United States v. Gunn: Consecutive Sentences for Hobbs Act Conspiracy and Attempt Beyond the 20‑Year Maximum

I. Introduction

The Second Circuit’s decision in United States v. Gunn, No. 24‑2430‑cr (2d Cir. Dec. 19, 2025), squarely addresses whether a federal district court may impose consecutive sentences for two inchoate Hobbs Act offenses—conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery—arising from the same planned robbery, even when the combined term exceeds the Hobbs Act’s 20‑year maximum for a single violation.

The court holds that it may. Relying on the general consecutive‑sentencing statute, 18 U.S.C. § 3584(a), and on longstanding doctrine distinguishing conspiracy and attempt from each other and from completed crimes, the panel (Leval, Lynch, Sullivan, JJ.) concludes that Congress has authorized separate punishment for Hobbs Act conspiracy and Hobbs Act attempt, and that Prince-style “merger” does not apply. The decision also resolves several important sentencing‑guidelines questions arising after the vacatur of the defendant’s firearm‑murder convictions under 18 U.S.C. §§ 924(c) and 924(j) in light of Johnson, Davis, and Taylor.

This commentary examines the opinion’s background, the central holding on consecutive sentencing, the treatment of the defendant’s pro se sentencing challenges, and the broader implications for Hobbs Act prosecutions and federal sentencing practice.

II. Factual and Procedural Background

A. The Robbery Crew and the Two Murders

Between 2001 and 2003, Roderick Gunn participated in a robbery crew that targeted narcotics traffickers in order to steal drugs and drug proceeds. Two robberies are central to this appeal:

• The Elmont Robbery (Count Two): a home‑invasion robbery at a residence in Elmont, New York, on October 31, 2002 (the opinion dates it as 2022, but the context indicates an early‑2000s date). Gunn helped plan this robbery but was not present. During the robbery, co‑conspirator Alton Davis shot and killed occupant Stephanie Laing.
• The Wickham Robbery (Count Three): a January 21, 2003 robbery at Gary Grey’s residence on Wickham Avenue in the Bronx. Gunn was present and participated. Davis shot and killed Grey during this robbery.

The crew commonly impersonated law enforcement officers, used firearms, and applied physical violence to obtain information about drug proceeds. The Wickham robbery involved beating and restraining victims with plastic ties, interrogating them about drug money, and searching multiple locations connected to Grey.

B. The Superseding Indictment and 2010 Trial

On August 16, 2007, a superseding indictment charged Gunn and others with multiple offenses relating to the Elmont and Wickham robberies. Gunn was charged in six counts:

• Count One – Conspiracy to commit Hobbs Act robberies of drug dealers, 18 U.S.C. § 1951.
• Count Two – Attempted Hobbs Act robbery (Elmont robbery), 18 U.S.C. §§ 1951, 2.
• Count Three – Attempted Hobbs Act robbery (Wickham robbery), 18 U.S.C. §§ 1951, 2.
• Count Six – Using, carrying, and possessing firearms, discharged during and in relation to the Count One conspiracy and the Count Three attempted robbery (Wickham), 18 U.S.C. §§ 924(c)(1)(A)(iii), 2.
• Count Seven – Aiding and abetting the use of a firearm to commit murder during and in relation to the Count One conspiracy and the Count Three attempted robbery (the killing of Grey), 18 U.S.C. §§ 924(j)(1), 2.
• Count Eight – Conspiracy to distribute and to possess with intent to distribute marijuana (charged at 1,000+ kg), 21 U.S.C. §§ 841(b)(1)(A), 846.

After a joint trial of Gunn and Davis before Judge William Pauley in April 2010:

• The jury acquitted Gunn on Count Two (Elmont attempted Hobbs Act robbery).
• The jury convicted him on Counts One, Three, Six, Seven, and Eight. On Count Eight, the jury convicted on the lesser quantity—100+ kg of marijuana, 21 U.S.C. § 841(b)(1)(B)(vii).

In August 2010, Judge Pauley imposed:

• Life imprisonment on Count Seven (murder with a firearm);
• 20 years each on Counts One and Three;
• 40 years on Count Eight;
• All terms concurrent with each other and with an existing 141‑month federal sentence from a prior firearms/robbery/marijuana case.

C. The § 2255 Motion and Effect of Johnson, Davis, Taylor, and Barrett

In 2014, Gunn filed a motion under 28 U.S.C. § 2255 to vacate his conviction. After the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015), and later decisions—United States v. Davis, 588 U.S. 445 (2019) (invalidating § 924(c)’s residual clause), United States v. Taylor, 596 U.S. 845 (2022) (Hobbs Act attempt not a “crime of violence”), and the Second Circuit’s United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (Hobbs Act conspiracy not a “crime of violence”)—Gunn argued that his § 924(c) and § 924(j) convictions (Counts Six and Seven) were invalid because their predicates (Hobbs Act conspiracy and attempt) were no longer “crimes of violence.”

