United States v. Powell (2d Cir. 2025): Nonprecedential Guidance on Composite Surveillance Videos, Excited-Utterance Identifications, and Upward Variances in Violent Robberies

Introduction

This commentary analyzes the Second Circuit’s summary order in United States v. Powell, No. 24-1461 (2d Cir. Oct. 29, 2025), affirming a conviction and 288-month sentence for Hobbs Act robbery and using a firearm in furtherance of a crime of violence. Although the disposition is a nonprecedential summary order (and thus not binding precedent under the court’s rules), it offers practical guidance on three recurring issues:

• Whether Hobbs Act robbery remains a “crime of violence” that can support a 18 U.S.C. § 924(c) conviction in the Second Circuit;
• When the government may introduce an edited, sequenced compilation of existing surveillance videos and evidence of an eyewitness’s emotional reaction tied to an excited-utterance identification; and
• How appellate courts review both procedural and substantive challenges to substantial upward variances where the offense conduct resembles attempted murder.

The panel (Judges Leval, Lynch, and Sullivan) rejected Mario Powell’s contentions that his § 924(c) conviction is invalid, that evidentiary rulings admitting a composite video and his mother’s excited-utterance identification were erroneous, and that the district court’s sentence was procedurally and substantively unreasonable. The district court (Judge Paul A. Engelmayer, S.D.N.Y.) imposed an aggregate term of 288 months, reflecting an upward variance on the Hobbs Act count and a consecutive § 924(c) mandatory minimum for discharging a firearm.

Summary of the Opinion

• Section 924(c): The Second Circuit reaffirmed that completed Hobbs Act robbery is a “crime of violence” under § 924(c)’s elements clause, citing binding circuit authority (United States v. Barrett, 102 F.4th 60 (2d Cir. 2024) and United States v. McCoy, 58 F.4th 72 (2d Cir. 2023)).
• Evidentiary Rulings:
  • Composite surveillance video (Exhibit 310): Admission under Rules 401 and 403 was within the district court’s discretion where the compilation simply sequenced already-admitted clips, transparently signaled clip boundaries, and the court issued limiting instructions safeguarding against argumentative use.
  • Mother’s identification and emotional reaction: Testimony describing the mother’s “crying and upset” demeanor upon recognizing Powell in a televised surveillance clip was admissible. The panel emphasized that the emotional context helped the jury evaluate the reliability of her contemporaneous excited-utterance identification, citing the Supreme Court’s rationale in White v. Illinois.
• Sentencing:
  • Procedural reasonableness: No error in the district court’s careful treatment of mental illness under § 3553(a) or in denying acceptance-of-responsibility credit when Powell went to trial; the court did not penalize the exercise of the right to trial but declined to extend leniency.
  • Substantive reasonableness: The upward variance—resulting in a 168-month sentence on the robbery count, 90 months above the high end of the Guidelines range—was justified by the extreme violence (nine shots, life-altering injuries), which the court characterized as “in human terms” attempted murder.
• Disposition: Affirmed in full.

