United States v. Spencer & Morgan: Substantial Step and Foreseeable Firearm Possession in Attempted Hobbs Act Robbery

I. Introduction

The consolidated appeals in United States v. Harold Edward Spencer, III and United States v. Jon Demetrious Jacques Morgan from the Eastern District of Virginia presented the Fourth Circuit with two central issues:

• Whether the evidence was sufficient to sustain convictions for conspiracy, completed Hobbs Act robberies, and attempted Hobbs Act robbery; and
• Whether a five-level Sentencing Guidelines enhancement for firearm possession in connection with an attempted Hobbs Act robbery was properly applied.

In an unpublished per curiam opinion, the Fourth Circuit (Judges Agee, Wynn, and Benjamin) affirmed the convictions and sentences in full. Although unpublished and therefore nonbinding in the Fourth Circuit, the opinion is instructive in three key areas:

1. The evidentiary sufficiency for identifying masked robbery participants through circumstantial evidence;
2. The boundary between mere preparation and a “substantial step” in attempted Hobbs Act robbery; and
3. The use of the relevant-conduct and foreseeability framework to impose a firearm enhancement under USSG § 2B3.1(b)(2)(C) in an attempted robbery case.

The decision synthesizes existing Supreme Court and Fourth Circuit doctrine—particularly post–United States v. Taylor, 596 U.S. 845 (2022)—and applies it to a robbery crew operating small-business hold-ups involving gambling machines.

II. Factual and Procedural Background

A. The robbery crew and charged offenses

Spencer and Morgan were members of a robbery crew that targeted small businesses with gambling machines (such as convenience stores and similar locations). The crew operated with a consistent modus operandi:

• They targeted small businesses with gambling machines.
• They wore masks, gloves, hoodies, and similar clothing to conceal their identities.
• They parked behind the business, approached from the rear in a “stack,” and entered together.
• Once inside, they brandished firearms to control and intimidate store personnel.

The indictment and subsequent jury verdict reflected both completed robberies and an aborted attempt on a Tiger Mart convenience store. Spencer and Morgan were both convicted of:

• Conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a); and
• Attempted Hobbs Act robbery, 18 U.S.C. §§ 2, 1951(a).

In addition, Spencer alone was convicted of:

• Six substantive Hobbs Act robberies, 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); and
• 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).

B. The arrest and key evidentiary facts

The defendants were apprehended immediately following an attempted robbery of the Tiger Mart. Police, who were already investigating a string of similar robberies, spotted the crew near the target store. As officers approached, the defendants fled in a car, leading to a high-speed chase. During the pursuit, the occupants were seen throwing firearms from the vehicle.

Critical evidence tying Spencer in particular to the completed robberies included:

• He was driving the getaway car when apprehended after the attempted robbery.
• A ski mask recovered from the getaway car contained his DNA.
• He was wearing distinctive shoes that matched the shoes worn by the armed robber in surveillance videos from the completed robberies.
• The same shoes matched a shoeprint impression lifted from one of the robbed locations.
• He redeemed lottery tickets stolen from one of the stores.
• Photographs on his cellphone further implicated him in the robberies.

C. Issues on appeal

On appeal, Spencer and Morgan advanced two categories of challenges:

1. Sufficiency of the Evidence:
   • Spencer argued that the evidence was insufficient to tie him to the six completed robberies and related firearms charges.
   • Both appellants argued that the evidence was insufficient to prove:
     • a conspiracy to commit Hobbs Act robberies, and
     • an attempted Hobbs Act robbery of the Tiger Mart (arguing the conduct was mere preparation, not a substantial step).
2. Sentencing:
   • They contended that the district court erred in applying a five-level enhancement under USSG § 2B3.1(b)(2)(C) (firearm brandished or possessed) to the attempted Hobbs Act robbery.
   • They further suggested that the enhancement was improperly based on acquitted conduct.