In October 2022, the government agreed that Counts Six and Seven must be vacated and requested resentencing on the remaining counts. The case, reassigned to Judge Alvin Hellerstein, proceeded as a de novo resentencing.

D. Guidelines Recalculation and 2024 Resentencing

The Probation Office issued a Supplemental Presentence Report (PSR):

• Offense level: 43, using the robbery guideline § 2B3.1 with a cross‑reference to first‑degree murder under § 2B3.1(c) and § 2A1.1 because a death (Grey) resulted.
• Criminal history category: III, based on (1) a 2003 state attempted robbery conviction, and (2) the prior federal conviction.
• Guidelines range: Life imprisonment; but constrained by statutory maximums on the remaining counts.
• Statutory maximum aggregate: 80 years (20+20+40 years for Counts One, Three, Eight respectively).

The government sought the full 80‑year statutory maximum, fully consecutive. Gunn requested a sentence of time served.

At the May 6, 2024 resentencing:

• Judge Hellerstein granted the § 2255 motion and vacated Counts Six and Seven.
• He adopted the PSR’s fact findings and Guidelines calculations.
• He imposed 360 months (30 years), to run consecutive to the undischarged portion of Gunn’s earlier federal sentence, structured as:
  • 180 months (15 years) on Count One,
  • 180 months (15 years) on Count Three, consecutive to Count One,
  • 60 months (5 years) on Count Eight, concurrent with the others.

Gunn did not object to the Guidelines calculation or the structure of the sentence at the hearing.

E. Issues on Appeal

On appeal, Gunn—represented by counsel and supplemented by a pro se brief—raised:

1. Principal issue: Whether the district court erred by imposing consecutive sentences on Hobbs Act conspiracy (Count One) and Hobbs Act attempt (Count Three), when those counts arose from the same robbery and their combined term exceeded the 20‑year statutory maximum for a single Hobbs Act violation. He argued that Congress had not clearly authorized such “pyramiding” of penalties.
2. Pro se sentencing issues:
   1. Improper inclusion of certain prior convictions in his criminal history score.
   2. Improper application of the first‑degree‑murder cross-reference under §§ 2B3.1(c), 2A1.1.
   3. Failure to apply the three‑level reduction for attempt/conspiracy under § 2X1.1(b)(1)–(2).
   4. Failure to consider non‑frivolous sentencing arguments (notably co‑defendant disparity, a downward departure from first‑degree to second‑degree murder, and inadequate explanation for consecutive terms).
   5. Failure to consider Amendment 826 to U.S.S.G. § 1B1.3, limiting use of acquitted conduct as “relevant conduct.”

The Second Circuit affirmed the amended judgment in full.

III. Summary of the Opinion

A. Core Holding on Consecutive Hobbs Act Sentences

The court announces a clear rule:

District courts may impose consecutive sentences for Hobbs Act conspiracy and attempted Hobbs Act robbery, even where the two counts relate to the same robbery and even where the aggregate term exceeds the Hobbs Act’s 20‑year maximum for a single offense.

The panel rejects the argument that, absent clear statutory language specific to the Hobbs Act, the rule of lenity or the Supreme Court’s decision in Prince v. United States, 352 U.S. 322 (1957), forbids consecutive penalties. It interprets Prince narrowly, limiting its “merger” doctrine to statutes that criminalize sequential stages of a single undertaking (e.g., entry and completed robbery under the Federal Bank Robbery Act), and finds that Hobbs Act conspiracy and attempt are not such successive stages but separate offenses with distinct harms.

B. Resolution of Sentencing Guideline Disputes

The court also holds:

• Gunn’s prior state attempted robbery and his prior federal robbery/marijuana conspiracy are properly counted in his criminal history because they are not “relevant conduct”—they were distinct schemes, with different time frames, leadership, and objectives.
• Application of the first‑degree‑murder cross‑reference under §§ 2B3.1(c) and 2A1.1 was proper; Grey’s killing was foreseeably within the scope of the jointly undertaken Wickham robbery, and the court made sufficient findings tying Gunn to the use of loaded firearms and the high risk of lethal violence.
• No three‑level reduction under § 2X1.1(b)(1)–(2) was warranted, because the Wickham robbery conspiracy and attempt came “close enough to fruition” that the offense was substantially completed even though the conspirators ultimately left without drug proceeds.
• The district court adequately considered Gunn’s sentencing arguments and sufficiently explained the reasons for the sentence, including the use of consecutive terms, especially in light of Gunn’s extensive criminal history and the dangerous nature of the robberies.
• Amendment 826 to § 1B1.3, which limits use of acquitted conduct as relevant conduct, did not apply because it was not yet effective as of the May 2024 resentencing.

