Petition for Writ of Certiorari — Christopher Robertson, Petitioner v. United States

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4438

(4:18-cr-00027-DJN-LRL-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CHRISTOPHER ROBERTSON

Defendant - Appellant

ORDER

The court denies the motion for extension of time without prejudice to refiling

the motion accompanied by the petition for rehearing within 30 days of this order.

For the Court—By Direction

/s/ Patricia S. Connor, Clerk

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4438

(4:18-cr-00027-D JN-LRL-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CHRISTOPHER ROBERTSON

Defendant - Appellant

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/PATRICIA S. CONNOR, CLERK

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4438

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER ROBERTSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at

Newport News. David J. Novak, District Judge. (4:18-cr-00027-DJN-LRL-l)

Argued: March 10,2023

Decided: May 23, 2023

Before AGEE and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by published opinion, Judge Agee wrote the opinion in which Judge Richardson

and Judge Keenan joined.

ARGUED: Fernando Groene, FERNANDO GROENE, PC, Williamsburg, Virginia, for

Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney,

Richmond, Virginia, Eric M. Hurt, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

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AGEE, Circuit Judge:

After committing or attempting to commit-thirteen robberies. Christopher Robertson

was indicted on twenty-two counts of robbery-related activity and one count of being a

felon in possession of a firearm. Before a jury could return a verdict in Robertson’s original

trial, it was deemed a mistrial.

Before a retrial, at Robertson’s request, the district court severed Robertson’s

charges into two trials—one for the felon in possession of a firearm charge and another for

the robbery-related charges. After both trials resulted in guilty verdicts on all counts,

Robertson filed motions for a judgment of acquittal in each case, arguing that there was

insufficient evidence to support his convictions. The district court denied the motions.

Robertson appeals, contesting the district court’s decisions on both motions for acquittal,

the district court’s enforcement of a stipulation in the retrial, and the district court’s use of

certain jointly proposed jury instructions, and alleging a speedy trial violation. For the

reasons discussed below, we affirm.

I.

In 2013 and 2014, Robertson orchestrated thirteen robberies throughout eastern

Virginia. He and three coconspirators robbed gas stations, restaurants, grocery stores, and

other similar businesses in Chesapeake, Fredericksburg, Newport News, Spotsylvania, and

Yorktown.

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As part of an investigation into the robberies and pursuant to a state court order,

Newport News local law enforcement obtained cell site location information from Verizon

cell towers that placed Robertson near the location of each robbery at the time it occurred.

After unsuccessfully attempting to arrest Robertson, law enforcement obtained a

warrant to search for him in the residence of Keosha Hodge, the mother of one of his

children. At 6:00 AM on May 20, 2016, law enforcement executed the warrant and

searched Hodge’s residence, in which they found a 9-millimeter Taurus handgun lying on

the floor underneath some clothing in the main bedroom and Robertson’s prescription card

in the bedroom closet. Law enforcement also located a motorcycle helmet in the residence

and observed Robertson’s motorcycle parked outside of it. The officers then found

Robertson hiding in the attic and arrested and searched him. In the course of the search, the

officers found a 9-millimeter bullet in Robertson’s right front pants pocket, which had the

“same, identical markings” as the bullets found in the firearm on the floor of the main

bedroom. J.A. 205.

Robertson was subsequently charged with fourteen counts of a combination of

conspiracy to commit, actually committing, and attempting to commit Hobbs Act robbery;

eight counts of using a firearm during a crime of violence; and one count of being a felon

in possession of a firearm.

Prior to Robertson’s ^irst trial, Robertson and the Government entered into multiple

stipulations, nne nf whinh

tW frig rnhVipnps apd attempted robberies “affected

commerce.” LA. 32. Before a verdict was reached, the district court declared a mistrial on

February 15, 2019, for reasons unrelated to this appeal.

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Thereafter, a superseding indictment was filed bringing the same twenty-three

charges against Robertson and adding a coconspirator.-Robertson moved to sever his

claims, asking for separate trials on the felon-in-possession charge and the robbery-related

charges. The district court granted the motion and scheduled a trial on the

felon-in-possession charge for March 3, 2020.

Robertson then proceeded to trial on the felon-in-possession charge, stipulating that

he was a felon and was aware of his felon status. The Government presented evidence of

the search of Hodge’s house and the seizure of the firearm found near Robertson’s

possessions. They also presented evidence regarding the bullet found in Robertson’s

pocket, which was identical to the bullets found in the firearm. Additionally, the

Government

demonstrated that

the

firearm

was

purchased by Robertson’s

on-again-off-again girlfriend and the mother of his second child, Aquilla Jones. The jury

found Robertson guilty.

After trial, Robertson moved for a judgment of acquittal, arguing that there was

insufficient evidence that he possessed the firearm because no fingerprints were obtained

from the firearm, no testing was done on the bullet found in his pocket, and certain items

in the bedroom where the firearm was found clearly belonged to Hodge. The district court

denied the motion and explained that the Government provided sufficient evidence

connecting Robertson to the 'bedroom and noted that he was found hiding in the house with

a matching bullet in his pocket. This “mosaic of circumstantial evidence” was sufficient

for a reasonable juror to conclude beyond a reasonable doubt that Robertson constructively

possessed the firearm. J.A. 275 (footnote omitted).

4

r

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Thereafter, the district court asked the parties to submit their speedy trial positions

on an August 2020 trial date for the remaining counts. Robertson never asserted a speedy

trial violation but advised the district court that he “wished to be tried as soon as possible.”

J.A. 237. The district court found that the “ends of justice” were served by setting a trial

date beyond the seventy-day window normally required by the Speedy Trial Act because

the case was complex and counsel needed time to prepare. J.A. 247—48. However, before

the parties could agree on a date, the district court closed due to COVID, but shortly

thereafter the trial was scheduled for December 4, 2020.

The district court entered an order which excluded the period from July 7, 2020 to

December 3, 2020 from the speedy trial calculation due to COVID’s effect on the court’s

operations. Robertson filed a position statement, agreeing that the court’s order was “well

reasoned and sound” and “properly justifie[d] the exclusion” of time for speedy trial

purposes. .T.A. 290. He did “not object to this particular time exclusion” but restated “his

desire to be tried as soon as possible” and refused to waive his right to a speedy trial. J.A.

290. The district court extended its jury trial suspension twice more. Ultimately, the district

court set a trial date of March 1, 2021.

Before the trial, the Government moved to enforce several stipulations which the

parties had entered into prior to Robertson’s first trial. Although he did not challenge the

enforcement of some of the, stipulations, Robertson did object to the enforcement of the

prior stipulation that stated that the alleged robberies affected interstate commerce. The

district court nonetheless accepted the stipulation, reasoning that Robertson had “not

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demonstrated manifest injustice resulting from the enforcement of the stipulation, nor that

he inadvertently entered into the stipulation.” J.A. 307.

On March 1, 2021, Robertson was tried by a jury and the evidence included

testimony from his three coconspirators—Michael Ellison, Ezekiel Keaton, and Jones.

Each testified that they participated in the robberies at Robertson’s direction, J.A. 322-23.

361, 484-85, 521-22, and stated that Robertson selected the locations to rob and

accompanied them to the locations during every robbery. They further explained that

Robertson did not enter the businesses because he believed the security cameras could

identify him through retinal scans. Instead, Robertson kept lookout and advised Ellison and

Keaton when it was clear to enter each business.

The coconspirators revealed that the first group of robberies was committed by just

Ellison and Robertson between September 24,2013 and October 13,2013. Ellison testified

regarding every robbery that occurred and stated that Robertson aided him with each one.

The second set of robberies involved Robertson, Ellison, Jones, and Keaton, and occurred

throughout December 2014. The coconspirators testified as to Robertson’s involvement in

each of those robberies as well.

After the parties rested their cases, Robertson and the Government proposed joint

jury instructions, which the district court accepted and provided to the jury. The jury then

convicted Robertson on all counts. Thereafter, Robertson moved for an acquittal, arguing

that there was insufficient evidence that his coconspirators succeeded in retrieving anything

of value during certain robberies. The district court denied Robertson’s motion, laying out

the evidence that demonstrated that the coconspirators took money from each robbery and

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concluding that a rational juror accepting that testimony could find that they completed the

robberies. United States v. Robertson, No. 4:18cr27 (DJN), 2021 WL 3575834. at *1-3,

*7-8 (E.D. Va. Aug. 12, 2021).

Additionally, Robertson argued that the jury instructions contained a prejudicial

error. The district court rejected this argument, reasoning that Robertson “forfeited his

challenge to the[] instructions under the invited error doctrine” as he jointly proposed the

instructions. Id. at *8. Moreover, the district court concluded that Robertson, who had not

objected to the jury instructions before the jury retired to deliberate, failed to demonstrate

plain error. Id. at *9.

Robertson timely appealed, bringing four challenges to the district court’s decisions.