III. Summary of the Opinion

The Fourth Circuit affirmed in all respects. Its principal holdings were:

1. Sufficiency of the evidence (completed robberies): Circumstantial evidence—including DNA on a ski mask, distinctive shoe comparisons, shoeprint analysis, stolen lottery ticket redemptions, and incriminating cellphone photos— was sufficient to prove beyond a reasonable doubt that Spencer participated in the six completed robberies and associated § 924(c) firearm offenses.
2. Conspiracy: The coordinated conduct, common modus operandi, and joint flight with firearms being thrown from the vehicle provided ample evidence of a tacit agreement to commit Hobbs Act robberies and of each appellant’s knowing and voluntary participation in the conspiracy.
3. Attempted Hobbs Act robbery: The Tiger Mart operation constituted a “substantial step” toward committing Hobbs Act robbery. The defendants replicated their usual preparatory actions immediately preceding prior robberies, and the crime would likely have been completed but for police intervention. This exceeded mere preparation under the attempt standard articulated in United States v. Taylor and applied in Fourth Circuit precedents.
4. Sentencing enhancement for firearm possession: The district court properly applied the five-level enhancement under USSG § 2B3.1(b)(2)(C) to the attempted robbery count. Under USSG § 1B1.3(a)(1)(B), the court could consider co-conspirators’ firearm possession as relevant conduct in jointly undertaken criminal activity where such possession was reasonably foreseeable to the defendants. The panel found no error, plain or otherwise, and rejected any argument that the enhancement was based on impermissible acquitted conduct.

IV. Detailed Analysis

A. Sufficiency of the Evidence

1. Governing standard and appellate deference

The court anchored its sufficiency review in familiar principles:

• Defendants challenging the sufficiency of the evidence face a “heavy burden.” (United States v. Gallagher, 90 F.4th 182, 190 (4th Cir. 2024))
• A conviction must be upheld if there is “substantial evidence,” viewed in the light most favorable to the Government, to support the verdict. (United States v. Luong, 125 F.4th 147, 153 (4th Cir. 2025))
• “Substantial evidence” means evidence that a reasonable factfinder could accept as adequate and sufficient to find guilt beyond a reasonable doubt.
• The jury, not the appellate court, resolves evidentiary conflicts, assesses credibility, and chooses among competing reasonable interpretations of the evidence.

The panel emphasized another critical point drawn from United States v. Seigler, 990 F.3d 331, 338 (4th Cir. 2021): the court’s focus is on the evidence that is in the record, not on evidence that might have been but is absent. Thus, arguments highlighting gaps (e.g., lack of eyewitness IDs because robbers wore masks) are less persuasive where the existing circumstantial record strongly supports guilt.

2. Linking Spencer to the six completed robberies

Spencer’s primary sufficiency argument attacked the proof of identity: no eyewitness could identify him as a robber because participants wore masks and gloves.

The Fourth Circuit upheld the convictions on the basis of converging circumstantial evidence:

• Flight from the attempted robbery: Spencer was apprehended as the driver of the getaway car immediately after the attempted Tiger Mart robbery, following a high-speed chase.
• DNA evidence: A ski mask recovered from the getaway car contained Spencer’s DNA.
• Distinctive shoes and video evidence:
  • Spencer was wearing distinctive shoes when arrested.
  • Those same shoes appeared on the individual brandishing and discharging a firearm in surveillance footage from the earlier robberies.
  • The shoes matched a shoeprint impression collected from one of the robbed stores.
• Possession of stolen property: Spencer redeemed lottery tickets that had been taken from one of the stores.
• Digital evidence: Photos on his cellphone further tied him to the robberies.

Viewed collectively and in the light most favorable to the Government, this evidence readily met the “substantial evidence” threshold. The case illustrates how modern juries and courts can confidently identify masked offenders through a mosaic of forensic, circumstantial, and digital evidence—even in the absence of traditional eyewitness identification.

