United States v. Adrian Hardy

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13701

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADRIAN HARDY,

JEROME SIMMONS,

Defendants- Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:17-cr-60119-KAM-2

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2 Opinion of the Court 21-13701

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Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

In these consolidated appeals, Adrian Hardy and Jerome

Simmons challenge the sentences they received upon resentencing

for crimes arising from armed robberies of four jewelry stores in

Florida and Georgia in March and April of 2017. After careful re-

view, we affirm.

After a jury trial, Hardy was convicted of one count of con-

spiracy to commit Hobbs Act robbery and one count of Hobbs Act

robbery, see 18 U.S.C. § 1951(a), two counts of brandishing a fire-

arm in furtherance of a crime of violence, see 18 U.S.C.

§ 924(c)(1)(A), and four counts of kidnapping, see 18 U.S.C.

§ 1201(a)(1). He was originally sentenced to concurrent terms of

312 months on the robbery and kidnapping counts, plus consecu-

tive terms of 84 months each for the brandishing counts, for a total

of 480 months of imprisonment. In Hardy’s first appeal, we va-

cated one of his § 924(c) convictions because it was based on kid-

napping, which does not qualify as a crime of violence under

§ 924(c), and we remanded to the district court for resentencing

without that conviction. United States v. Simmons, 847 F. App’x

589, 593 (11th Cir. 2021). On remand, the district court imposed a

total sentence of 432 months, reducing Hardy’s overall sentence to

account for his “successful[] appeal[] [of] his sentence,” though not

to the full extent Hardy requested.

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21-13701 Opinion of the Court 3

For his part, the jury convicted Simmons of one count of

conspiracy to commit Hobbs Act robbery and two counts of Hobbs

Act robbery, see id. § 1951(a), as well as two counts of brandishing

a firearm in furtherance of a crime of violence, see id.

§ 924(c)(1)(A). He was originally sentenced to life imprisonment.

On appeal, we held that the district court erred in enhancing his

sentence under the career-offender guideline, U.S.S.G. § 4B1.1, and

the “three-strikes” law, 18 U.S.C. § 3559(c), and we vacated and re-

manded for resentencing. See Simmons, 847 F. App’x at 594–95.

On remand, the court recalculated the guideline range and applied

enhancements for use of a firearm, abduction, and carjacking,

among others. See U.S.S.G. §§ 2B3.1(b)(2)(B), (4)(A) & (5).

Hardy appeals his sentence on the ground that the district

court violated his due-process right to a resentencing free of vindic-

tiveness by not reducing his sentence by the full 84 months previ-

ously imposed for the vacated § 924(c) conviction. Simmons ap-

peals the district court’s application of the abduction, carjacking,

and firearm enhancements, arguing that the court improperly re-

lied on coconspirator conduct not relevant to his offenses and also

double counted certain conduct. 1

1 Both defendants also argue that Hobbs Act robbery does not qualify as a

crime of violence for purposes of 18 U.S.C. § 924(c). We rejected this same

argument in their first appeal, see Simmons, 847 F. App’x at 593, so that deci-

sion is law of the case here. See United States v. Anderson, 772 F.3d 662, 668

(11th Cir. 2014) (under the law-of-the-case doctrine, an issue decided at one

stage of a case is binding at later stages of the same case). Nor has any change

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4 Opinion of the Court 21-13701

I.

We start with Hardy’s challenge to his sentence on the

ground that it was unconstitutionally vindictive. We review de

novo whether a sentence was unconstitutionally vindictive.2

United States v. Mathurin, 868 F.3d 921, 931 (11th Cir. 2017).

On resentencing, a district court is free to unbundle the en-

tire “sentencing package” and resentence a defendant anew as to

the surviving counts of conviction. United States v. Fowler, 749

F.3d 1010, 1015–16 (11th Cir. 2014). “The thinking is that when a

conviction on one or more of the component counts is vacated for

good, the district court should be free to reconstruct the sentencing

package (even if there is only one sentence left in the package) to

ensure that the overall sentence remains consistent with the guide-

lines, the § 3553(a) factors, and the court’s view concerning the

proper sentence in light of all the circumstances.” Id. This Court’s

vacatur of a sentence “wipes the slate clean” and generally requires

in the law has occurred since that appeal, so we remain bound by our prece-

dent, which holds that Hobbs Act robbery constitutes a crime of violence for

purposes of § 924(c). See United States v. Eason, 953 F.3d 1184, 1191 (11th Cir.

2020) (noting our precedent “that Hobbs Act robbery satisfies the elements

clause in 18 U.S.C. § 924(c)”).