Because Gunn failed to raise most issues below, review was for plain error, and the court found no error, let alone a clear or obvious one, on any point.

IV. Detailed Analysis

A. Consecutive Sentences for Hobbs Act Conspiracy and Attempt

1. Statutory Framework: § 3584(a) and the Hobbs Act

The starting point is 18 U.S.C. § 3584(a), which governs multiple terms of imprisonment:

“If multiple terms of imprisonment are imposed on a defendant at the same time, the terms may run concurrently or consecutively.”

Section 3584(a) includes a narrow exception: courts may not impose consecutive sentences “for an attempt and for another offense that was the sole objective of the attempt.” That exception is designed to prevent separate stacking of an attempt count with the completed offense when both are punished separately.

In Gunn, however:

• Gunn was sentenced on attempt (Count Three) and conspiracy (Count One), not on attempt and a completed substantive robbery.
• Thus, the statutory bar in § 3584(a)’s last sentence does not apply by its terms.

The Hobbs Act itself, 18 U.S.C. § 1951(a), criminalizes:

• Actual robbery or extortion affecting interstate commerce,
• Attempt to commit such robbery or extortion, and
• Conspiracy to commit such robbery or extortion.

Each carries the same statutory maximum—20 years’ imprisonment. Gunn argued that absent a clear statement from Congress, courts should not cumulate sentences for multiple sub‑offenses of a single statute, especially where they arise out of the same underlying robbery.

The Second Circuit rejects any such “clear statement” requirement, reasoning that § 3584(a) itself is the relevant congressional authorization, and that nothing in the Hobbs Act’s text or structure suggests that conspiracy and attempt are treated as a single offense for punishment purposes.

2. Distinguishing Prince and Its “Merger” Doctrine

Gunn’s principal doctrinal challenge drew on Prince v. United States, 352 U.S. 322 (1957). In Prince, the Supreme Court interpreted the Federal Bank Robbery Act, which criminalized:

• Entering a bank with intent to commit robbery, and
• Committing the actual bank robbery,

with both provisions carrying a 20‑year maximum. The Court held that where both entry‑with‑intent and completed robbery are charged and the robbery is actually consummated, the entry offense “merges” into the completed robbery and does not support an additional, consecutive sentence. The Court reasoned that Congress enacted the “entry” offense to ensure punishment up to 20 years even when the robbery objective was frustrated prior to completion—not to authorize cumulative penalties for entry plus robbery.

From this, Gunn argued that Hobbs Act conspiracy and attempt, as inchoate forms of the same underlying robbery offense, should likewise “merge” for sentencing purposes. The Second Circuit rejected this analogy, emphasizing:

• Prince’s narrow scope. The Second Circuit has long treated Prince as limited to statutes designed to criminalize “successive stages of a single undertaking.” United States v. Weingarten, 713 F.3d 704, 709–10 (2d Cir. 2013). It applies when Congress has clearly structured a statute to capture a continuum—e.g., preparatory entry and completed robbery—where the lesser offense is plainly intended as a fallback when the greater is not achieved.
• Prior applications of Prince are narrow and specific.
  • In United States v. Valot, 481 F.2d 22 (2d Cir. 1973), the court applied Prince to possession of drugs on an aircraft and illegal importation, where possession existed only during the flight that effectuated the importation; possession was merely the stage preceding importation.
  • In United States v. Gore, 154 F.3d 34 (2d Cir. 1998), the court applied a merger rule to possession with intent to distribute and distribution when the distribution itself was the only proof of possession; possession was not an independent harm but the immediately preceding stage of the distribution.
• Prince does not apply to distinct offenses that can be committed independently. In Weingarten, the court refused to apply Prince to two subsections of 18 U.S.C. § 2423—transportation of a minor with intent to engage in criminal sexual activity (§ 2423(a)) and travel with intent to engage in illicit sexual conduct (§ 2423(b))—because each could be completed without the other and they addressed distinct forms of harmful conduct.

Applying this framework, the Second Circuit concludes that Hobbs Act conspiracy and attempt do not fall within the Prince‑type “successive stages of a single undertaking”:

• A conspiracy may exist—and be fully completed—without any attempt ever occurring (e.g., agreement and planning that is abandoned before any overt act).
• An attempt may occur without a conspiracy at all (e.g., a lone actor who takes a substantial step toward robbery without agreeing with anyone else).