3. Proof of conspiracy

To sustain the conspiracy conviction, the Government had to show that the defendants entered into an agreement to commit a crime. The court relied on:

• United States v. Wiley, 93 F.4th 619, 633 (4th Cir. 2024); and
• United States v. Moody, 2 F.4th 180, 194 (4th Cir. 2021).

These cases reaffirm several conspiracy principles:

• The agreement need not be explicit and can be proved entirely through circumstantial evidence.
• Because conspiracies are often “clandestine and covert,” circumstantial proof is frequently all that is available.
• A “tacit or mutual understanding” among participants is sufficient to establish an agreement.
• A defendant’s presence at the scene and association with co-conspirators are “material and probative” evidence of participation, especially when coupled with coordinated conduct.
• Once the Government proves a conspiracy exists, only a “slight connection” between the defendant and the conspiracy is needed to support conviction, per United States v. Ath, 951 F.3d 179, 186 (4th Cir. 2020).

Applying these principles, the panel emphasized:

• Spencer, Morgan, and their co-defendants were arrested together after fleeing the scene of the attempted Tiger Mart robbery.
• Police observed them while investigating the series of robberies and saw them throwing firearms out of the getaway car.
• The robberies shared a consistent modus operandi:
  • Targeting small businesses with gambling machines;
  • Wearing masks, hoodies, and gloves to conceal identity;
  • Parking behind stores and approaching from the rear in a “stack”; and
  • Brandishing firearms once inside.
• Additional evidence corroborated coordination among the participants.

These facts strongly supported a tacit agreement to commit robberies and each appellant’s knowing, voluntary participation. The opinion thus reinforces that a combination of joint action, repeated patterns, and shared flight can readily satisfy the conspiracy element even when there is no direct evidence of an explicit agreement.

4. Attempted Hobbs Act robbery and the “substantial step”

The attempted robbery of the Tiger Mart presented the classic problem of distinguishing preparation from an actionable attempt.

The court, citing United States v. Taylor, 596 U.S. 845, 851 (2022), articulated the elements of attempted Hobbs Act robbery:

1. The defendant intended to unlawfully take or obtain personal property by means of actual or threatened force; and
2. The defendant took a “substantial step” toward commission of the robbery.

The Fourth Circuit refined this with its own precedents:

• Substantial step vs. preparation:
  • A substantial step “need not be the last possible act” but must be more than “mere preparation.” (United States v. Haas, 986 F.3d 467, 478 (4th Cir. 2021))
  • Conduct qualifying as a substantial step is “strongly corroborative of culpable intent.”
• Probability of completion standard:
  • To distinguish attempt from preparation, courts assess how probable it would have been that the crime would have been completed—as perceived by the defendant—had there been no intervening circumstances. (United States v. Pratt, 351 F.3d 131, 136 (4th Cir. 2003))

The appellants argued that their conduct at the Tiger Mart constituted only preparation; they had not yet taken a substantial, crime-probable step. The Fourth Circuit disagreed, emphasizing:

• The crew took “all the steps they normally took just before robbing the store,” replicating the same conduct that immediately preceded earlier completed robberies.
• Given that pattern, it was probable they would have completed the crime had they not been seen by police and forced to flee.

In other words, the replication of all usual pre-robbery steps—up to the point where police intervention disrupted the plan—constituted a substantial step because it:

• Strongly corroborated their specific intent to rob; and
• Placed the crime at a point where, absent intervention, completion was reasonably probable.

This application is particularly significant in a post-Taylor landscape: while the Supreme Court held that attempted Hobbs Act robbery is not a “crime of violence” for purposes of 18 U.S.C. § 924(c), this opinion confirms that the substantive offense of attempt itself remains robust and broadly defined in ordinary criminal prosecutions and guideline calculations.