Analysis

Precedents Cited and Their Influence

• United States v. Barrett, 102 F.4th 60 (2d Cir. 2024), cert. granted on other grounds, 145 S. Ct. 1307 (2025), and United States v. McCoy, 58 F.4th 72 (2d Cir. 2023), cert. denied, 144 S. Ct. 115 (2023). The panel treated these decisions as foreclosing Powell’s contention that completed Hobbs Act robbery is not a crime of violence under § 924(c). While the Supreme Court granted certiorari in Barrett “on other grounds,” the Second Circuit’s elements-clause holding remains binding circuit law unless and until displaced.
• United States v. Skelos, 988 F.3d 645 (2d Cir. 2021), and United States v. Coppola, 671 F.3d 220 (2d Cir. 2012). These cases underscore the deferential abuse-of-discretion standard for evidentiary rulings and the district court’s superior vantage to assess relevance (Rule 401) and to balance probative value against unfair prejudice (Rule 403).
• United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005). The panel distinguished this “trial management” decision—disapproving argumentative interim summations after each witness—from the admission of a single composite exhibit accompanied by careful limiting instructions.
• United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992), and United States v. Gahagen, 44 F.4th 99 (2d Cir. 2022). These cases support the use of limiting instructions to cure potential prejudice and recognize the admissibility of composite or excerpted surveillance footage when fairly presented.
• White v. Illinois, 502 U.S. 346 (1992). Cited for the reliability rationale of excited utterances—statements made under the stress of excitement may be especially weighty—supporting the admission of the mother’s identification with testimony describing her distressed state.
• United States v. Vargas, 961 F.3d 566 (2d Cir. 2020); United States v. Cavera, 550 F.3d 180 (2d Cir. 2008); United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). These cases outline the framework for reviewing sentencing procedural reasonableness (including de novo review for legal issues and clear-error review for factual findings) and recognizing procedural errors such as ignoring § 3553(a) factors, relying on clearly erroneous facts, or violating applicable law.
• United States v. Whitten, 610 F.3d 168 (2d Cir. 2010), and United States v. DiMassa, 117 F.4th 477 (2d Cir. 2024). These decisions draw the critical distinction between impermissibly penalizing a defendant for going to trial and permissibly withholding leniency for lack of acceptance of responsibility.
• Gall v. United States, 552 U.S. 38 (2007); Irizarry v. United States, 553 U.S. 708 (2008); United States v. Rigas, 583 F.3d 108 (2d Cir. 2009); United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012). The panel relied on these authorities for the substantive-reasonableness standard—highly deferential review; no presumption of unreasonableness for out-of-Guidelines sentences; and a focus on whether the district court abused its discretion in weighing § 3553(a) factors to justify the variance.

Legal Reasoning

I. Section 924(c) Challenge

Powell’s threshold attack on his § 924(c) conviction rested on the premise that Hobbs Act robbery is not a “crime of violence.” The panel rejected that argument as foreclosed by circuit precedent. In the wake of decisions like United States v. Davis (invalidating § 924(c)’s residual clause) and United States v. Taylor (holding attempted Hobbs Act robbery is not a crime of violence), the Second Circuit has repeatedly held that completed Hobbs Act robbery qualifies under the elements clause, § 924(c)(3)(A). Barrett and McCoy control this issue; the grant of certiorari in Barrett “on other grounds” did not undermine its binding force on this point.

II. Evidentiary Rulings

A. Composite Surveillance Compilation (Exhibit 310)

The government introduced a compilation of nine surveillance clips (already admitted), spliced into a sequence with speed changes and freeze frames, and blank slides delineating clip boundaries. The defense argued irrelevance because the jury did not “need” a compilation and prejudice because the compilation amounted to a mid-trial argumentative summary.

The panel affirmed admission:

• Relevance (Rule 401): Evidence is relevant if it has any tendency to make a fact more or less probable. The compilation made the identification question easier to evaluate by organizing short, disparate clips into a coherent sequence. The “need” for the compilation is not the standard; any tendency suffices.
• Unfair Prejudice (Rule 403): The district court took specific steps to mitigate risk:
  • Required the government to avoid argumentative narration (no references to “the defendant” or even “robbery suspect” when describing the person in the videos);
  • Gave limiting instructions that the sequence reflected only the government’s contentions and that the jury must independently determine sequence and identity; and
  • Maintained transparency by signaling where each original clip began and ended.
  With those guardrails, the compilation’s probative value was not substantially outweighed by any unfair prejudice.
• Distinguishing Yakobowicz: That case condemned a trial management practice—argumentative interim summations after each witness—not the evidentiary use of a single, carefully cabined exhibit. The panel stressed the difference between argument and evidence, and credited the trial court’s instructions in preserving that line.
• Consistency with Gahagen and Pitre: Courts have permitted excerpted or composite surveillance materials, and limiting instructions are an established tool to cure potential prejudice.

Footnote point: The defense also suggested that by telling jurors the sequence was the government’s theory, the court gave the prosecution’s view undue imprimatur. The panel rejected that argument, noting the defense had itself sought a limiting instruction and had not objected to the wording at trial; in context, the instruction emphasized the jury’s independent role.