Thus, unlike entry‑with‑intent versus completed robbery in Prince, conspiracy and attempt are independent bases of criminality, not merely staged preludes to a single, integrated offense.

3. The Distinctiveness of Conspiracy and Attempt

The opinion reinforces its conclusion by drawing on the Supreme Court’s and Second Circuit’s jurisprudence on conspiracy and attempt:

• Conspiracy.
  • Iannelli v. United States, 420 U.S. 770, 777 (1975): “the essence of [conspiracy] is an agreement to commit an unlawful act.”
  • United States v. Shabani, 513 U.S. 10, 16 (1994): “the criminal agreement itself is the actus reus.”
  • Callanan v. United States, 364 U.S. 587 (1961): conspiracy and the substantive offense may both be punished; conspiracy is a distinct harm because “collective criminal agreement—partnership in crime—presents a greater potential threat to the public than individual delicts.”
  • Pinkerton v. United States, 328 U.S. 640, 643 (1946): “the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.”
• Attempt.
  • United States v. Ivic, 700 F.2d 51, 66 (2d Cir. 1983) (Friendly, J.): attempt law is concerned with the dangerousness of an actor “manifesting a firm disposition to commit a crime.”
  • United States v. Farhane, 634 F.3d 127, 145 (2d Cir. 2011): attempt requires (a) intent to commit the object crime, and (b) a substantial step toward its commission.

Taken together, these authorities emphasize that:

• Conspiracy punishes the social danger of collective agreement to commit crime.
• Attempt punishes individual conduct that has moved dangerously close to completion of a crime.

In Callanan, the Supreme Court specifically held that a defendant could receive consecutive sentences under the Hobbs Act for (i) substantive extortion and (ii) conspiracy to commit extortion. The Court regarded Congress as having a “tacit purpose…to maintain a long‑established distinction between offenses essentially different,” and saw no indication that conspiracy should merge into the completed offense for punishment purposes.

The Second Circuit in Gunn extends this logic: if substantive Hobbs Act extortion and Hobbs Act conspiracy can be punished consecutively, then so too can Hobbs Act attempt and Hobbs Act conspiracy, because they likewise embody different social harms. The defendant’s effort to distinguish Callanan as involving a substantive offense (rather than an attempt) is rejected as unpersuasive.

4. No Special “Clear Statement” Requirement and No Lenity Trigger

Gunn argued that, when multiple subsections of a statute cover inchoate versions of the same underlying offense, courts should assume Congress did not intend cumulative punishment absent clear textual authorization. The panel declines to impose such a presumption, pointing out:

• Section 3584(a) already supplies the general rule that multiple terms “may” run consecutively, subject only to specific contrary statutory provisions.
• Congress has “not prohibited consecutive sentences for attempts and conspiracies that have the same object” (United States v. Rahman, 189 F.3d 88, 158 n.36 (2d Cir. 1999)).
• The Hobbs Act contains no textual indication that its conspiracy and attempt provisions are meant to be merged or limited to concurrent sentencing.

Gunn also invoked the rule of lenity, which resolves genuine statutory ambiguity in favor of the defendant. The Second Circuit holds, consistent with its unpublished decision in United States v. Collymore, No. 23‑7333, 2024 WL 4707184 (2d Cir. Nov. 7, 2024), that:

The rule of lenity “only serves as an aid for resolving an ambiguity; it is not to be used to beget one.” (Callanan, 364 U.S. at 596).

Because, in the court’s view, the statutory scheme is clear enough—§ 3584(a) allows consecutive sentences, and nothing in the Hobbs Act says otherwise—there is no “grievous ambiguity” requiring lenity.

5. Standard of Review and Plain Error

Ordinarily, a sentencing court’s decision to impose concurrent versus consecutive sentences is reviewed for abuse of discretion. But Gunn did not object below, so the Second Circuit applies plain‑error review (Fed. R. Crim. P. 52(b)): the error must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The court also rejects Gunn’s attempt to invoke a “relaxed” plain‑error standard (used very sparingly when a defendant had no notice of a sentencing issue), noting that:

• The PSR, the government’s sentencing memorandum, and Gunn’s own submission all contemplated consecutive sentences on Counts One and Three.
• Gunn had full opportunity to object at resentencing and did not.

Even under ordinary plain‑error review, the court finds no legal error at all, much less a clear or obvious one. The holding that consecutive sentences are authorized for Hobbs Act conspiracy and attempt is thus both the substantive rule and the underpinning for rejecting the plain‑error challenge.

