 2003):
  • Provides the “probability” test: courts should ask how likely the crime was to occur (from the defendant’s perspective) had there been no intervening event.

Together, these precedents support treating the defendants’ full execution of their pre-robbery ritual, followed only by police intervention, as an attempt rather than mere preparation.

D. Sentencing and Relevant Conduct: Smith, Henderson, Gross, Dominguez, Mills

• United States v. Smith, 134 F.4th 248 (4th Cir. 2025): confirms abuse-of-discretion review for sentences.
• United States v. Henderson, 136 F.4th 527 (4th Cir. 2025):
  • Articulates procedural reasonableness standards;
  • In a footnote (cited here), apparently reaffirms the permissibility of considering acquitted conduct at sentencing.
• United States v. Gross, 90 F.4th 715 (4th Cir. 2024): clarifies standard of review for Guidelines-related factual and legal issues.
• United States v. Dominguez, 128 F.4th 226 (4th Cir. 2025): applies plain-error review where there was no objection below.
• United States v. Mills, 917 F.3d 324 (4th Cir. 2019): stands for harmless-error principles in Guidelines misapplication claims.

These cases provide the doctrinal lens through which the Fourth Circuit evaluated the firearm enhancement challenge and ultimately affirmed the district court’s sentencing decisions.

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VI. Complex Concepts Simplified

Although the opinion is written in technical legal language, several key concepts underlie its reasoning. The following explanations are designed for clarity.

A. Hobbs Act Robbery and Attempt

• Hobbs Act robbery (18 U.S.C. § 1951) involves:
  • Robbing or extorting someone;
  • By means of actual or threatened force, violence, or fear;
  • In a way that affects interstate commerce (a low threshold usually satisfied for commercial businesses).
• Attempted Hobbs Act robbery requires:
  • The intent to commit Hobbs Act robbery; and
  • A substantial step toward that robbery—conduct that goes beyond planning and moves into action strongly indicative of commitment to the crime.

B. Conspiracy

• A conspiracy is an agreement between two or more persons to commit a crime.
• The agreement:
  • Does not have to be written or spoken aloud;
  • Can be inferred from coordinated actions, shared methods, repeated collaboration, and other circumstantial evidence.
• Once a conspiracy is proven, a defendant’s “slight connection”—such as participation in the group’s activities—can be enough if it is knowing and voluntary.

C. Circumstantial vs. Direct Evidence

• Direct evidence: Evidence that directly proves a fact (e.g., a witness testifying, “I saw the defendant point the gun.”).
• Circumstantial evidence: Evidence from which a fact can be inferred (e.g., finding the defendant’s fingerprints on the gun, or his DNA on a mask).
• In law, circumstantial evidence is not inherently weaker than direct evidence; a strong circumstantial case, as here, can be decisive.

D. “Substantial Step” vs. “Mere Preparation”

• Mere preparation might include:
  • Talking about a robbery;
  • Buying a mask or gun;
  • Driving around to pick a target.
• A substantial step occurs when:
  • The defendant moves from planning to action in a way that strongly shows he intends to commit the crime;
  • From his perspective, the crime would probably happen unless something interrupts (like police intervention).

E. Sentencing Guidelines and Relevant Conduct

• The U.S. Sentencing Guidelines provide advisory ranges based on:
  • The offense type and severity; and
  • The defendant’s criminal history.
• Relevant conduct (USSG § 1B1.3) includes acts:
  • Committed, aided, or induced by the defendant; and
  • In the case of joint activity, reasonably foreseeable acts of others in furtherance of the common plan.
• USSG § 2B3.1(b)(2)(C) adds 5 offense levels if a firearm was “brandished or possessed” during a robbery or attempted robbery.

F. Plain Error and Clear Error

• Plain error review (when no objection was made below) requires:
  1. An error that is clear or obvious;
  2. That affects the defendant’s substantial rights (usually the outcome); and
  3. That seriously affects the fairness or integrity of the proceedings.
• Clear error review (for factual findings) means:
  • The appellate court will uphold the trial court’s finding unless, after reviewing all the evidence, it is left with the firm conviction that a mistake has been made.