B. Sentencing: Firearm Enhancement for Attempted Robbery

1. Guideline framework and standard of review

The district court applied a five-level enhancement under USSG § 2B3.1(b)(2)(C) for a firearm being “brandished or possessed” during the attempted Hobbs Act robbery. On appeal, the Fourth Circuit applied a multi-layered review:

• Overall sentence: Reviewed under a “deferential abuse-of-discretion standard.” (United States v. Smith, 134 F.4th 248, 256 (4th Cir. 2025))
• Procedural reasonableness: The court looks for significant procedural error, including miscalculation of the Guidelines or reliance on clearly erroneous facts. (United States v. Henderson, 136 F.4th 527, 534 (4th Cir. 2025))
• Factual findings underlying Guidelines application: Reviewed for clear error. (United States v. Gross, 90 F.4th 715, 720 (4th Cir. 2024))
• Legal conclusions about the Guidelines: Reviewed de novo.
• Plain error: Where a defendant fails to object below, appellate review is limited to plain error. (United States v. Dominguez, 128 F.4th 226, 230–31 (4th Cir. 2025))
• Harmless error: Even if there were a Guidelines error, reversal is not required if the error was harmless. (United States v. Mills, 917 F.3d 324, 330 (4th Cir. 2019))

Spencer did not object to the enhancement; Morgan did. Thus, Spencer’s claim, if any, would be subject to plain-error review, while Morgan’s rested on whether the district court’s factual findings and legal conclusions were erroneous.

2. Jointly undertaken criminal activity and foreseeability

Under USSG § 2B3.1(b)(2)(C), a five-level increase applies where “a firearm was brandished or possessed” in connection with the robbery (or attempted robbery). The key question in a multi-defendant case is whether a particular defendant can be held accountable under the relevant conduct provision, USSG § 1B1.3(a)(1)(B).

Section 1B1.3(a)(1)(B) provides that, 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,
  • in furtherance of that criminal activity, and
  • reasonably foreseeable in connection with that criminal activity.

The district court found by a preponderance of the evidence that:

• Possession of firearms by co-conspirators was within the scope of the jointly undertaken robbery scheme;
• It was clearly in furtherance of the planned robbery (used to threaten and control victims); and
• Such possession was reasonably foreseeable to both Spencer and Morgan in connection with the attempted Tiger Mart robbery.

Given the crew’s repeated use of firearms in every prior robbery, their chosen modus operandi, and the fact that guns were thrown from the getaway vehicle during flight, the conclusion that firearms would again be involved in the Tiger Mart attempt was not just foreseeable—it was nearly inevitable.

The Fourth Circuit upheld these findings, concluding that the district court committed no factual or legal error. Thus, the firearm enhancement was properly applied even though the offense was an attempt and even though an individual defendant might not personally have brandished or possessed a firearm so long as co-conspirator possession was foreseeable.

3. Interaction with the attempt context

A notable feature of this case is that the enhancement was applied to an attempted Hobbs Act robbery. The opinion confirms that:

• Guideline enhancements for firearm possession/brandishing are fully applicable to attempts when the evidence shows that firearms were in fact possessed in connection with the attempted offense.
• The fact that the robbery was interrupted by law enforcement does not insulate defendants from enhanced punishment if the attempt had reached the point where firearms were deployed or were foreseeably in play.

This underscores that, in the Guidelines system, the real-world conduct—including aborted crimes and preparatory firearm deployment—is central, not just the formal label of “attempt.”

4. Acquitted conduct argument

In a footnote, the panel rejected any suggestion that the enhancement was impermissibly based on acquitted conduct. Citing Henderson, 136 F.4th at 535 n.2, the court found the argument meritless.

The opinion does not elaborate, but the doctrinal backdrop is that, under prevailing Supreme Court and Fourth Circuit precedent, a sentencing court may generally consider conduct for which the defendant has been acquitted, provided:

• The conduct is proved by a preponderance of the evidence;
• The sentence does not exceed the statutory maximum authorized by the jury’s verdict; and
• The court uses the acquitted conduct as part of the Guidelines and § 3553(a) analysis, not as a separate offense.