6. Aggregate Sentence Exceeding the Single‑Count Maximum

Finally, Gunn argued that even if consecutive sentences are technically permissible, the aggregate sentence should not exceed the Hobbs Act’s 20‑year maximum “for a single violation of the Act.” The panel’s answer follows straightforwardly from its analysis:

• Conspiracy and attempt are distinct violations of § 1951, not parts of a single unitary offense.
• Each carries its own 20‑year maximum, so cumulative exposure of 40 years for the two counts is fully consistent with statutory limits.

The 15‑year + 15‑year scheme actually imposed (30 years total on the Hobbs Act counts) was thus comfortably within the combined statutory ceiling, even before considering Count Eight.

B. Criminal History Calculation and “Relevant Conduct”

1. Legal Framework: §§ 4A1.2 and 1B1.3

The Guidelines count “prior sentences” in determining criminal history, but only if those sentences are for conduct not part of the instant offense. See U.S.S.G. § 4A1.2(a)(1). Conduct is part of the instant offense if it is “relevant conduct” under § 1B1.3. For conspiracy‑type offenses, relevant conduct includes other acts that are part of “the same course of conduct or common scheme or plan as the offense of conviction.” § 1B1.3(a)(2).

The Second Circuit reviews the district court’s determination that prior convictions are not part of the same course of conduct for clear error (United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015)).

2. The Prior State Attempted Robbery

Gunn had a New York state conviction for a March 2003 attempted robbery with co‑conspirator Ronald Knibbs on West 111th Street in Manhattan. The PSR described Gunn and Knibbs confronting a victim, threatening with a pistol, forcing entry, and stealing a cell phone.

Gunn argued this was part of the overall Hobbs Act drug‑robbery conspiracy. The Second Circuit disagrees, noting:

• The incident occurred at a different time and place, involved different victims, and featured a different scope than the Elmont and Wickham robberies.
• Gunn cited an information against Knibbs that allegedly “posited” the 111th Street robbery was part of the Gunn conspiracy, but the opinion notes that the information does not actually establish that connection, and in any event, the government’s charging choices in a different case cannot expand the scope of the conspiracy as charged here.
• Use of a handgun that later appears in the Hobbs Act case does not, by itself, transform the earlier crime into relevant conduct.

The court therefore upholds the district court’s treatment of the state conviction as a separate, countable prior sentence.

3. The Prior Federal Robbery/Marijuana Conspiracy

In an earlier federal case (United States v. Gunn (“Gunn I”), 366 F. App’x 215 (2d Cir. 2010)), Gunn had pleaded guilty to a conspiracy to rob drug dealers and distribute marijuana, based on robberies occurring from summer 2001 to summer 2002—before the Elmont and Wickham events—and largely involving impersonation of police without resulting murders.

Gunn argued that this earlier conspiracy was simply the initial phase of what later became the Hobbs Act conspiracy in the present case, and thus “relevant conduct.” The Second Circuit points out:

• In Gunn I, it already held that the conspiracy in the prior case and the conspiracy in this case were “factually distinct, independent robbery conspiracies carried out at different times, by different means, under different leadership.”
• The Korfant multi‑factor test for “same conspiracy” (overlap in participants, time, means, objectives, geographic scope, overt acts, interdependence) led the court to conclude they were separate conspiracies—a conclusion that tracks the concept of “same course of conduct or common scheme or plan” in § 1B1.3.
• The fact that Gunn did not reveal the Elmont and Wickham robberies when entering his cooperation agreement in the first case strongly indicated that those robberies were not, in practice, part of the earlier conspiracy addressed in that case.

The opinion accordingly sustains the district court’s use of Gunn’s prior federal sentence in calculating his criminal history, finding no clear error.

C. Murder Cross‑Reference: §§ 2B3.1(c) and 2A1.1

1. Guidelines Mechanism

Section 2B3.1 is the robbery guideline. Subsection (c) provides a cross‑reference:

If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111, apply § 2A1.1 (First Degree Murder).

Under § 2A1.1, the base offense level is 43 (life, absent statutory limits). Under § 1B1.3(a)(1)(B), in the case of “jointly undertaken criminal activity,” a defendant is accountable for “all acts and omissions of others that were within the scope of the jointly undertaken criminal activity” and reasonably foreseeable to the defendant.

The Second Circuit’s precedent in United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995), requires two particularized findings to hold a defendant accountable for others’ acts: (1) the act was within the scope of the defendant’s agreement; and (2) it was reasonably foreseeable.