First, Robertson argues that the district court abused its discretion by enforcing a stipulation

in the retrial which the parties entered into before the first trial. Second, he posits that there

was insufficient evidence supporting his convictions. Third, Robertson contests the district

court’s use of a jointly proposed jury instruction. Finally, he contends that the district court

violated his right to a speedy trial.1 We take each argument in turn.2

i

Robertson also argues that the district court erred by denying two motions to

suppress that he brought before his retrial. But Robertson failed to develop those arguments

or provide any support for them in his opening brief. As such, they have been waived. See

Grayson O Co. v. Agadir Int 7LLC, 856 F.3d 307. 316 (4th Cir. 2017) (“A party waives an

argument by failing to present it in its opening brief or by failing to develop its argument—

even if its brief takes a passing shot at the issue.” (cleaned up)).

2 The Court has jurisdiction under 28 U.S.C. §1291.

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II.

Robertson initially asserts that the district court erred by enforcing in the retrial a

stipulation that the parties entered into before his first trial. We disagree.

We review evidentiary rulings for abuse of discretion, which the Court “will not

find unless the decision was arbitrary and irrational.” United States v. Blake, 571 F.3d331

346 (4th Cir. 2009) (cleaned up). Generally, “stipulations of attorneys made during a trial

may not be disregarded or set aside at will.” Marshall v. Emersons Ltd., 593 F.2d 565. 569

(4th Cir. 1979) (citation omitted). As a result, we have recognized only two exceptions that

require setting aside a stipulation: (1) “when it becomes apparent that [the stipulation] may

inflict a manifest injustice upon one of the contracting parties,” and (2) “when a stipulation

is entered into under a mistake of law.” Id. at 568 (citation omitted). Neither exception

applies here.

However, we have not previously considered the question now before us—whether

a stipulation made before a previous trial can be binding in a later trial. Having reviewed

the parties’ arguments on this issue, we join our sister circuits that have unanimously

concluded that a district court may enforce in a later trial a stipulation entered into in an

earlier trial.3 See Waldorf v. Shuta, 142 F.3d 601. 616-20 (3d Cir. 1998) (rejecting a

challenge to the district court’s acceptance of a stipulation in a later trial entered into before

3 Notably, the Eleventh Circuit concluded that the district court did not abuse its

“broad discretion” by choosing not to enforce a stipulation entered into during a prior trial

because stipulations “need not be rigidly and pointlessly adhered to at trial.” Hunt v.

Marchetti, 824 F?.d 916. 918 (11th Cir. 1987) (cleaned up). It did not, however, state that

a district court could not enforce an earlier-made stipulation in a later trial.

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a previous trial); United States v. Marino, 617 F.2d 76. 82 (5th Cir. 1980) (same); United

States v. Wingate, 128 F.3d 1157. 1160-61 (7th Cir. 1997) (same); United States v.

Burkhead, 646 F.2d 1283. 1285 (8th Cir. 1981) (same); Bail Bonds by Marvin Nelson, Inc.

v. Comm’r, 820 F.2d 1543. 1547-48 (9th Cir. 1987) (same); United States v. Boothman,

654 F.2d 700. 703 (10th Cir. 1981) (same); United States v. Kanu, 695 F.3d 74. 78-82

(D.C. Cir. 2012) (same); see also Am. Honda Motor Co. v. Richard Lundgren, Inc., 314

F.3d 17. 21-22 (1st Cir. 2002) (rejecting a challenge to the district court’s acceptance of a

stipulation entered into in a previous lawsuit); Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th

293. 322 (6th Cir. 2022) (concluding that the ALJ did not abuse his discretion by admitting

stipulations from prior proceedings).

In analyzing this issue, our sister circuits posit that the most important factor to

consider is “the parties’ intention to limit or not limit a stipulation to only one proceeding.”

Kanu, 695 F.3d at 78 (citation omitted); see also Waldorf, 142 F.3d at 617 (“[T]he parties’

intention to limit or not limit a stipulation to only one proceeding is the overriding factor.”).

So, “a stipulation does not continue to bind the parties if they expressly limited it to the

first proceeding or if the parties intended the stipulation to apply only at the first trial.”

Kanu, 695 F.3d at 79 (citation omitted). But where the stipulation was “an open-ended

concession of liability without limitation to the ensuing trial,” there is no reason to relieve

a party from an earlier-made stipulation in a later proceeding. Id. (cleaned up).

Applying those sound principles here, nothing in the stipulation’s language limited

its applicability to the first trial. See J.A. 32 (stating that the parties “agree that the robbery

or attempted robbery of the listed businesses affected commerce on the date of the robbery

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or attempted robbery” and listing the relevant businesses). The parties entered into an

open-ended stipulation in which they both agreed that Robertson’s alleged robberies

affected commerce. That Robertson later regretted entering into the stipulation is not

sufficient to relieve him of its continuing effect. See Waldorf, 142 F.3d at 616 (“Generally,

a stipulation entered into prior to a trial remains binding during subsequent proceedings

between the parties.”). Accordingly, the district court’s acceptance of the stipulation in the

retrial was not an abuse of discretion.

III.

Robertson next argues that the district court erred by denying his motions for a

judgment of acquittal because there was insufficient evidence to support his convictions.

Again, we disagree.

When considering a sufficiency-of-the-evidence challenge to a jury’s guilty verdict,

the court must sustain the verdict “if there is substantial evidence, taking the view most

favorable to the Government, to support it.” United States v. Stockton, 349 F.3d 155. 761

(4th Cir. 2003) (citation omitted). Substantial evidence is “evidence that a reasonable finder

of fact could accept as adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d_849. 862 (4th Cir. 1996)

(en banc). We review the district court’s sufficiency conclusion de novo but can reverse a

conviction “only where no reasonable juror ‘could have found the essential elements of the

crime beyond a reasonable doubt.’” United States v. Dennis, 19 F.4th 656. 666 (4th Cir.

2021) (citation omitted).

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To establish the crime of being a felon in possession of a firearm, the Government

must prove: (1) the defendant was previously convicted of a felony, (2) the defendant knew

he was a felon, (3) the defendant knowingly possessed the firearm, and (4) the possession

was in or affecting commerce. 18 TJ.S.C. § 922($)(\Y. Rehaif v. United States, 139 S. Ct

2191. 220Q (2019). For the third element, constructive possession of the firearm is

sufficient, meaning a person can be considered to have possessed the firearm if “he

exercised, or had the power to exercise, dominion and control over the firearm.” United

States v. Wilson, 484 F.3d 267. 282 (4th Cir. 2007) (cleaned up). This can be established

“through direct or circumstantial evidence.” United States v. Smith, 21 F.4th 122. 140 (4th

Cir. 2021).

There was sufficient evidence supporting Robertson’s conviction for being a felon

in possession of a firearm. As indicated, Robertson stipulated that he was previously

convicted of a felony and knew of his status as a felon. And Robertson does not argue that

the firearm possession did not affect commerce. As to the possession element, the relevant

firearm was purchased by Robertson’s on-again-off-again girlfriend, Jones. It was found

in the home of another one of his girlfriends and the mother of his child—the house in

which Robertson was hiding at 6:00 AM—in a room where Robertson kept other

belongings. Further, police recovered a bullet from Robertson’s pocket with identical

markings as the bullets found in the firearm. This is sufficient evidence for a reasonable

juror to conclude beyond a reasonable doubt that Robertson constructively possessed the

firearm. See United States v. Jones, 945 F.2d 747. 749—50 (4th Cir. 1991) (concluding that

there was “ample evidence” of constructive possession where “police found the gun in [the

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defendant’s] bedroom and ammunition for the gun in his pocket”); United States v.

Jones, 204F.3d541.543—44 (4th Cir. 2000) (“Given that the cocaine ... was found behind

a dresser drawer in the bedroom from which the officer saw Jones exit and in which

authorities discovered Jones’ personal papers, we cannot say that the district court, sitting

as trier of fact, erred in finding that Jones possessed the cocaine.”); United States v. Griffin,

175 F. App’x 627. 630 (4th Cir. 2006) (per curiam) (determining that the defendant’s “early

morning presence in the bedroom where th[e] items were found” along with his personal

papers in the bedroom provided sufficient evidence to support a conviction for constructive

possession of the items). And, contrary to Robertson’s argument, this is true despite the

fact that the evidence is circumstantial because the Government can prove constructive

possession “through direct or circumstantial evidence.” Smith, 21 F.4th at 140.

Similarly, there was sufficient evidence to support Robertson’s convictions for

Hobbs Act robbery, which requires the Government to show: “(1) that the defendant

coerced the victim to part with property; (2) that the coercion occurred through the

wrongful use of actual or threatened force, violence or fear. . . ; and (3) that the coercion

occurred in such a way as to adversely affect interstate commerce.” United States v. Reed,

780 F.3d 260. 271 (4th Cir. 2015) (cleaned up). A defendant can also be convicted of aiding

and abetting Hobbs Act robbery. United States v. Ali, 991 F.3d 561. 574 (4th Cir. 2021).