2 The government says that we review for plain error, despite Hardy’s objec-

tion to the district court’s failure to “take off the full 84” at resentencing, be-

cause he did not articulate the objection in terms of due process or vindictive-

ness. We need not resolve this issue because we agree with the government

that his argument fails even under de novo review.

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21-13701 Opinion of the Court 5

the district court to conduct “a resentencing as if no initial sentenc-

ing ever occurred.” United States v. Burke, 863 F.3d 1355, 1359

(11th Cir. 2017).

Nevertheless, a district court’s wide discretion at resentenc-

ing must not be exercised with the purpose of punishing a success-

ful appeal. Alabama v. Smith, 490 U.S. 794, 798 (1989). That is, due

process “requires that vindictiveness against a defendant for having

successfully attacked his first conviction must play no part in the

sentence he receives after a new trial.” North Carolina v. Pearce,

395 U.S. 711, 725 (1969), holding modified by Smith, 490 U.S. at

798–99.

Under Pearce, a presumption of vindictiveness at resentenc-

ing arises if two conditions are present: (1) the sentencing judge

“imposes a more severe sentence”; and (2) no non-vindictive rea-

sons for doing so “affirmatively appear” in the record. Fowler, 749

F.3d at 1019 (quoting Pearce, 395 U.S. at 726). For the first inquiry,

we apply the “aggregate package approach,” comparing the de-

fendant’s new total aggregate sentence to his old one. Id. at 1023.

So long as the new total sentence is less than the old total sentence,

no presumption of vindictiveness arises. See id.

Where the presumption of vindictiveness does not apply,

the defendant must affirmatively prove actual vindictiveness. Ma-

thurin, 868 F.3d at 937; see Wasman v. United States, 468 U.S. 559,

569 (1984). We have held that a defendant failed to show actual

vindictiveness where he offered “no reason to doubt the judge’s

stated [non-vindictive] rationale” for imposing the sentence, and

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6 Opinion of the Court 21-13701

there was “no evidence to suggest it was in any way vindictive.”

Mathurin, 868 F.3d at 937.

Here, Hardy has not shown that he was resentenced based

on an impermissible vindictive motive. He acknowledges that vin-

dictiveness cannot be presumed here because the district court re-

duced the length of his overall sentence—from 480 to 432 months.

See Fowler, 749 F.3d at 1023. And nothing in the record suggests

that the sentence was imposed for the purpose of punishing him

for his successful appeal.

On the contrary, the district court expressly recognized that

Hardy deserved a reduction in his overall sentence for his success-

ful appeal, and it reduced his total sentence by 48 months. Yet the

court explained that, in its view, a more “significant sentence” than

requested by Hardy was “warranted under the facts of the case”

and the § 3553(a) factors, which it discussed in detail. [Doc. 456 at

33–37] The court noted that, in originally sentencing Hardy, it had

lowered the sentence on the non-brandishing counts to account for

the “extra 84 months tagged on to his [g]uideline range.” [Id. at 37]

These comments show that the court viewed the original sentence

as a “package sentence,” which it was entitled to reconsider once

the § 924(c) conviction and 84-month consecutive sentence were

vacated. See Fowler, 749 F.3d at 1017–18, 1023. Hardy has offered

no reason to doubt the court’s stated non-vindictive rationale, nor

is there any evidence to suggest that the court’s decision was in any

way vindictive. See Mathurin, 868 F.3d at 937.

Accordingly, we affirm Hardy’s sentence.

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II.

Simmons challenges the district court’s recalculation of his

guideline range at resentencing. Simmons contends that the court

erred in applying enhancements for abduction and carjacking based

solely on a coconspirator’s conduct after escaping from the imme-

diate area of the robbery and after Simmons was apprehended. He

also says that the court engaged in impermissible double counting

when it applied a firearm enhancement based on conduct which,

in his view, formed the basis for his § 924(c) convictions. We con-

sider each argument in turn.

A.

“Whether a co-conspirator’s act was reasonably foreseeable

to the defendant so that it qualifies as relevant conduct is a question

of fact reviewed for clear error.” United States v. Valarezo-Orobio,

635 F.3d 1261, 1264 (11th Cir. 2011). When applying clear-error

review, we will affirm the district court unless we are convinced

that it made a mistake. United States v. Gordillo, 920 F.3d 1292,

1297 (11th Cir. 2019). There is “no clear error in cases in which the

record supports the district court’s findings.” United States v. Pe-

trie, 302 F.3d 1280, 1290 (11th Cir. 2002).

For robbery offenses, a four-level increase to the defendant’s

offense level applies “[i]f any person was abducted to facilitate com-

mission of the offense or to facilitate escape.” U.S.S.G.