Here, however, the panel indicates that the enhancement was independently justified by conduct clearly proved in connection with the conspiracy and attempted robbery, so the acquitted-conduct objection was both doctrinally foreclosed and factually weak.

C. Precedents Cited and Their Role in the Decision

Although unpublished, the opinion draws heavily on established precedent. The most salient citations include:

1. United States v. Gallagher, 90 F.4th 182 (4th Cir. 2024)

Gallagher reiterates that sufficiency challenges impose a “heavy burden” on defendants because convictions must be sustained if supported by substantial evidence. The panel invokes this principle to frame its highly deferential review of the jury’s verdict in Spencer and Morgan’s case.

2. United States v. Luong, 125 F.4th 147 (4th Cir. 2025)

Luong provides the operative definition of “substantial evidence” and emphasizes deference to the jury’s credibility assessments and fact-finding. This guided the panel’s refusal to reweigh the circumstantial evidence connecting Spencer to the robberies and both defendants to the conspiracy and attempted robbery.

3. United States v. Wiley, 93 F.4th 619 (4th Cir. 2024) and United States v. Moody, 2 F.4th 180 (4th Cir. 2021)

These cases underscore that conspiracies are often proven through circumstantial evidence and that a tacit understanding can constitute an agreement. They also highlight that presence at crime scenes and association with co-conspirators is probative. The crew’s joint activities, patterned robberies, and coordinated flight fit squarely within the models discussed in Wiley and Moody.

4. United States v. Ath, 951 F.3d 179 (4th Cir. 2020)

Ath stands for the proposition that, once the existence of a conspiracy is proven, only a “slight connection” need be shown between a defendant and the conspiracy to sustain conviction. This standard made it easier for the Government to tie Morgan to the conspiracy in light of the crew’s unified conduct.

5. United States v. Taylor, 596 U.S. 845 (2022)

In Taylor, the Supreme Court held that attempted Hobbs Act robbery does not qualify as a “crime of violence” under § 924(c). However, in doing so, the Court carefully spelled out the elements of attempted Hobbs Act robbery: intent plus a substantial step.

The Fourth Circuit relies on Taylor’s elements here, not on its § 924(c) holding. The opinion illustrates that, while Taylor narrows the use of § 924(c), it simultaneously confirms the substantive framework for prosecuting attempted Hobbs Act robbery and evaluating “substantial step” evidence.

6. United States v. Haas, 986 F.3d 467 (4th Cir. 2021)

Haas articulates the substantial-step standard in attempt law—the step must be more than mere preparation and strongly corroborative of culpable intent. The panel uses Haas to conclude that replicating all pre-robbery steps used in prior completed robberies, followed only by police disruption, crosses the line into attempt.

7. United States v. Pratt, 351 F.3d 131 (4th Cir. 2003)

Pratt supplies a practical test for distinguishing attempt from preparation by asking how probable commission of the crime would have been, from the defendant’s standpoint, absent intervening events. Here, absent intervention by law enforcement, completion of the Tiger Mart robbery was strongly probable given the crew’s established pattern.

8. United States v. Seigler, 990 F.3d 331 (4th Cir. 2021)

Seigler instructs courts to focus on the evidence in the record, not on hypothetical missing evidence. The panel uses this to dismiss arguments based solely on the absence of eyewitness identifications and to emphasize the weight of the circumstantial record.

9. Sentencing cases: Smith, Henderson, Gross, Dominguez, Mills

• Smith, 134 F.4th 248 (4th Cir. 2025): Establishes the deferential abuse-of-discretion standard for appellate review of sentences.
• Henderson, 136 F.4th 527 (4th Cir. 2025): Clarifies procedural reasonableness and, in footnote 2, reaffirms the ability to consider acquitted conduct.
• Gross, 90 F.4th 715 (4th Cir. 2024): Distinguishes between factual and legal questions in Guidelines calculations, assigning clear-error review to the former and de novo review to the latter.
• Dominguez, 128 F.4th 226 (4th Cir. 2025): Applies plain-error review where there was no objection below.
• Mills, 917 F.3d 324 (4th Cir. 2019): Articulates the harmless-error principle in the Guidelines context.