Robertson argues that there was insufficient evidence that he participated in the

robberies. Notably, he concedes that his coconspirators’ testimony constituted evidence

that he participated in the robberies because it “is well settled in this circuit that the

uncorroborated testimony of an accomplice may be sufficient to sustain a conviction.”

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United States v. Baker, 985 F.2d 1248. 1255 (4th Cir. 1993). Nonetheless, Robertson

contends that his coconspirators’ testimony should have-been disregarded because they

were not credible. For example, Robertson posits that Ellison “barely had any recollection”

of the robberies and his testimony was vague. Opening Br. 22. He also states that all the

evidence that he participated in the 2014 robberies came from coconspirators who had

equivocated or lied in earlier proceedings.

These arguments all must fail because “[t]he jury, not the reviewing court, weighs

the credibility of the evidence and resolves any conflicts in the evidence presented. And,

in conducting such a review, [the Court] is obliged to view the evidence and all reasonable

inferences to be drawn therefrom in the light most favorable to the prosecution.” United

States v. Palacios, 677 F.3d 234. 250 (4th Cir. 2012) (citation omitted). As the district

court thoroughly explained, Robertson’s coconspirators—particularly Ellison—described

each of the robberies and summarized Robertson’s role in them. Accepting that testimony

as true, as the Court must in reviewing a motion for judgment of acquittal, a reasonable

juror could find Robertson guilty of the robberies beyond a reasonable doubt. As such,

Robertson’s challenges to the sufficiency of the evidence are without merit.4

4 Moreover, below, Robertson’s only sufficiency-of-the-evidence argument was that

there was insufficient evidence that “money or another thing of value was taken by Ellison

and his accomplices in the alleged robberies charged in Counts 2, 4, 5, 12,13 and 15.” LA*

817. He did not challenge the evidence of his involvement in the robberies. Therefore, we

can only correct the district court’s error if it was particularly egregious, which we do not

find here. See United States v. Hardy, 999 F.3d 250. 253—54 (4th Cir. 2021) (“When a

defendant fails to raise an argument in the district court, [the Court] may correct only

particularly egregious errors.” (cleaned up)).

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IV.

Robertson also argues that the district court abused its discretion by utilizing certain

jury instructions that he and the Government jointly proposed to the court. But we “fail to

see how the trial court abused its discretion based on [an] allegedly prejudicial instruction

when [Robertson] asked for it and thus invited the error.” United States v. Simmons, 11

F.4th 239. 263 (4th Cir. 2021); see also United States v. Mathis, 932 F.3d 242. 257 (4th

Cir. 2019) (declining to address an argument about an improper jury instruction where the

defendants “invited the claimed error”); United States v. Herrera, 23 F.3d 74. 75 (4th Cir.

1994) (“[A] court can not be asked by counsel to take a step in a case and later be convicted

of error, because it has complied with such request.” (citation omitted)). Thus, regardless

of the merit of Robertson’s claim, we decline to vacate Robertson’s convictions on this

ground. See Simmonsy 11 F.4th at 262 f“In the ordinary case. Defendants might have a

colorable argument that this instruction conflicts with our precedent.... But Defendants,

along with the Government, jointly proposed this instruction to the trial court.”).

V.

Robertson finally argues that the district court violated his speedy trial rights by

holding his retrial more than seventy days after his mistrial. Indeed, the Speedy Trial Act

requires that, in the event ofta mistrial, a defendant be brought to trial within seventy days

of “the date the action occasioning the retrial becomes final.” 18 U.S.C. § 3161feV

Although there are certain periods of delay that are excluded from computing the time

within which trial must begin, see id. § 3161(h), if more than seventy nonexcludable days

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pass without bringing the defendant to trial, the district court “shall” dismiss the indictment

“on motion of the defendant.” Id. § 3162(a)(2). However, failure to move for dismissal

prior to trial “shall constitute a waiver of the right to dismissal.” Id. And plain-error review

is unavailable for violations not timely asserted before trial begins. United States v.

‘ Mosteller, 741 F.3d 503. 507 (4th Cir. 2014).

Although Robertson stated multiple times that he wished to be tried as soon as

possible, he never moved for a dismissal prior to trial based on a speedy trial violation. In

fact, even when prompted, Robertson never objected to the district court’s trial schedule.

Accordingly, Robertson waived his right to assert a speedy trial violation and we need not

consider his argument further.

VI.

For the foregoing reasons, we affirm Robertson’s convictions.

AFFIRMED

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JURY INSTRUCTION

42

The Nature of the Offense Charged—Interference with Commerce bv Robbery—Counts

Two through Thirteen and Sixteen

Counts Two through Thirteen, and Count Sixteen, of the Amended indictment charge that

on the dates set forth in the Amended indictment, in the Eastern District of Virginia, defendant

delay and

CHRISTOPHER ROBERTON,

affect commerce as that term is defined in Title 18, United States Code, Section 1951(b)(3), and

the movement of articles and commodities in such commerce, by knowingly and willfully

committing robbery, as that term is defined by Title 18, United States Code, Section 1951(b)(1),

in that defendant ROBERTSON did unlawfully take and obtain property, consisting ofTlnited

States currency, from the persons of, and in the presence of. employees of the businesses set forth

in the Amended indictment, against the employees will by means of actual and threatened force,

violence and fear of injury, immediate and future to their person and property in their custody and

possession, that is. defendant ROBERTSON, as set forth in counts two through Thirteen, and

Hpj-panded money from the cash register belonging tn

businesses set forth in the

Amended indictment, and, as set forth in counts fourteen, fifteen, seventeen, nineteen and tweqty

through twenty-two, the defendant used, carried, and brandished a firearm.

In violation of Title 18, United States Code, Sections 1951(a) and 21

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JURY INSTRUCTION

41

Success of Conspiracy Immaterial

The government is not required to prove that the parties to or members of the alleged

agreement or conspiracy were successful in achieving any or all of the objects of the agreement or

conspiracy.

j

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JURY INSTRUCTION

43

The Statute Defining the Offense Charged—Interference with Commerce bv

Robbery—Counts Two through Thirteen and Sixteen

Section 1951 (a) of Title 18 of the United States Code provides, in part, that:

Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in

commerce, by robbery. . .or attempts. . .so to do, or commits or

threatens physical violence to any person .. .in furtherance of a plan

or purpose to do anything in violation of this section...

Shall be guilty of an offense against the United States.

j

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JURY INSTRUCTION

44

The Essential Elements of the Offense Charged— Interference with Commerce by

Robbery—Counts Two through Thirteen and Sixteen

In order to sustain its burden of proof for the crime of interfere with commerce by robbery,

as charged in Counts Two through Thirteen and Sixteen, of the Amended indictment, the

government must prove the following three essential elements beyond a reasonable doubt:

One:

Defendant CHRISTOPHER ROBERTSON, attempted to induce the victims, to

part with the property described in Counts 2-13 and 161 of the Amended

inHi^|rr>Pr't| tiamply TTnitPrj fifafreS CUrrenCVI

Two:

the defendant, CHRISTOPHER ROBERTSON, did so knowingly and

deliberately by robbery; and

Three:

In so acting, interstate commerce, or an item moving in interstate commerce was

delayed, obstructed or affected in any way or degree.

Only a minimal effect, however small, on interstate commerce is necessary to satisfy the

third element and the effect on commerce need only be probable or potential not actual.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 60 of 82 PagelD# 2253

JURY INSTRUCTION

48

Unlawful Taking bv Force. Violence or Fear

The second element the government must prove beyond a reasonable doubt is that the

defendant unlawfully took or attempted to take property against the victim’s will, by actual or

threatened force, violence, or fear of injury, whether immediately or in the future.

Tn considering whether the defendant used, or threatened to use force, violence or fear,

you should give those words their common and ordinary meaning, and understand them as you

normally would. A threat may be made verbally or by a physical gesture. Whether a statement

or physical gesture by the defendant actually was a threat depends upon the surrounding facts.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 59 of 82 PagelD# 2252

JURY INSTRUCTION

47

“Property”—Defined

The term “property” as used in these instructions means money, controlled substances, or

anything of value.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 41 of 82 PagelD# 2234

JURY INSTRUCTION

34

The Statute Defining the Offense Charged—Count One

Section 1951(a) of title 18 of the United States Code provides, in part, that:

... whoever in any way or degree obstructs, delays, or affects commerce or the movement

of any article or commodity in commerce, by robbery.. -onattempts ... so to do, or commits or

threatens physical violence to any person ... in furtherance of a plan or purpose to do anything in

violation of this section shall...

be guilty of an offense against die United States.