B. Mother’s Excited-Utterance Identification and Emotional Demeanor

A witness (the defendant’s then-brother-in-law) recounted that Powell’s mother became “crying and upset” upon seeing a Bronx 12 news segment showing surveillance footage from the shooting; she contemporaneously identified the person in the clip as her son. The defense challenged the emotional-demeanor testimony under Rule 403, arguing it served only to inflame.

The panel affirmed admission:

• Excited utterance and reliability: The emotional context is probative of why a contemporaneous statement bears special reliability. White v. Illinois explains that utterances made in the heat of excitement, without time for reflection, can justifiably carry more weight with factfinders. The mother’s distress contextualized her real-time identification, assisting jurors in deciding whether to credit it.
• Balancing under Rule 403: The probative value of contextualizing an excited-utterance identification was not substantially outweighed by unfair prejudice. The statement occurred spontaneously in a non-testimonial setting (a family home, during a news broadcast), further reducing constitutional concern.

III. Sentencing

A. Procedural Reasonableness

Powell argued the district court (1) inadequately weighed his mental illness under § 3553(a) and (2) improperly penalized his exercise of the right to trial by considering his failure to plead guilty.

• Mental illness: The court expressly recognized Powell’s mental health as “far and away the most important” mitigating factor and explained why, despite impairment, the offense conduct evinced functional decision-making (planning, execution, evasion). This factual assessment was not clearly erroneous.
• Acceptance of responsibility: The court did not penalize Powell for going to trial; it declined to grant leniency for acceptance of responsibility—an approach authorized by Whitten and DiMassa. The judge explicitly acknowledged Powell’s constitutional prerogative to stand trial and his presumption of innocence; the ruling was a refusal to extend a benefit, not the imposition of a penalty.

B. Substantive Reasonableness

The 168-month sentence on the Hobbs Act count fell 90 months above the Guidelines high end; a consecutive 120-month term on the § 924(c) count (discharge of a firearm) yielded the 288-month aggregate. Under Gall and Irizarry, out-of-range sentences are not presumptively unreasonable; the question is whether the district court abused its discretion in applying § 3553(a).

Here, the court thoroughly justified the variance:

• Nature and circumstances: The crime was “vicious,” “gratuitous,” and akin to attempted murder (nine shots, permanent injury), inflicting extraordinary harm on an innocent victim. The court found the Guidelines “badly understate[d]” the seriousness given the human reality.
• History and characteristics: Although Powell lacked an extensive criminal record, the court found a pattern of violence during pretrial detention raised incapacitation concerns.
• Mitigation: The court credited mental illness, harsh COVID-era pretrial confinement, and immigration-related hardships, and still found a marked variance warranted by the offense’s severity.

Given the deferential standard (Rigas; Broxmeyer), the sentence was not “shockingly high” or otherwise unsupportable; the variance was adequately reasoned and tied to § 3553(a)’s objectives.

Impact and Practical Significance

While this is a summary order without precedential effect, it offers concrete guidance for practitioners and trial courts in the Second Circuit:

• Section 924(c):
  • Completed Hobbs Act robbery remains a valid predicate “crime of violence” under the elements clause in the Second Circuit. Defense challenges to § 924(c) on this ground continue to face steep headwinds absent a change from the Supreme Court or an en banc ruling.
  • Note the Supreme Court’s grant of certiorari in Barrett on other grounds; practitioners should track developments but, for now, Barrett and McCoy control.
• Composite Surveillance Evidence:
  • Edited, sequenced compilations of already-admitted clips can be admissible under Rules 401/403 when accuracy and transparency are ensured:
    • Ensure clear boundaries between clips (e.g., blank slides or other markers);
    • Eschew argumentative labeling or narration; and
    • Request (or propose) limiting instructions emphasizing that sequence and identity are for the jury.
  • Objectors should focus on specific inaccuracies, distortions, or genuinely unfair prejudice—not mere “redundancy” or the fact that the compilation aids the jury’s synthesis.
• Excited-Utterance Identifications:
  • Describing a declarant’s emotional state when making an excited utterance can be probative and admissible, helping jurors assess reliability. Rule 403 does not bar such context per se; the key is whether its probative value is substantially outweighed by unfair prejudice.
  • Because statements to private parties in non-testimonial contexts generally do not trigger Confrontation Clause barriers post-Crawford, excited-utterance identifications relayed by another witness may be admissible even if the declarant does not testify, provided Rule 803(2) is satisfied.
• Sentencing Practice:
  • Upward variances may be justified where violent robbery conduct in “human terms” amounts to attempted murder, particularly when § 924(c) removes certain weapon enhancements from the underlying offense guideline and can depress the advisory range.
  • Courts may deny acceptance-of-responsibility credit without violating the right to trial, so long as they do not penalize the defendant for going to trial and instead merely withhold leniency for lack of contrition.
  • Meaningful engagement with mental illness and other mitigating factors is essential; appellate courts will defer to well-explained findings and balancing under § 3553(a).