Together, these cases provide the architecture for the court’s affirmance of the § 2B3.1(b)(2)(C) firearm enhancement.

V. Clarifying Key Legal Concepts

1. Hobbs Act robbery and attempted Hobbs Act robbery

The Hobbs Act, 18 U.S.C. § 1951, criminalizes robbery and extortion that in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce. Hobbs Act robbery is defined as the unlawful taking of personal property from another by means of actual or threatened force, violence, or fear of injury.

Attempted Hobbs Act robbery requires:

• Specific intent to commit the robbery; and
• A substantial step toward committing the robbery, which goes beyond mere preparation and strongly corroborates the intent to commit the crime.

2. “Substantial step” vs. “mere preparation”

“Mere preparation” includes early-stage planning or actions too remote from the crime to demonstrate a firm commitment (e.g., thinking about the crime, initial scouting without tools, vague discussions).

A “substantial step” involves:

• Conduct that clearly indicates a firm decision to commit the crime; and
• Activity that places the crime in realistic proximity to completion (e.g., traveling to the scene with weapons, donning masks, and preparing to enter a target in the same manner used in prior completed crimes).

In this case, the crew repeating all the steps they had taken just before prior robberies—clothing, approach, positioning, and presence of firearms—qualified as a substantial step.

3. Conspiracy and tacit agreement

A criminal conspiracy exists when:

• Two or more persons agree (explicitly or implicitly) to commit a crime; and
• Each alleged conspirator knowingly and voluntarily joins the agreement.

Proof may come entirely from circumstantial evidence, and a “tacit or mutual understanding” is enough. Participation may be shown by coordinated action, repeated joint conduct, and shared methods, as in this robbery crew’s patterned activity.

4. Relevant conduct and jointly undertaken criminal activity (USSG § 1B1.3)

At sentencing, the Guidelines do not limit a defendant’s accountability to conduct supporting the particular counts of conviction. Under USSG § 1B1.3, a defendant can also be held responsible for:

• His own acts and omissions; and
• In the case of jointly undertaken criminal activity, the reasonably foreseeable acts of others in furtherance of the jointly undertaken activity and within its scope.

This is why, in a robbery conspiracy, one member can receive a firearm enhancement even if another member actually carried or brandished the gun—so long as such possession was reasonably foreseeable.

5. Procedural reasonableness and standards of review

• Abuse-of-discretion: The broad standard for reviewing the overall sentence. The appellate court asks whether the district court made a significant procedural or substantive error.
• Clear error: Applied to factual findings in Guidelines calculations; the appellate court will not disturb such findings unless left with a firm and definite conviction that a mistake has been made.
• De novo review: Applied to questions of law, such as interpretation of the Guidelines.
• Plain error: If the defendant failed to object in the district court, the appellate court will reverse only if there was:
  1. an error,
  2. that was plain (clear or obvious),
  3. that affected substantial rights, and
  4. that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Harmless error: Even clear Guidelines errors will not require reversal if the appellate court is persuaded the same sentence would have been imposed, and the error did not affect the outcome.

6. Acquitted conduct at sentencing

“Acquitted conduct” refers to conduct arising from charges on which a defendant was found not guilty. Under existing Supreme Court and Fourth Circuit doctrine, sentencing judges may still consider such conduct under a preponderance standard, so long as they stay within the statutory range authorized by the jury’s verdict.

Although controversial and the subject of ongoing debates and reform efforts, this doctrine remains binding on lower courts. The panel’s brief reference to Henderson confirms that, at least as of the time of this opinion, the Fourth Circuit continues to permit consideration of acquitted conduct as part of relevant conduct.