CohiSp'iRE I^gT

.i.;;

eluded

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 42 of 82 PagelD# 2235

JURY INSTRUCTION

35

The Essential Elements of the Offense Charged—Conspiracy to Interfere with

Commerce bv Robbery—Count One

In order to sustain its burden of proof for the crime of conspiracy to obstruct, delay or affect

interstate commerce by robbery, as charged in Count One of the Amended indictment, the

government must prove the following two essential elements beyond a reasonable doubt:

One:

the conspiracy, agreement or understanding to commit interference with

commerce by robbery as described in Count One of the Amended indictment,

was formed, reached, or entered into by two or more persons;

Two:

at some time during the existence or life of the conspiracy, agreement, or

understanding, the defendant knew the purpose(s) of the agreement; and with

knowledge of the purpose(s) of the conspiracy, agreement, or understanding, the

defendant deliberately joined the conspiracy, agreement or understanding.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 58 of 82 PagelD# 2251

JURY INSTRUCTION

46

"Robbery"—Defined

The term "robbery” means the unlawful taking(or obtainmgj)f personal property of another

against his will by threatening or actually using force, violence, or fear of injury, immediately or

in the future, to person or property.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 57 of 82 PagelD# 2250

committed or is about to be committed is not sufficient conduct for the jury to find that a defendant

aided and abetted the commission of that crime.

The government must prove that a defendant knowingly and deliberately associated

himself with the crime in some way as a participant—someone who wanted the crime to be

committed—not as a mere spectator.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 61 of 82 PagelD# 2254

JURY INSTRUCTION

49

Fear of Injury

As I have just instructed you, you must determine whether the defendant knowingly and

unlawfully threatened to use, force, violence, or fear, to unlawfully obtain the property.

exists if a victim experiences anxiety, concern,

.. The

existence of fear must be determined by the facts existing at the time of the defendant’s actions.

Your decision whether the defendant used or threatened fear of injury involves a decision

about the victim’s state of mind at the time of the defendant’s actions. It is obviously impossible

to ascertain or prove directly a person’s subjective feeling. You cannot look into a person’s mind

to see what his state of mind is or was. But a careful consideration of the circumstances and

evidence should enable you to decide whether fear would reasonably have been the victim’s state

of mind.

Looking at the situation and the actions of people involved may help you determine what

their state of mind was. You can consider this kind of evidence—which is called “circumstantial

evidence”—in deciding whether property was obtained by the defendant through the use or

threat of fear.

You may also consider the relationship between the defendant and the victim in deciding

whether the element of fear exists. However, a friendly relationship between the parties does not

mean that you cannot find that

fear exists.

\

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 62 of 82 PagelD# 2255

JURY INSTRUCTION

50

"Commerce"—Defined

The term "commerce" means commerce within the District of Columbia, or any territory

or possession of the United States; all commerce between any point in a state, territory, possession,

or the District of Columbia and any point outside thereof; all commerce between points within the

same state through any place outside such state; and all other commerce over which the United

States has jurisdiction.

j.:

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 18 of 82 PagelD# 2211

JURY INSTRUCTION

12

Consider Each Count Separately

/

A separate crime is charged in each count of the Amended indictment. Each charge, and

the evidence pertaining to it, should be considered separately by the jury. The fact that you may

find the defendant guilty or not guilty as to one of the counts charged should not control your

verdict as to any other count.

\

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 17 of 82 PagelD# 2210

JURY INSTRUCTION

11

Verdict as to Defendant Only

You are here to determine whether the government has proven the guilt of the

defendant for the charges in the Amended indictment beyond a reasonable doubt. You are

not called upon to return a verdict as to the guilt or innocence of any other person or

persons.

So, if the evidence in the case convinces you beyond a reasonable doubt of the guilt

of the defendant for the crimes charged in the Amended indictment, you should so find,

even though you may believe that one or more other unindicted persons are also guilty. But

if any reasonable doubt remains in your minds after impartial consideration of all the

evidence in the case, it is your duty to find the defendant not guilty.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 46 of 82 PagelD# 2239

JURY INSTRUCTION

37

Responsibility for Substantive Offenses

A member of a conspiracy who commits another crime during the existence or life of a

conspiracy and commits this other crime in order to further or somehow advance the goal(s) or

objective(s) of the conspiracy may be considered by you to be acting as the agent of the other

members of the conspiracy. The illegal actions of a conspirator in committing this other crime

may be attributed to other individuals who are then members of the conspiracy. Under certain

conditions, therefore, a defendant may be found guilty of this other crime even though he did not

participate directly in the acts constituting that offense.

If yqn find that the government has proven the defendant guilty of conspiracy as charged

in count one of the Amended indictment, beyond a reasonable doubt, you may also find the

defendant guilty of the crimes alleged in counts two through eighteen, and twenty through

twenty-two, of the Amended indictment, provided you find that the essential elements of those^

counts as defined in these instructions have been established beyond reasonable doubt and,

^provided further, that you also find beyond reasonable doubt, that

y^Qne: the substantive offenses described in counts two through eighteen, and twenty----^

through twenty-two, of the Amended indictment were committed by a member of the conspiracy

.^detailed in count one of the Amended indictment;

^

Two: the substantive crimes were committed during the existence or life of and in

furtherance of the goal(s) or objective(s) of the conspiracy detailed in count one of the Amended

indictment; and

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 45 of 82 PagelD# 2238

proven member of the conspiracy, may be considered by the jury as evidence against the defendant

under consideration even though he was not present to hear the statement made or see the act done.

This is true because, as stated earlier, a conspiracy is a kind of "partnership” so that under

the law each member is an agent or partner of every other member and each member is bound by

or responsible for the acts and the statements of every other member made in pursuance of their

unlawful scheme.

Case4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 56 of 82 PagelD# 2249

JURY INSTRUCTION

45

Aiding and Abetting

A person may violate the law even though he does not personally do each and every act

constituting the offense if that person “aided and abetted” the commission of the offense.

Section 2(a) of Title 18 of the United States Code provides:

“Whoever commits an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a principal.”

Before a defendant may be held responsible for aiding and abetting others in the

commission of a crime, it is necessary that the government prove beyond a reasonable doubt that

the defendant knowingly and deliberately associated himself in some way with the crime charged

and participated in it with the intent to commit the crime.

In order to be found guilty of aiding and abetting the commission of the crimes charged in

the Amended indictment, the government must prove beyond a reasonable doubt that the

defendant:

One, knew that the crime charged was to be committed or was being committed,

Two, knowingly did some act for the purpose of aiding, commanding, or

encouraging the commission of that crime, and

Three, acted with the intention of causing the crime charged to be committed.

Before a defendant rpay be found guilty as an aider or an abettor to the crime, the

government must also prove, beyond a reasonable doubt, that some person or persons committed

each of the essential elements of the offense charged as detailed for you in these instructions.

Merely being present at the scene of the crime or merely knowing that a crime is being

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 55 of 82 PagelD# 2248

COUNT

A

fff v

TWO

DATE

September 24, 2013

THREE

October 1, 2013

FOUR

October 6, 2013

FIVE

October 8, 2013

SDC

October 13, 2013

SEVEN

December 4, 2014

EIGHT

December 6, 2014

NINE

December 6, 2014

TEN

December 10, 2014

ELEVEN

December 11, 2014

TWELVE

December 12, 2014

THIRTEEN

December 13, 2014

i/e*

■if */c V’Jcv

SIXTEEN

\

December 8, 2014

LOCATION

Gulf Gas Station, 2120 Plank

Road, Fredericksburg,

Virginia

Captain D’s, 2626 Princess

Anne Street, Fredericksburg,

Virginia

Big Lots, 4318 George

Washington Highway,

Yorktown, Virginia

Fast Mart, 5166 Mudd Tavern

Road, Spotsylvania, Virginia

Food Lion, 7100 Salem

Fields Biyd=4pQtsylvania,

Virgini^Attempt)

Citgo Gas Station, 780 J.

Clyde Morris Ave., Newport

News, Virginia

Shell Gas Station, 600

Hampton Highway,

Yorktown, Virginia

Hop and Shop, 12961

Jefferson Avenue, Newport

News, Virginia

Smoke Shop, 3115 Western

Branch Blych^^liesapeake,

Virgini af/Attempt)^

Mini-MartrGreeffTvleadows

Drive, Virginia Beach,

Virginia

Gulf Gas Station, 2120 Plank

Road, Fredericksburg,

Virginia

Subway Restaurant, 9817

Jefferson Davis Hwy,

Fredericksburg, Virginia

Shell Gas Station, 10732

Jefferson Avenue, Newport

News, Virginia_________

Case 4:18-cr-00Q27-DJN-LRL Document 222 Fifed 02/11/21 Page 68 of 82 PagelD# 2261

JURY INSTRUCTION

55

“Crime of Violence”—Defined

The term “crime of violence” means an offense that is a felony and has as one of its

essential elements the use, attempted use, or threatened use of physical force against the person

or property of another, or an offense that by its very nature involves a substantial risk that such

physical force may be used in committing the offense. The offenses alleged in (founts one^

through thirteen and sixteen of the Amended indictment are(grime^~of violence^

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 67 of 82 PagelD# 2260

COUNT

DATE

LOCATION

SEVENENTEEN

December 4, 2014

FOURTEEN

December 6, 2014

EIGHTTEEN

December 6, 2014

Citgo Gas Station, 780 J.