§ 2B3.1(b)(4)(A). A two-level increase applies if the offense in-

volved carjacking. Id. § 2B3.1(b)(5). The government has the

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8 Opinion of the Court 21-13701

burden of introducing “sufficient and reliable evidence” to prove

the facts necessary to support a challenged sentencing enhance-

ment by a preponderance of the evidence. United States v. Grady,

18 F.4th 1275, 1291–92 (11th Cir. 2021), cert. denied, 142 S. Ct. 2871

(2022).

When calculating the guideline range, the district court may

rely on “all relevant conduct,” not just charged conduct. United

States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir. 2014) (quotation

marks omitted). In the case of jointly undertaken criminal activity,

relevant conduct includes “all acts and omissions of others that

were (i) within the scope of the jointly undertaken criminal activ-

ity, (ii) in furtherance of that criminal activity, and (iii) reasonably

foreseeable in connection with that criminal activity,” whether

those acts occurred in preparation for the offense, during its com-

mission, or to avoid detection or responsibility. U.S.S.G.

§ 1B1.3(a)(1)(B). All three prongs must be met to be included as

relevant conduct. Id. § 1B1.3, cmt. n.3(A). In applying this test, we

first determine the “scope of criminal activity the defendant agreed

to jointly undertake.” Grady, 18 F.4th at 1292 (quotation marks

omitted). Then, we must “consider all reasonably foreseeable acts

and omissions of others in the jointly undertaken criminal activity.”

Id. (quotation marks omitted).

1.

The record shows that, on April 13, 2017, Simmons, Hardy,

and a coconspirator entered the LSO Jewelers and Repair store

armed with firearms, locked the door, ordered employees to the

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21-13701 Opinion of the Court 9

ground at gunpoint, and began ransacking the store. The gunmen

communicated by walkie-talkie with another coconspirator, Chris-

topher Brinson, who was waiting outside in a car ready to act as

the getaway driver. After about ten minutes, Brinson notified the

robbers that the police had arrived—an off-duty officer had noticed

the men enter the store and called the police. Upon seeing the po-

lice out front, the robbers dropped the merchandise and fled out

the back, going separate directions. Simmons was found hiding in

a nearby parking lot. Hardy made it farther, escaping the perimeter

established by law enforcement and forcibly entering a nearby res-

idence, where he held the four individuals inside hostage while he

planned his escape, all the while checking for police outside. He

then forced the victims to drive him from Port Saint Lucie to Fort

Lauderdale in their vehicle.

The district court ruled that Hardy’s conduct of abducting

the victims and commandeering their car during escape from the

robbery could be attributed to Simmons as the reasonably foresee-

able conduct of a coconspirator in furtherance of the robbery. In

the court’s view, the jointly undertaken criminal activity included

“escape with whatever means were reasonably available to them,”

and that it was reasonably foreseeable that a coconspirator escap-

ing from an armed robbery upon detection by police would “en-

gage in other criminal conduct in order to effectuate [his] escape.”

Accordingly, it applied the four-level abduction enhancement,

U.S.S.G. § 2B3.1(b)(4)(A), and the two-level carjacking enhance-

ment, id. § 2B3.1(b)(5).

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10 Opinion of the Court 21-13701

2.

Here, the district court did not clearly err in attributing

Hardy’s abduction and carjacking conduct to Simmons as relevant

conduct for purposes of sentencing.

Our decision in United States v. Cover is instructive. In

Cover, as here, the defendant challenged the application of abduc-

tion and carjacking sentencing enhancements based on the conduct

of a conspirator during escape from an armed robbery. See 199

F.3d 1270, 1274–75 (11th Cir. 2000), superseded by regulation on

other grounds as noted in United States v. Diaz, 248 F.3d 1065, 1107

(11th Cir. 2001). Cover and two accomplices, armed with firearms,

took control of a bank by threats of violence, forcing fifteen victims

to lie on the floor. Id. at 1272. When police responded to a silent

alarm, Cover and one accomplice were apprehended attempting to

flee, while the other accomplice escaped by carjacking and kidnap-

ping a motorist at gunpoint outside the bank. Id. at 1273.

On appeal in Cover, we agreed with the district court that

the accomplice’s escape by means of carjacking and kidnapping

was reasonably foreseeable to Cover, given the surrounding cir-

cumstances, including the conspirators’ actions before the arrival

of police. Id. at 1274–75. We rejected the argument that the ab-

duction and carjacking were unforeseeable because it was not the

getaway the conspirators had planned: “The fact that the co-con-

spirators agreed to a plan that did not involve carjacking or abduc-

tion does not preclude the district court from finding that

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21-13701 Opinion of the Court 11

carjacking and abduction were reasonably foreseeable if ‘the origi-

nal plan went awry’ and the police became involved.” Id. at 1275.