2. Application to Grey’s Murder

Gunn contended that the district court failed to make sufficiently particularized findings that Grey’s murder fell within the scope and foreseeability of his agreement with Davis.

The Second Circuit points to the resentencing record, where Judge Hellerstein found:

• Gunn “knew that guns were used, he knew guns were available, he knew the guns were loaded.”
• The robbery target (a narcotics trafficker’s home) involved an inherently high risk: “There is no riskier activity than going into a den of narcotics criminals and seeking to take away their drugs and their money. The probability of violence, the probability of use of a gun, of someone getting killed, is high.”
• The judge concluded that Gunn aided and abetted the use of firearms in the Wickham robbery: “If you have a firearm, you intend to use the firearm,” and “That was the plan.”
• The PSR—adopted by the court—recited that Davis told co‑conspirator Needham in advance that he intended to kill Grey, and that Needham relayed that plan to Gunn.

These findings adequately addressed both scope (murder as part of the robbery plan) and foreseeability (use of a loaded gun in a violent home invasion of drug dealers, combined with explicit discussion of killing Grey). The Second Circuit holds that applying the first‑degree‑murder cross‑reference was not error, much less plain error.

Importantly, the court affirms that the vacatur of the § 924(j) murder‑with‑a‑gun conviction did not bar consideration of the killing as relevant conduct. Pre‑Amendment‑826, the Guidelines permitted the use of conduct underlying reversed or vacated counts in calculating the offense level, so long as the conduct was proved by a preponderance and satisfied § 1B1.3.

D. Denial of § 2X1.1(b) Attempt/Conspiracy Reduction

1. The Guidelines Provision

Section 2X1.1 deals with attempt, solicitation, and conspiracy when no special guideline applies. Subsections (b)(1) and (b)(2) provide:

• § 2X1.1(b)(1) – For attempts, decrease the offense level by 3 levels, unless the defendant completed all the acts believed necessary for successful completion of the substantive offense or was about to do so but for some interruption beyond the defendant’s control.
• § 2X1.1(b)(2) – For conspiracies, similarly decrease by 3 levels unless the conspirators completed or were about to complete all such acts (counting co‑conspirators’ acts).

The Second Circuit’s articulation in United States v. Medina, 74 F.3d 413, 418 (2d Cir. 1996), and reaffirmed in United States v. Downing, 297 F.3d 52, 62 (2d Cir. 2002), is that the key question is whether the attempt or conspiracy “ripened into a substantially completed offense or came close enough to fruition.” The focus is on the defendant’s conduct, not on whether the ultimate criminal objective (e.g., actually obtaining the money) was achieved.

2. Wickham Robbery: “Close Enough to Fruition”

At the Wickham robbery, the evidence showed that:

• Davis and Gunn entered Grey’s home armed.
• They assaulted Grey and Mark Wright, tied them up, and interrogated them about drug money.
• They searched the house and then dispatched Needham and Knibbs to search Grey’s girlfriend’s home when told that money might be stored there.
• During the course of these efforts, Davis shot and killed Grey.

Although the crew ultimately found no drug proceeds, the Second Circuit holds that the robbery was sufficiently executed that the conspiracy and attempt had “come close enough to fruition” that § 2X1.1(b)’s 3‑level reduction was unavailable. The attempt was essentially a completed home‑invasion robbery that failed only in its ultimate objective of acquiring cash.

Thus, the district court committed no error in declining to grant a § 2X1.1 reduction.

E. Sentencing Arguments and Explanation

1. Co‑Conspirator Disparity and § 3553(a)(6)

Gunn argued that his sentence was unreasonable in light of sentencing disparities between himself and his co‑conspirators Needham and Knibbs, who had been released. He invoked 18 U.S.C. § 3553(a)(6), which directs courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

The Second Circuit reaffirms its settled rule from United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008): § 3553(a)(6) is primarily concerned with national sentencing uniformity, not equalizing co‑defendants’ sentences in the same case. Courts may consider co‑defendant disparities, but they are not required to do so, and such disparities do not by themselves render a sentence unreasonable.

Moreover, Needham and Knibbs were not similarly situated to Gunn: they cooperated with the government and testified at trial, entitling them to substantial consideration under § 5K1.1 and § 3553(a) that Gunn did not earn.

2. Downward Departure to Second‑Degree Murder

Gunn sought a downward departure from the first‑degree‑murder guideline to the second‑degree‑murder guideline. The Second Circuit points out that:

• Generally, an appellate court cannot review a district court’s refusal to grant a downward departure, absent evidence that the court mistakenly believed it lacked authority to depart or that the sentence is otherwise illegal (United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006)).
• Nothing in the record suggests that Judge Hellerstein misunderstood his authority; to the contrary, he was aware of the option and simply declined it, based on the seriousness of the conduct.