Clyde Morris Ave., Newport

News, Virginia

Shell Gas Station, 600

Hampton Highway,

Yorktown, Virginia

Hop and Shop, 12961

Jefferson Avenue, Newport

News, Virginia

TWENTY

December 11, 2014

Mini-Mart, Green Meadows

Drive, Virginia Beach,

Virginia

ELEVEN

TWENTY-ONE

December 12,2014

TWELVE

TWENTY-TWO

December 13,2014

FIFTEEN

December8, 2014

Gulf Gas Station, 2120 Plank

Road, Fredericksburg,

Virginia

Subway Restaurant, 9817

Jefferson Davis Hwy,

Fredericksburg, Virginia

Shell Gas Station, 10732

Jefferson Avenue, Newport

News, Virginia___________

\

J

UNDERLYING ALLEGED

OFFENSE

SEVEN

EIGHT

NINE

THIRTEEN

SIXTEEN

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 66 of 82 PagelD# 2259

JURY INSTRUCTION

54

Elements of the Offense - Counts Fourteen^ Fifteen. Seventeen, Eighteen, and Twenty

through Twentv-Two

In order to sustain its burden of proof for the crime of using or carrying a firearm during

and in relation to a crime of violence as charged in counts fourteen, fifteen, seventeen, eighteen,

and twenty through twenty-two of the Amended indictment, the Government must prove the

following essential elements beyond a reasonable doubt:

One: the defendant, CHRISTOPHER ROBERTSON, aided and abetted by othersfamb

along with other conspirators, knowingly -uspH r>r rampH a firearm as described in the

Amended indictment;’

Two: during and in relation to the commission of those crimes, the defendant,

CHRISTOPHER ROB

firearm, and

.

■>

Three: the defendant’s use or carrying of the firearm was during and in relation to

/

crimes of violence identified in counts Seven through Nine, Eleven through Thirteen, and

Sixteen of the Amended indictment.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 65 of 82 PagelD# 2258

JURY INSTRUCTION

53

Statute Defining the Offense - Counts Fourteen, Fifteen, Seventeen. Eighteen, and

Twenty through Twenty-Two

Section 924(c) of Title 18 of the United States Code provides, in pertinent part, that

"whoever, during and in relation to any crime of violence ... for

which the person may be prosecuted in a court of the united states,.

.. uses or carries a firearm,..., shall....

be guilty of an offense against the united states.

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 64 of 82 PagelD# 2257

JURY INSTRUCTION

52

Nature of the Offense - Counts Fourteen. Fifteen. Seventeen, Eighteen, and Twenty

through Twentv-Tvvo

Counts Fourteen, Fifteen, Seventeen, Eighteen, and Twenty through Twenty-Two, of

the Amended indictment charge that on the dates set forth in the second

superseding

indictment, in the Eastern District of Virginia, CHRISTOPHER ROBERTSON, did unlawfully

and knowingly use, carry and brandish a firearm, as an aider and abettor, during and in relation

to crimes of violence for which he may be prosecuted in a court of the United States, to wit:

interfere with commerce hv robbery, as set forth in counts seven through nine, eleven through

thirteen, and sixteen, of the Amended indictment.

s. y

5

j)

Case 4:18-cr-00027-DJN-LRL Document 222 Filed 02/11/21 Page 63 of 82 PagelD# 2256

JURY INSTRUCTION

51

Obstructs. Delays, or Affects Commerce—Defined

The term “obstructs, delays, or affects commerce” means any action which, in any manner

or to any degree, interferes with, changes, or alters the movement or transportation or flow of

goods, merchandise, money, or other property in commerce.

Count one of the Amended indictment alleges that the defendant took property consisting

of United States currency, belonging to the businesses named in the Amended indictment from

employees of the businesses set forth in the Amended indictment, against the employees will by

means of actual and threatened force, violence, and fear of injury, immediate or future, to their

persons and demanding money from the cash register belonging to the business.

At all times material to the charges, the businesses were commercial entities engaged in

the provision of goods and services in interstate commerce and businesses which affect interstate

commerce.

It is not necessary for the government to prove that the defendant actually intended to

obstruct, delay, or affect commerce. The government must prove beyond a reasonable doubt,

however, that the defendant deliberately performed an act, the ordinary and natural consequences

of which would be to obstruct, delay, or affect commerce, and that commerce was, in fact,

obstructed, delayed or affected.

I

l

T

I

Case 4:18-cr-00027-DJN-LRL Document 200 Filed 11/03/20 Page 73 of 78 PagelD# 2029

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

UNITED STATES OF AMERICA

v.

CHRISTOPHER ROBERTSON,

Defendant.

)

)

)

)

)

)

)

Criminal No. 4:18cr27

SPECIAL VERDICT FORM

We the jury, unanimously find the defendant, CHRISTOPHER ROBERTSON:

COUNT 1:

With respect to Count 1, Conspiracy to Commit Robbery:

Guilty,

COUNT 2;

With respect to Count 2, Interfere with Commerce by Robbery:

Guilty

COUNT 3:

Not Guilty

With respect to Count 4, Interfere with Commerce by Robbery:

Guilty,

COUNT 5:

Not Guilty

With respect to Count 3, Interfere with Commerce by Robbery:

Guilty

COUNT 4:

Not Guilty,

Not Guilty,

With respect to Count 5, Interfere with Commerce by Robbery:

j.;

Guilty,

COUNT 6:

Not Guilty,

With respect to Count 6, Interfere with Commerce by Robbery:

Guilty

Not Guilty

Case 4:18-cr-00027-DJN-LRL Document 200 Filed 11/03/20 Page 74 of 78 PagelD# 2030

COUNT 7:

With respect to Count 7, Interfere with Commerce by Robbery:

Guilty

COUNT 8:

With respect to Count 8, Interfere with Commerce by Robbery:

Guilty

COUNT 9:

Not Guilty

Not Guilty

With respect to Count 9, Interfere with Commerce by Robbery:

Guilty

Not Guilty

COUNT 10; With respect to Count 10, Interfere with Commerce by Robbery:

Guilty

Not Guilty

COUNT 11: With respect to Count 11, Interfere with Commerce by Robbery:

Guilty

Not Guilty

COUNT 12: With respect to Count 12, Interfere with Commerce by Robbery:

Guilty

Not Guilty

COUNT 13: With respect to Count 13, Interfere with Commerce by Robbery:

Guilty

Not Guilty

COUNT 14: With respect to Count 14, Use, Carry, and Brandish a Firearm

During a Crime of Violence:

Guilty

Not Guilty

NOTE: If your answer to Count 14 is “Not Guilty,” do not answer the following question;

Simply proceed directly to Count 15. If your answer for Count 14 is “Guilty,” please

answer the following question for Count 14.

With respect to Count 14, mark all that apply in regard to the firearm.

During qnd in relation to the crime of violence the defendant:

Carried the firearm

Brandished the firearm

Case 4:18-cr-00027-DJN-LRL Document 200 Filed 11/03/20 Page 75 of 78 PagelD# 2031

COUNT 15: With respect to Count 15, Use, Carry, and Brandish a Firearm

during a Crime of Violence:

Guilty

Not Guilty

NOTE: If your answer to Count 15 is “Not Guilty,” do not answer the following question;

Simply proceed directly to Count 16. Tf your answer for Count 15 is “Guilty,” please

answer the following question for Count 15.

With respect to Count 15, mark all that apply in regard to the firearm.

During and in relation to the crime of violence the defendant:

Carried the firearm

Brandished the firearm

COUNT 16: With respect to Count 16, Interfere with Commerce by Robbery:

Guilty_

Not Guilty

COUNT 17: With respect to Count 17, Use, Carry and Brandish a Firearm

During a Crime of Violence:

Guilty

Not Guilty

NOTE: If your answer to Count 17 is “Not Guilty,” do not answer the following question;

Simply proceed directly to Count 18. If your answer for Count 17 is “Guilty,” please

answer the following question for Count 17.

With respect to Count 17, mark all that apply in regard to the firearm.

During and in relation to the crime of violence the defendant:

Carried the firearm

Brandished the firearm

COUNT 18: With respect to Count 18, Use, Carry and Brandish a Firearm

During a Crime of Violence:

Guilty

Not Guilty,

Case 4:18-cr-00027-DJN-LRL Document 200 Filed 11/03/20 Page 76 of 78 PagelD# 2032

NOTE: If your answer to Count 18 is “Not Guilty,” do not answer the following question;

Simply proceed directly to Count 20. If your answer for Count 18 is “Guilty,” please

answer the following question for Count 18.

With respect to Count 18, mark all that apply in regard to the firearm.

During and in relation to the crime of violence the defendant:

Carried the firearm

Brandished the firearm

COUNT 20: With respect to Count 20, Use, Carry, and-Brandish a Firearm:

Guilty

Not Guilty

NOTE: If your answer to Count 20 is “Not Guilty,” do not answer the following question;

Simply proceed directly to Count 21. If your answer for Count 20 is “Guilty,” please

answer the following question for Count 20.

With respect to Count 20, mark all that apply in regard to the firearm.