Complex Concepts Simplified

• Hobbs Act Robbery (18 U.S.C. § 1951): Federal robbery affecting interstate commerce; often charged where commerce, business, or supply chains are implicated.
• Section 924(c): Adds mandatory, consecutive prison time for using or carrying a firearm “during and in relation to” a crime of violence or drug trafficking crime. Discharging the firearm triggers a 10-year mandatory minimum consecutive term.
• Crime of Violence (Elements Clause): An offense that has as an element the use, attempted use, or threatened use of physical force against a person or property. After Davis, the residual clause is invalid; courts focus on elements.
• Rule 401 (Relevance): Evidence is relevant if it has any tendency to make a fact more or less probable.
• Rule 403 (Unfair Prejudice): Even relevant evidence may be excluded if its probative value is substantially outweighed by risks like unfair prejudice or confusing the issues.
• Excited Utterance (Rule 803(2)): A hearsay exception for statements relating to a startling event made while the declarant is under the stress of excitement caused by the event. The emotional state can be part of the reliability calculus.
• Standards of Review:
  • Abuse of discretion: Highly deferential; applies to evidentiary rulings and substantive sentencing review.
  • Clear error: Applies to factual findings; the appellate court will not reverse unless left with a definite and firm conviction that a mistake has been made.
  • De novo: No deference; applies to legal questions, including Guidelines interpretations.
• Procedural vs. Substantive Reasonableness in Sentencing:
  • Procedural: Did the court follow correct procedures (calculate the Guidelines, consider § 3553(a), avoid clearly erroneous facts, explain the sentence)?
  • Substantive: Is the sentence within the range of permissible decisions given the § 3553(a) factors? Out-of-range sentences are not presumptively unreasonable.
• Upward Variance: A sentence above the advisory Guidelines range; permissible if justified by § 3553(a) factors and adequately explained.
• Acceptance of Responsibility (U.S.S.G. § 3E1.1): Provides a reduction for those who clearly demonstrate acceptance; withholding this reduction is not the same as penalizing the exercise of the right to trial.
• Summary Order (2d Cir. Local Rule 32.1.1): Nonprecedential decision that may be cited under Fed. R. App. P. 32.1 with appropriate notation and service requirements.

Conclusion

United States v. Powell offers a clear—if nonprecedential—portrait of how the Second Circuit applies settled law to contemporary trial and sentencing controversies in violent robbery cases. The court:

• Reaffirmed that completed Hobbs Act robbery remains a valid § 924(c) predicate in the Second Circuit;
• Approved the careful use of edited, sequenced composite surveillance videos when accompanied by transparent presentation and limiting instructions, and permitted testimony describing a witness’s emotional state to contextualize an excited-utterance identification;
• Upheld a significant upward variance driven by the exceptional brutality of the offense, while recognizing mental illness and other mitigating factors; and
• Clarified the line between impermissible penalization for exercising the right to trial and permissible denial of acceptance-of-responsibility leniency.

For litigants and trial courts, Powell supplies practical lessons on evidence curation and guardrails that preserve fairness, as well as on the sentencing dynamics that arise when § 924(c) stacking can suppress the advisory range for the underlying offense. Although not precedential, the order provides a useful roadmap for presenting, challenging, and reviewing composite video evidence, excited-utterance identifications, and upward variances in cases where the facts “in human terms” reflect attempted-murder-level violence.