Accordingly, there was nothing appealable or erroneous in the refusal to depart.

3. Explanation for Consecutive Sentences

Gunn further claimed that the court inadequately explained its decision to make Counts One and Three consecutive. The record, however, shows otherwise:

• Judge Hellerstein described Gunn as “a one‑man crime wave who has gone through life in this country causing havoc, ruin, and pain.”
• He emphasized Gunn’s “intimate[]” involvement in multiple violent robberies.
• He acknowledged the Guidelines and statutory maximums and scaled back the maximum requested by the government, settling on 30 years rather than 80.

Given these articulated reasons—particularly Gunn’s extensive violent criminality and the two murders associated with the crew—there was no procedural error in the explanation for consecutive sentences.

F. Amendment 826 and Acquitted Conduct

1. Content of Amendment 826

Amendment 826 to U.S.S.G. § 1B1.3, effective November 1, 2024, modifies the definition of “relevant conduct” by excluding from § 1B1.3(c) any conduct:

“for which the defendant was…acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.”

This amendment significantly narrows sentencing courts’ ability to rely on conduct underlying an acquitted charge when determining the Guidelines range.

2. Why Amendment 826 Did Not Apply in Gunn

Gunn argued that the court should have applied Amendment 826 in calculating his Guidelines range after vacating the § 924(c)/(j) counts, effectively treating him as “acquitted” of those offenses and thereby limiting use of the associated conduct.

The Second Circuit sidesteps doctrinal subtleties (such as whether vacatur for legal invalidity equals “acquittal”) by relying on timing:

• Amendment 826 became effective November 1, 2024.
• Gunn’s resentencing occurred in May 2024, before the effective date.
• Sentencing courts ordinarily apply the Guidelines in effect at the time of sentencing, absent ex post facto concerns. At the time, Amendment 826 did not yet govern.

Thus, the district court properly declined to apply Amendment 826, and there was no error in continuing to consider conduct underlying the vacated firearm counts (provided it met the pre‑Amendment standards).

V. Simplifying Key Legal Concepts

1. Hobbs Act Robbery, Attempt, and Conspiracy

• Hobbs Act robbery (18 U.S.C. § 1951): Taking or attempting to take property from another, against their will, by actual or threatened force, violence, or fear, in a way that affects interstate commerce.
• Attempt: When someone intends to commit Hobbs Act robbery and takes a substantial step toward committing it (e.g., entering the victim’s home armed and demanding drug money), even if the robbery is not completed.
• Conspiracy: An agreement between two or more people to commit Hobbs Act robbery. The crime is the agreement itself (often with at least one overt act to further it), even if no robbery or attempt ever occurs.

2. Inchoate Offenses

Attempt and conspiracy are “inchoate” offenses—crimes that punish dangerous preparation or agreement before the full crime is completed. Courts treat them as independent crimes because they embody distinct risks:

• Conspiracy captures the special dangers of group criminal planning.
• Attempt captures the danger of an actor who has gone beyond mere preparation and has begun to execute the crime.

3. Plain Error

Plain error is a strict standard of appellate review applied when a defendant did not object in the trial court. To win, the defendant must show:

1. There was an error.
2. The error is “plain”—clear or obvious in light of the law at the time of appeal.
3. The error affected the defendant’s substantial rights (typically, that it affected the outcome).
4. The error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

In Gunn, the court concluded there was no error at all in the legal conclusions challenged, so the analysis effectively stopped at step one.

4. Rule of Lenity

The rule of lenity is a tie‑breaker in criminal statutory interpretation: when, after using all the usual tools of interpretation, a criminal statute remains grievously ambiguous, courts must resolve the ambiguity in favor of the defendant. It does not apply simply because there are plausible competing readings; it applies only where Congress’s intent cannot be discerned with reasonable confidence.

Here, the court held that the general authorization for consecutive sentencing in § 3584(a), combined with the distinct nature of conspiracy and attempt and the absence of any contrary signal in the Hobbs Act, left no such “grievous ambiguity.” Lenity therefore did not come into play.

5. Guidelines “Relevant Conduct”

“Relevant conduct” under U.S.S.G. § 1B1.3 is the mechanism that allows (and often requires) sentencing courts to consider conduct beyond the precise offense of conviction when calculating the offense level:

• Other acts that were part of the same scheme or course of conduct.
• In jointly undertaken activity, reasonably foreseeable acts of others in furtherance of the jointly undertaken plan.