During and in relation to the crime of violence the defendant:

Carried the firearm

Brandished the firearm

COUNT 21: With respect to Count 21, Use, Carry and Brandish a Firearm:

Guilty

Not Guilty

NOTE: If your answer to Count 21 is “Not Guilty,” do not answer the following question;

Simply proceed directly to Count 22. If your answer for Count 21 is “Guilty,” please

answer the following question for Count 21.

With respect to Count 21, mark all that apply in regard to the firearm.

During and in relation to the crime of violence the defendant:

Carried the firearm

Brandished the firearm

?

;

1

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

NEWPORT NEWS DIVISION

2

3

4

UNITED STATES OF AMERICA

5

v.

6

CHRISTOPHER ROBERTSON

7

)

)

)

)

)

)

Criminal Case No.:

4:18 CR 27

August 12,

2021

8

9

TRANSCRIPT OF SENTENCING

BEFORE THE HONORABLE DAVID J. NOVAK

UNITED STATES DISTRICT COURT JUDGE

10

11

12

APPEARANCES:

13

Peter G. Osyf, Esquire

OFFICE OF THE UNITED STATES ATTORNEY

721 Lakefront Commons

Suite 300

.. .

Newport News, Virginia 23606

14

15

16

Counsel on behalf of the United States

17

18

19

Fernando Groene, Esquire

FERNANDO GROENE, P.C.

364 McLaws Circle

Suite 1A

Williamsburg, Virginia 23185

- Pi^zq-Gto^iz.)

20

Counsel on behalf of the Defendant

21

i

22

23

24

25

TRACY J. STROH, RPR

OFFICIAL COURT REPORTER

UNITED STATES DISTRICT COURT

/)

\

L

2

1

{The proceeding commenced at 10:31 a.m.)

2

THE CLERK:

3

United States of America v.

Counsel,

7

MR.

9

10

11

Christopher Robertson.

The government is represented by Peter Osyf.

6

8

the

The defendant is represented by Fernando Groene.

4

5

Criminal matter 4:18 CR 27,

morning,

are we ready to proceed?

The United States is ready.

OSYF:

Good

Your Honor.

MR.

GROENE:

Good morning,

Judge.

We’re ready

to proceed.

THE COURT:

All right.

We're going to proceed.

12

You all are going to keep your masks on while you’re over

13

at counsel table.

14

otherwise have to speak,

15

mask down just so the court reporter can hear you.

But when you come up to the lectern,

I'm going to ask you to take your

16

Let ' s start off,

17

motion for the new trial.

18

the opinion already,

19

MR.

GROENE:

Mr.

I denied, this morning,

Groene?

I got a copy of the opinion,

I haven't had a chance to look at it.

21

the last sentence.

THE COURT:

the

I gather you've got a copy of

20

22

or

I just looked at

I'll give you the short story.

23

agreed to the jury instructions.

24

instructions.

25

me to give.

Judge.

You

You gave me the

I gave what you told me

what you wanted

I asked you repeatedly,'do you have any

3

1

objections to the jury instructions.

2

after I gave the instructions,

3

You’re stuck with it.

4

MR. GROENE:

5

it.

Well,

You said no.

You said no.

I asked you.

I understand.

Even

I haven't read

I will read it.

6

THE COURT:

I just gave the

7

MR. GROENE:

I understand the short version.

8

may I ?

just want to make sure that

THE COURT:

Why don't you go on up to the

11

MR. GROENE:

Oh, yeah.

12

Good morning, Judge.

9

10

I

lectern.

Thank you.

May it please the Court.

13

I just want to make sure that the Court had considered my

14

pleading from yesterday.

15

THE COURT:

Which plea was that?

16

MR. GROENE:

The reply to the government's

18

THE COURT:

Yeah,

19

MR. GROENE:

Oh, okay.

20

and yesterday was the sixth day.

21

to make sure.

17

22

23

24

25

position.

THE COURT:

I read it.

Because it was six days

That's all.

You didn't say anything new, though.

If you had said anything new -- I mean,

MR. GROENE:

I just want

I was ready to

I never say anything new, Judge.

try to say it many times, but it's

it 1 s new the first

I

4

1

t ime .

I know.

But what I'm saying to you

2

THE COURT:

3

is that's my point.

My point was your focus is on the

4

jury instructions.

But they were jointly submitted.

5

asked you repeatedly if you had any objections to it.

6

said no.

You can't complain now after I gave you what

7

wanted.

So

okay.

8

MR.

GROENE:

9

THE COURT:

10

MR.

11

THE COURT:

12

13

GROENE:

So I denied it.

All right.

I understand.

Let's get moving and grooving here.

I just want to make sure that you saw that.

All right.

So we're now here for sentencing.

The probation officer calculated a Criminal History

15

Category VI,

16

has made an objection as to the abduction enhancement,

17

believing that the enhancement should have been two

18

levels -- that was really applicable for a physical

19

restraint -- as opposed to the four-point abduction

20

enhancement.

22

23

You

I understand.

14

21

I

an offense level of 32.

However,

the defense

I think that objection is well taken.

I intend

to grant it .

Did you want to say anything, Mr.

24

think it's going to

25

MR. OSYF:

I would,

Your Honor,

Osyf?

if I may.

I don't

5

1

THE COURT:

You do?

2

MR.

Yes.

3

THE COURT:

All right.

Have at it.

4

MR.

Your Honor,

regarding the abduction

OSYF:

OSYF:

5

enhancement,

there are two cases I

6

the Court has reviewed before making its ruling.

1

that's United States v.

THE COURT:

Let me just

9

MR.

Excuse me?

THE COURT:

10

11

hold on a second.

Never doubt that I've reviewed

something.

OSYF:

Okay.

12

MR.

13

THE COURT:

Do you understand that?

14

MR.

I do.

15

THE COURT:

OSYF:

16

I 1m ready to go.

17

about it.

18

MR.

19

cases in the

20

If you write something,

I read it.

If you got something new to say,

OSYF:

THE COURT:

Okay.

Then do you want to tell me

why he didn’t do his job,

22

MR.

23

THE COURT:

Go ahead.

24

MR.

I don't know,

OSYF:

OSYF:

I'm all

I don't believe Mr. Hurt cited these

21

25

And

Nale

8

OSYF:

just want to make sure

then?

I can't speak for that,

Your Honor.

and he's in trial.

I'll be sure to ask him after the hearing.

But

6

1

THE COURT:

All right.

2

MR.

But United States v.

OSYF:

Nale,

And

It's a Fourth Circuit case from 1996.

3

1000 .

4

United States v.

5

Fourth Circuit case in 2008.

Osborne,

514 F.3d 377,

United States v.

6

101 F.3d

a subsequent

Both published opinions.

Nale -- actually,

let me start

And this is a quote from

1

with Osborne,

which cites Nale.

8

Osborne,

9

definition of abducted in only one published decision,

"We have previously assessed the guidelines

10

1996 decision in United States v.

11

that case"

THE COURT:

12

13

Nale.

our

We recognized in

Why don't you slow down.

I think

you're killing the court reporter.

MR.

14

OSYF:

Sorry.

"as Osborne acknowledges

that even a temporary abduction -

i.e.,

one with

15

here,

16

minimal movement of the victim or that lasts only a short

17

duration

18

the sentencing guidelines."

can constitute an abduction for purposes of

THE COURT:

19

Again,

quoting Nale at 1003.

Osborne also says,

"The offender

20

must force the victim to accompany him to a different

21

location."

22

MR.

23

THE COURT:

24

25

OSYF:

That is correct.

Directing a victim into the freezer

is not accompanying them.

MR.

OSYF:

Understood,

Your Honor.

7

THE COURT:

1

2

4

MR.

OSYF:

Okay.

Point taken,

Your Honor.

Okay.

All right.

I’m granting -

Thank you.

THE COURT:

5

6

did you want to say anything else?

7

your favor.

Mr.

MR.

9

THE COURT:

GROENE:

No,

Judge.

All right.

objection.

11

Category VI,

12

through Thirteen and Sixteen.

an offense level of 30 for the Counts One

Now,

arguments,

That's 168 to 210 months.

I will say this.

I mean,

obviously,

GROENE:

15

MR.

16

THE COURT:

17

MR.

18

THE COURT:

19

I'm going to grant the

That leaves us with a Criminal History

10

13

I'm going to rule in

Groene?

8

14

It cuts

It doesn't cut in favor of you.

against you.

3

I’ve looked at Osborne.

GROENE:

Just so you know on your

the 924(c)

counts are

You're talking to me,

No.

Oh,

Judge?

I'm just saying to both of you.

okay.

I want to tell you before you argue,

right ?

That the 924(c)

20

counts,

you know,

because they

are what's going to drive this bus,

21

are consecutive here,

22

right?

23

just for a second.’ Because Count Twenty-three was severed

24

and tried before Judge Allen as a separate offense,

25

And going back and looking at the record,

But I did want to speak about Count Twenty-three

right ?

that seems to me

8

1

to relate to the seizure of the firearm when he was

2

arrested,

3

MR.

4

THE COURT:

5

Am I right about that?

hiding up in the attic.

OSYF:

That's correct,

Your Honor.