Here, the record supports the district court’s ruling that

Hardy’s abduction and carjacking were reasonably foreseeable ac-

tions within the scope and in furtherance of the jointly undertaken

activity. That agreed-upon activity included an armed robbery

during which employees of the jewelry store were ordered to the

ground at gunpoint. While the conspirators’ getaway plans go

awry when police arrive, Simmons concedes, relevant conduct in

an armed robbery can include an accomplice’s resort to violence to

escape upon detection. See id. at 1274–75. And, given the robbers’

conduct preceding detection, the possibility of violence during es-

cape was plainly within the scope of the jointly undertaken activity

in this case.

True, the abduction and carjacking conduct in this case was

slightly more removed from the robbery than in Cover, where that

conduct occurred just outside the bank being robbed. The critical

question, then, is when the escape phase of the robbery ended. We

have recognized that “escape immediately following the taking is a

necessary phase of most violent bank robberies.” United States v.

Willis, 559 F.2d 443, 444 (5th Cir. 1977). In other words, the rob-

bery is not over “until the immediate removal phase comes to a

halt.” Id. To be more specific, “the escape continues so long as

flight occurs from the possibility of hot pursuit.” United States v.

Martin, 749 F.2d 1514, 1518 (11th Cir. 1985).

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12 Opinion of the Court 21-13701

We cannot say it was a mistake to conclude that the imme-

diate escape from the robbery was still in progress when the abduc-

tion and carjacking here occurred. See Gordillo, 920 F.3d at 1297.

Although a close call, the record supports the view that Hardy en-

gaged in his conduct during flight from the possibility of hot pur-

suit, such that Hardy’s conduct was, as in Cover, sufficiently con-

nected to be considered part of the armed robbery itself. See Mar-

tin, 749 F.2d at 1518. We therefore affirm the application of the

abduction and carjacking enhancements. See U.S.S.G.

§ 2B3.1(b)(4) & (5).

B.

We review de novo a claim of impermissible double count-

ing. United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006).

“Impermissible double counting occurs only when one part of the

Guidelines is applied to increase a defendant’s punishment on ac-

count of a kind of harm that has already been fully accounted for

by application of another part of the Guidelines.” Id. at 1226–27

(quotation marks omitted).

The robbery guideline requires a six-level enhancement “if

a firearm was otherwise used” during the crime. U.S.S.G.

§ 2B3.1(b)(2)(B). When a defendant is convicted of a § 924(c) vio-

lation as well as the predicate crime of violence, however, the de-

fendant’s possession of a weapon cannot be used to enhance the

offense level of the predicate offense, to prevent double counting

the same conduct. United States v. Le, 256 F.3d 1229, 1239 (11th

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Cir. 2001); United States v. Diaz, 248 F.3d 1065, 1107 (11th Cir.

2001).

But that rule against double counting does not apply when

a defendant “received weapons enhancements only in connection

with the robberies for which he did not receive 18 U.S.C. § 924(c)

convictions.” United States v. Pringle, 350 F.3d 1172, 1180–81 (11th

Cir. 2003). In other words, the rule does not bar enhancing a con-

spiracy sentence for a coconspirator’s use of a firearm during rob-

beries that did not form the basis of a defendant’s § 924(c) convic-

tion. Id. at 1179.

Here, the district court did not err in applying the six-level

enhancement for use of a firearm to Simmons’s conspiracy count.

The court specifically applied the enhancements in connection

with the Lily’s Jewelers and Bishop’s Jewelers robberies, for which

Simmons did not receive § 924(c) convictions. Under Pringle,

therefore, the enhancements did not amount to double counting,

even though the conspiracy count covered all four robberies. See

id. And contrary to Simmons’s arguments, the use of a firearm

during the Lily’s and Bishop’s robberies did not need to be alleged

in the indictment or found by a jury for purposes of the advisory

guideline range. See United States v. Charles, 757 F.3d 1222, 1225–

26 (11th Cir. 2014) (under an advisory guidelines scheme, a “district

court may continue to make guidelines calculations based upon ju-

dicial fact findings and may enhance a sentence—so long as its find-

ings do not increase the statutory maximum or minimum author-

ized by facts determined in a guilty plea or jury verdict”).

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14 Opinion of the Court 21-13701

For these reasons, we affirm Simmons’s sentence.

AFFIRMED.