For conspiracy cases, the key question is often whether additional crimes are truly part of the same conspiracy or common scheme, or are separate ventures. In Gunn, the court found Gunn’s prior criminal episodes were distinct enough to count as separate prior sentences, not as relevant conduct that would be rolled into the instant offense level instead of criminal history.

VI. Impact and Significance

A. Clarification of Consecutive Sentencing Under the Hobbs Act

The central doctrinal impact of United States v. Gunn is to establish, within the Second Circuit, that:

• Hobbs Act conspiracy and Hobbs Act attempt are separate crimes for which consecutive sentences are permissible, even if the two counts arise from the same underlying robbery event.
• The combined sentence may legitimately exceed the 20‑year maximum that applies to any single Hobbs Act count.
• Prince does not impose an implied bar on such cumulative sentences; its “merger” rule remains limited to statutory structures that criminalize sequential stages of a single integrated offense.

This has practical consequences:

• Charging leverage for prosecutors: The government can confidently charge and seek consecutive sentences for both Hobbs Act conspiracy and attempt where circumstances warrant, creating substantial exposure (up to 40 years for two counts) even without § 924(c)/(j) enhancements.
• Sentencing discretion for judges: District courts retain full discretion under § 3584(a) and § 3553(a) to decide whether to stack or align terms, without fear that such stacking is categorically unauthorized.

B. Constraining the Reach of Prince

The opinion reinforces the Second Circuit’s consistently narrow reading of Prince, confining its merger principle to:

• statutes explicitly crafted to cover successive steps of one overarching crime, and
• situations where the lesser offense is plainly a fallback when the greater is not achieved.

This clarification limits defendants’ ability to extend Prince to broader arrays of multi‑subsection statutes, including those—like the Hobbs Act—where Congress defined distinct inchoate offenses alongside the completed crime.

C. Continuing Importance of Relevant Conduct and Murder Cross‑References

The case demonstrates the enduring significance of guidelines “relevant conduct” doctrine:

• Even after the vacatur of § 924(c)/(j) counts, serious violent consequences (such as murder) can and will be accounted for via cross‑references like § 2B3.1(c)–§ 2A1.1, so long as they are within the scope and foreseeability of the jointly undertaken crime.
• Defendants cannot easily avoid such enhancements simply because specific counts tied to the violent act are vacated on legal grounds (e.g., invalid predicate “crime of violence”).

At the same time, by highlighting—and rejecting—Gunn’s invocation of forthcoming Amendment 826, the opinion flags an area of evolving law: future sentencings occurring after November 1, 2024 will be more constrained in their use of acquitted conduct as “relevant conduct,” potentially making it harder to replicate the precise sentencing structure imposed on Gunn in later cases if key conduct has been subject to an actual acquittal.

D. Guidance on When Separate Conspiracies and Prior Convictions Are Distinct

The court’s reliance on Gunn I to distinguish the earlier federal conspiracy from the present Hobbs Act conspiracy underscores how:

• Overlap in participants and general modus operandi (e.g., robbing drug dealers) is insufficient to establish a single, continuing overarching conspiracy.
• Divergences in timeframe, leadership, objectives, and violence level can justify treating conspiracies as separate—both for double jeopardy and for Guidelines “relevant conduct” and criminal history purposes.

This provides practical guidance to both prosecutors and defense counsel in arguing whether earlier offenses should be treated as part of the same course of conduct or as distinct prior crimes.

VII. Conclusion

United States v. Gunn establishes an important sentencing precedent in the Second Circuit: district courts may impose consecutive sentences for Hobbs Act conspiracy and Hobbs Act attempt, even where they arise from the same underlying robbery and the combined sentence exceeds the Hobbs Act’s 20‑year cap for a single count. The court grounds this holding in § 3584(a), in the distinct harms addressed by conspiracy and attempt, and in a narrowly cabined reading of Prince.

Beyond the main holding, the decision reaffirms:

• the limited scope of the Prince merger doctrine;
• the breadth of “relevant conduct” and the continued availability of murder cross‑references for foreseeable co‑conspirator killings;
• the strict standards governing plain‑error review of unpreserved sentencing claims; and
• the non‑retroactive application of Amendment 826 to pre‑November‑2024 sentencings.

Collectively, these rulings reinforce the substantial sentencing exposure that remains available in Hobbs Act robbery cases even after Johnson, Davis, and Taylor have dismantled many § 924(c)/(j) “crime of violence” predicates. They also clarify doctrinal boundaries that will shape future litigation over cumulative punishments, relevant conduct, and the scope of inchoate liability in federal criminal law.