So my intention is to give a

consecutive sentence on that count.

The reason it was severed is because it's

6

separate from the others,

8

the robberies that were involved here.

9

you both so you know what you're looking at when you

10

argue.

So,

Mr.

13

MR.

OSYF:

14

THE COURT:

Osyf,

do you have any evidence you want

to offer?

15

the victims.

16

right ?

No evidence,

And none of them want to be heard;

18

THE COURT:

19

any evidence you want to offer?

MR.

If I may,

OSYF:

That’s correct,

MR.

20

GROENE:

THE COURT:

23

MR.

said,

25

922 (g)

All right.

is that

Your Honor.

Mr.

Groene,

do you have

I don't have any evidence,

Judge.

I have a question.

22

24

Your Honor.

I understand you gave notice to all

17

21

So I say that to

All right.

11

12

right?

And it is different than

7

GROENE:

Yeah.

So in light of what the Court just

the severed count,

count .

Go ahead.

the

- Count Twenty-three is a

9

1

THE COURT:

2

MR.

3

THE COURT:

I know that.

4

MR.

Okay.

5

THE COURT:

6

Right.

GROENE:

GROENE:

It's not a mandatory.

I'm explaining to you why,

though.

Here's what I'm looking at.

7

MR.

GROENE:

No.

8

make sure that the Court

9

I

I understand.

I just want to

I know the Court knows it,

but

just want to make sure on the record that the Court

10

knows that it's not a mandatory count.

11

in possession count.

12

THE COURT:

It ' s just a felon

I understand that.

13

out just for one second.

14

MR.

15

THE COURT:

GROENE:

Okay.

Hear me

Okay?

I will.

It seems to me that what I intend to

16

do here for the substantive robbery counts is to run those

17

concurrent,

18

robberies are all going to be consecutive,

19

what's going to jack up the sentence for him.

20

but the

So to me,

because the 924(c)

though,

counts on the

those are

Count Twenty-three,

All right?

whether

21

it's consecutive or concurrent is really largely in my

22

discretion under the guidelines.

23

And I'm explaining

I believe I have a

24

responsibility under the case law to explain why I intend

25

to run that sentence consecutive.

It's not mandatory like

10

1

It’s discretionary.

the 924 (c)s.

I’m exercising my discretion because in my mind,

2

all the other counts are robbery driven.

3

the other

4

This one is a separate criminal episode.

5

his arrest,

he had another firearm.

6

therefore,

that it's appropriate to run that consecutive.

7

In fact,

8

You moved to

9

counsel.

At the time of

And I believe,

that's the very reason he had a separate trial.

I don’t know if it was you or prior

10

MR.

GROENE:

11

THE COURT:

We did.

All right.

Moved to sever the count

because you said it was a separate episode,

which would

12

is

13

be prejudicial to him here,

you know,

14

counts.

He had a trial.

15

convicted.

I believe he should get a consecutive

16

sentence

whatever that may be

17

it's a different criminal episode.

18

That was granted.

on the robbery

He was

on that count because

And I wanted to explain that to you before we --

19

you argue so you understand the structure that I'm

20

thinking about when you make your argument.

21

make sense?

22

MR.

23

THE COURT:

Okay.

24

All right.

Now,

25

GROENE:

Does that

It does.

after you were convicted,

All right.

Mr.

Robertson,

you'll recall,

I ordered that a presentence

11

1

2

THE DEFENDANT:

3

THE COURT:

4

Do you remember that?

report be prepared for you.

Yes,

I do.

And was the report brought to you

and gone over with you by Mr. Groene?

5

THE DEFENDANT:

6

THE COURT:

Now,

Yes.

other than the legal argument

7

that I've just ruled in your favor on, did you have any

8

other items that you believe to be in error?

9

THE DEFENDANT:

10

THE COURT:

11

sir.

All right.

Thank you.

You can have

a seat.

So we're going to adopt the presentence report

12

13

No,

as

MR. GROENE:

Judge, may I interrupt you,

16

THE COURT:

Go ahead.

17

MR. GROENE:

He

18

THE COURT:

Mr. Robertson, you can have a seat.

19

MR. GROENE:

There is nothing else in the PSR

14

15

if I

may?

There

20

that really affects the guidelines or the sentence.

21

are a couple of other things that Mr. Robertson has

22

brought up to my attention, and I have tried to verify

23

those.

24

not affect the guidelines.

25

They only affect the classification that the BOP will

Unfortunately, records are not available.

They do

They do not affect the PSR.

12

1

impose.

To some extent,

2

the Court may

over what it does,

may or may not

but

may not

3

have any power over

4

whatever the Court does may carry some weight with the BOP

5

with regards to the classification.

6

just mention it because I want the record to be clear.

8

MR.

GROENE:

THE COURT:

Judge,

it's paragraph 200,

page 23,

Hold on.

Just one at a time.

Hold

on a second.

13

MR.

14

THE COURT:

15

MR.

16

THE COURT:

17

MR.

18

there,

19

Court

20

then.

and paragraph 201

11

12

I need to rule on them,

Just tell me what the page and the paragraph.

9

10

Well,

THE COURT:

7

I will

And those

but Mr.

GROENE:

Yes,

sir.

Page 23.

GROENE:

Paragraph 200.

All right.

GROENE:

Just hold on one second.

And there is really nothing to do

Robertson wanted me to mention to the

THE COURT:

Okay.

21

brandish of a firearm?

22

MR.

GROENE:

What do you want me to

the

That the BOP classifies that as a

It's really not a crime of violence.

23

crime of violence.

24

So there's really nothing to do with that.

25

just wanted me to mention that to the Court.

Mr.

Robertson

However

13

2

You're

just pontificating.

3

MR.

4

THE COURT:

5

MR.

6

So there's no objection.

THE COURT:

1

GROENE:

No objection.

Correct.

All right.

Now,

GROENE:

however,

in paragraph 201,

and

this is at the top of page 25 for Your Honor.

7

THE COURT:

8

what you're saying.

MR.

Bottom of 24.

GROENE:

Yes,

10

THE COURT:

Okay.

11

MR.

9

It bleeds into 25 is

sir.

Go ahead.

So the last paragraph says that

GROENE:

12

some show cause summons have been issued in 2007 and

13

late 2007 and that charge Mr.

14

from supervision.

Mr.

15

Robertson with absconding

Robertson claims that he never absconded and

16

that the letters that were sent over to the general

17

district court indicated that he had not completed his

18

probation.

19

They have been purged.

I went to look for those records recently.

Because

20

before -- because it says absconding

21

here,

now BOP will actually classify him,

22

before,

23

classification, which -- point enhancement,

24

actually

25

actually put him in a worse position.

with an absconder.

with the BOP,

as they have

So that's a two-level

which

not with the guidelines,

which

14

So he just wanted me to raise that with the

1

2

Court.

THE COURT:

3

4

sentencing.

Well,

I'm going to deny that -- your objection.

First of all,

5

it’s not relevant for

I need some evidence of that.

it's no impact on the sentence.

it1s

I'm

6

secondly,

7

certainly not holding that against him in any way when

8

looking at the sentencing.

9

objection.

So I'm going to deny that

10

MR.

11

THE COURT:

Do you have anything else?

12

MR.

Other than that,

13

further,

GROENE:

GROENE:

sir.

there is nothing

Judge.

THE COURT:

14

Yes,

But

So we're going to

15

proceed,

16

the offense level 30.

17

All right.

All right.

Mr.

MR. OSYF:

Your Honor,

I believe in light of the

18

then,

All right.

with the Criminal History Category VI and

Osyf,

do'you want to

be heard?

19

that the government's request for

20

Court's rulings,

21

744 months still falls within the guideline range,

22

of the consecutive 84 months,

23

for the 922(g).

24

that

25

on top

with a consecutive sentence

I don't think I'm mistaken in that.

THE COURT:

Well,

And

you know you could -- you had

15

if you wanted to,

the ability,

2

to be stacked.

3

that the second and third convictions for the 924 (c)s

4

would be stacked.

5

You didn't ask for that,

6

that.

I mean,

there's case law that suggests

Instead of 70,

I think it goes to 20.

You could have asked for

though.

You didn't.

MR.

7

We did not,

OSYF:

8

think we can in light of Jones,

9

don't think we can do that.

THE COURT:

10

11

to ask the 922

924(c)s

1

going to do it.

MR.

12

Well,

Your Honor.

And I don't

I

if I'm not mistaken.

it doesn't matter.

I'm not

So

Your Honor,

OSYF:

so the government feels

13

that 744 months is sufficient but not greater than

14

necessary.

15

Court sat through a lengthy trial and is well familiar

16

with the facts.

And I'm not going to belabor the point.

The

In light of the defendant's position paper,

17

18

though,

I would just like to point out a couple things;

19

that Mr.

Robertson is a smart,

20

every privilege in life,

21

He has virtually no issues other than some minor medical

22

issues .

23

throughout his life.

24

Mr.

25

capable being.

loving family,

No mental health issues.

He has had

supportive family.