G. Acquitted Conduct

• Acquitted conduct refers to conduct that a jury has expressly rejected as the basis for a conviction.
• Under prevailing federal law at the time of this opinion, sentencing judges are often permitted to consider such conduct if:
  • It is proved by at least a preponderance of the evidence; and
  • It qualifies as relevant conduct under the Guidelines.

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VII. Impact and Broader Significance

Although unpublished and nonprecedential, United States v. Spencer & Morgan offers several instructive points likely to influence future cases in the Fourth Circuit as persuasive authority and to guide practitioners.

A. Circumstantial Evidence in Robbery Prosecutions

The decision underscores that:

• DNA evidence, distinctive clothing, matching shoeprints, possession of stolen goods, and incriminating digital material, when taken together, can form a compelling case even without eyewitness identifications;
• Defense arguments focusing on what evidence is not present (e.g., no eyewitness identifications) are unlikely to succeed where the existing circumstantial record is strong.

This will be particularly relevant in modern robbery cases involving masked perpetrators, where forensic and technological evidence often replaces traditional eyewitness testimony.

B. Robust Use of Modus Operandi and Group Flight to Prove Conspiracy

By relying heavily on:

• The consistent targeting of similar businesses with gambling machines;
• The repeated use of the same approach and disguise techniques;
• The coordinated presence and joint flight of the defendants from an attempted robbery;

the court reinforces the idea that:

• Evidence of a stable modus operandi across a series of offenses strongly supports the existence of a conspiracy;
• Group arrest during or immediately after an attempted offense is powerful circumstantial evidence of mutual agreement and participation.

C. Clarification on Substantial Step in Attempted Robbery

The court’s application of Taylor, Haas, and Pratt confirms that:

• A robbery “crew” that carries out all of its usual pre-robbery actions has taken a substantial step, even if:
  • The robbery is interrupted before entry or explicit threats;
  • No property is actually taken.
• Law enforcement’s timely intervention does not retroactively downgrade an attempt to mere preparation.

This has practical consequences:

• Prosecutors can charge attempt with confidence where evidence shows a full pre-robbery deployment interrupted by police;
• Defendants will have a difficult time arguing that such conduct is only preparatory.

D. Firearm Enhancements in Joint Robbery and Attempt Cases

Finally, the ruling reinforces that:

• In robbery conspiracies where firearms are repeatedly used, it will almost always be foreseeable to each participant that guns will be used again;
• USSG § 2B3.1(b)(2)(C) will likely apply to each conspirator—including drivers or lookouts—so long as guns are possessed in connection with the robbery or attempt;
• Attempted robberies are not insulated from firearm enhancements where guns are in fact present and within the scope of relevant conduct.

Moreover, the opinion suggests continued adherence to the traditional federal rule allowing consideration of acquitted conduct in calculating Guidelines ranges, an area of ongoing policy and constitutional debate.

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VIII. Conclusion

United States v. Spencer & Morgan does not announce a new controlling rule of law, and its unpublished status means it is not binding within the Fourth Circuit. Nonetheless, it provides a compact but illustrative synthesis of several important doctrines:

• The deferential approach to sufficiency-of-the-evidence review, particularly in cases reliant on circumstantial proof;
• The evidentiary path to establishing conspiracy through modus operandi, coordinated action, and joint flight;
• The application of the “substantial step” requirement in the attempted Hobbs Act robbery context, emphasizing probability of completion absent police intervention; and
• The operation of USSG § 2B3.1(b)(2)(C)’s firearm enhancement in jointly undertaken robbery attempts under the relevant-conduct framework of USSG § 1B1.3.

The opinion affirms that sophisticated circumstantial evidence can effectively substitute for direct eyewitness identification, that conspiracy may be inferred from repeated, coordinated conduct, and that sentencing enhancements for foreseeable firearm possession will often reach all members of a robbery crew—even when the robbery is only attempted and even when individual defendants do not personally wield weapons. As such, it offers valuable guidance to prosecutors, defense counsel, and district courts navigating Hobbs Act robbery, attempt, and conspiracy cases in the modern evidentiary landscape.