VI. Impact and Significance

While unpublished and explicitly nonprecedential, this opinion has meaningful persuasive value and practice implications.

1. Evidentiary sufficiency in masked-robber cases

The case confirms that:

• Courts will uphold convictions even where no eyewitness can identify the perpetrator, provided that forensic, circumstantial, and digital evidence create a compelling mosaic of guilt.
• Identity can be firmly established through combinations of:
  • DNA on clothing or masks;
  • Distinctive clothing and footwear matched to surveillance imagery and crime-scene impressions;
  • Possession or redemption of stolen items (e.g., lottery tickets); and
  • Incriminating data on cellphones.

For prosecutors, the case validates an evidence strategy that leverages modern forensic and digital tools in the absence of eyewitness testimony. For defense counsel, it highlights the need to aggressively contest the chain-of-custody, comparison methodologies, and inferential leaps involved in such evidence.

2. The substantial step threshold in attempt law

The opinion has particular significance for the law of attempt, especially post-Taylor:

• It confirms that repeated use of an established modus operandi may transform what might otherwise be considered “preparatory” acts into a substantial step, because the conduct so strongly corroborates intent and so closely precedes completion.
• Law enforcement intervention does not negate attempt liability where, from the defendants’ perspective, the crime would likely have been completed absent detection.
• In robbery cases, traveling to the scene with weapons, donning disguises, staging in the usual way, and moving into position may be sufficient to establish attempt even before entry or direct confrontation with victims.

This will inform future prosecutions and defenses in attempt cases, especially those involving patterned criminal enterprises.

3. Foreseeable co-conspirator firearm possession in attempt contexts

The decision also clarifies that:

• USSG § 2B3.1(b)(2)(C)’s firearm enhancement applies fully to attempted robberies when firearms were possessed in connection with the attempt.
• In conspiracies with a history of armed robberies, co-conspirator firearm possession is virtually always foreseeable, thereby justifying enhancements for all participants who jointly undertake the activity.
• The relevant-conduct framework of USSG § 1B1.3 continues to exert a powerful effect on sentence length, sometimes eclipsing the number and nature of the formal counts of conviction.

For practitioners, this underscores the importance of:

• Defining and contesting the “scope” of jointly undertaken criminal activity at sentencing; and
• Developing record-based arguments that a co-defendant’s firearm use was not reasonably foreseeable in particular cases, especially in first-time, non-patterned ventures.

4. Continuing acceptance of acquitted conduct

By citing Henderson and dismissing the acquitted-conduct argument, the panel signals:

• The Fourth Circuit remains bound by—and adheres to—existing Supreme Court precedent permitting the consideration of acquitted conduct in Guidelines calculations.
• Absent a change in Supreme Court doctrine or statutory reform, district courts in the Fourth Circuit will continue to apply that rule.

VII. Conclusion

The Fourth Circuit’s unpublished opinion in United States v. Spencer and Morgan offers a detailed, if nonbinding, illustration of how the court applies key doctrines governing sufficiency of evidence, conspiracy, attempt liability, and sentencing enhancements in Hobbs Act robbery cases.

The decision:

• Affirms convictions based largely on sophisticated circumstantial and forensic proof rather than eyewitness identification;
• Clarifies that patterned, near-complete preparations—interrupted only by law-enforcement intervention—can constitute a substantial step toward Hobbs Act robbery;
• Reinforces the breadth of relevant conduct and foreseeability principles in assigning firearm enhancements under the Sentencing Guidelines; and
• Confirms the continued viability of considering co-conspirator conduct and, where applicable, acquitted conduct at sentencing.

Although this opinion does not create binding precedent, it synthesizes and applies existing doctrine in a way that will be persuasive in future cases involving robbery conspiracies, attempted violent offenses, and firearm-related sentencing issues throughout the Fourth Circuit and beyond.