Some marijuana use

But there's absolutely no reason for

Robertson's behavior here.

Further,

the defendant raises a point of a

16

Given the role that

1

discrepancy in the sentences here.

2

Mr. Robertson played here,

3

striking fear into the victims of the convenient stores

4

himself by pointing firearms in their faces,

5

orchestrate this entire thing.

6

people to do that and,

7

Ms.

8

are felons and are facing significant time because of his

9

conduct and his cowardly way,

Jones,

Mr.

he may not have been the one

but he did

He did manipulate other

in so doing,

destroyed the lives of

Ellison and Mr. Keaton,

They

irrevocably.

honestly,

of going about it,

10

by refraining from getting involved for fear of telling

11

his cohorts that a retina scan would dime him out if he

12

walked into these stores,

13

them.

THE COURT:

14

which we heard from each one of

Let's talk about

let's break

15

down -- their request for a variance is based upon what

16

they would say is a disparate sentence,

On Keaton,

17

right?

he’s a juvenile,

and he was recruited

I don't think he's at all

while he may have

18

into that.

19

been culpable in the robberies because he drew a gun on a

20

number of them,

21

different category.

because of his age,

Aquilla Jones,

22

23

manipulated there.

24

either.

25

again,

he's

just in a

recruited for love,

really

I don't find her to be comparable

But Ellison is.

I think Ellison is somebody you

17

1

have to look at to say why is it he's getting 196 months

2

and you're asking for 744 here,

3

4

I believe.

What was his criminal history category?

recall?

5

MR.

6

THE COURT:

All right.

7

MR.

I want to say perhaps III,

8

OSYF:

OSYF:

I don't recall,

Your Honor.

THE COURT:

10

want to say about that point?

11

that's really the comparable.

12

MR.

OSYF:

All right.

Well,

what else do you

Because that's the one

I do agree with the Court that he is

However,

13

the most comparable of the three.

14

there are significant differences there.

Mr.

15

Ellison,

though not a minor,

16

Clearly very impressionable.

17

demeanor throughout the process,

18

Mr.

19

no contrition whatsoever.

Robertson's demeanor,

20

THE COURT:

24

25

I still think

was young.

The Court saw Mr.

juxtapose with

which is very stoic.

By the way,

Ellison's

It shows

Ellison had a Criminal

History Category V.

22

23

but I'm

not sure.

9

21

Do you

MR.

OSYF:

Okay.

I'm sorry,

Your Honor.

I

misspoke.

THE COURT:

175 months.

And his guideline range was 140 to

Plus the firearm counts,

right?

18

But at the same time, he also cooperated too.

1

2

He testified.

So

3

MR. OSYF:

That's correct, Your Honor.

4

THE COURT:

He was sentenced by Judge Davis.

5

Have you filed a motion to reduce his sentence?

6

MR. OSYF:

7

I don't believe it's been filed yet,

but it is forthcoming.

8

THE COURT:

Do you intend to do that?

9

MR. OSYF:

I'm sorry?

10

THE COURT:

Do you intend to do that?

11

MR. OSYF:

I believe so, yes.

12

THE COURT:

So he's going to get less than

13

the 196.

So

go ahead.

14

MR. OSYF:

And,

again, to that point,

15

Your Honor, he did cooperate.

16

most important aspect of criminal law is whether somebody

17

is

18

Mr. Ellison did that.

19

fear of his life.

20

We had,

He

I believe the single,

accepts responsibility for their actions.

in a

He testified more than once for

the previous

which I think I

21

can mention that now outside of a jury, the previous

22

trial, there was two defendants that were cooperating that

23

changed their testimony for fear of Mr. Robertson,

24

that psychological hold he still had on them.

25

Mr. Ellison struggled with both trials to

for

19

1

testify.

He was young.

He was impressionable.

Testimony

2

came out about how Mr. Robertson manipulated him in

3

prison.

4

to Georgia in between,

5

separate groups of robberies, and Mr. Robertson recruited

6

him back, pulled him back in and very much manipulated

7

Mr. Ellison.

8

words.

9

and I believe at sentencing as well.

10

mitigating factors there.

11

is far more of a comparator than Ms. Jones or Mr. Keaton,

12

but there is still no discrepancy with such a sentencing

13

gap here.

Mr. Ellison tried to remove himself by going down

in that break between the two

Mr. Ellison is slow,

for lack of better

He has developmental issues that were brought out

Part of the

So I do agree that Mr. Ellison

Mr. Robertson very much masterminded this whole

14

again, the

15

thing, destroyed the lives of not just the

16

victims in the 13 stores but also these 3 people, to

17

include Ms. Jones as the mother of one of Mr. Robertson's

18

children.

19

these victims is

20

pretty much only harmed himself and,

21

of responsibility for that.

22

cooperated, and has been contrite.

23

vision of contrition from Mr. Robertson.

24

25

The impact that he had had on these lives and

is exponential, whereas Mr. Ellison

again, was accepting

Came forward multiple times.

There's no

no

And, again, the government understands it's well

within his right to assert his innocence and pursue his

20

1

freedom through the criminal justice system,

but again and

2

again pushed and pushed and pushed and asserts that he has

3

nothing to do with this when he clearly did.

4

finder made reasonable inferences and determined that he

5

was culpable for these crimes.

And a fact

And we think that 744 months is sufficient but

6

7

not greater than necessary to account for these and

8

hopefully deter Mr.

9

in the past have not deterred him.

His behavior has only

10

escalated despite the fact,

again,

all the things that he

11

has in life going for him.

He made a conscious choice to

12

do

Robertson,

to act in this manner.

13

THE COURT:

14

MR.

GROENE:

because clearly sentences

That's all,

All right.

Yes,

sir,

15

going to make a closing argument.

16

and you've read everything,

17

transcript.

Mr.

Groene.

Judge.

Judge,

I'm not

You heard the evidence,

and I'm sure you read the

I disagree with Mr. Osyf.

18

Your Honor.

Mr.

Ellison

He wasn't due by anybody.

19

participated willingly in this.

20

In fact,

21

himself planned several robberies.

22

terrible.

23

two,

24

and executed the one over by his grandparents'

25

there at the Big Lots.

he said from that stand several times that he

So several robberies,

His memory was

I don't know whether it's

three or a whole bunch of them.

He clearly planned

house over

21

you heard the

You heard the testimony of

1

2

testimony of the retired deputy sheriff -- I forgot his

3

name

4

Mr.

5

Restaurant,

6

almost said Ellenson.

But Ellison had gone over to,

7

guess,

It's now a Speedway,

8

be a Hess,

9

Parkway.

from York County,

who came and confronted

Robertson when he was sitting behind Andrea's

or whatever,

rob the store.

or something like that,

I

but it used to

off George Washington

Ellison came back on his own,

10

I

and Ellison had gone over to

without any

coaching or coaxing or prompting from Mr.

12

had the presence of mind and the guilty and devious intent

13

to hide,

14

gloves,

the mask under some sort of trash can,

15

it was,

a waste dumpster and come back and lied to the

16

officer.

17

according to him,

the gun,

would have never broken the law,

19

flies in the face of what Mr.

20

Now, Mr.

21

THE COURT:

22

the backpack,

So the notion that but for Mr.

18

Robertson.

He

11

the

or whatever

Robertson Ellison

I just

I think it

Ellison said.

Ellison also

It also ignores his Criminal History

Category V.

23

MR.

GROENE:

24

THE COURT:

25

MR.

GROENE:

It does.

Right.

And I think some of the testimony

22

1

that was somewhat presented was that he had issues.

2

know,

3

well.

he had issues.

You

He had threatened his family as

So bottom line is he did cooperate.

4

I do think

I do think

I’m not sure how the

5

guidelines — whether the guidelines ever addressed

6

manipulation.

7

But I was present when Judge Allen sentenced Ms.

8

the statement that Judge Allen made to Ms.

I guess organizing perhaps is manipulating.

Jones and

Jones.

I would submit to the Court that under the law,

9

10

principle,

aiding and abetting,

11

getaway driver is just as guilty as the guy who goes in

12

the bank.

13

offense,

14

the bank and shoots the clerk.

The getaway driver,

conspiracy,

you know,

the

although guilty of the

might not be as guilty as the guy who goes into

Nobody,

15

thank God,

But it’s

got shot here.

16

undeniable that it was because

17

don't know.

18

Because he’s young?

19

I don't know.

20

adrenaline rush of a gangster?

because he's dumb?

Because he’s impressionable?

I don't know.

I

I don’t know.

Because he’s gullible?

Or because he just has the excitement,

I don't know.

But it was Ellison who went into each one of

21

22

those stores,

23

real gun,

24

barrel,

25

But it was Mr.

and whether it was with a BB gun or with a

of course,

if you're on the other side of that

you don’t care.

You're scared out of your life.

Ellison who went out there and put that gun

23

1

in front of these people.

2

I understand he cooperated.

I understand he has

3

very little recollection about what happened.

4

says that he had remorse and contrition.

5

can’t get inside of his brain or his heart.

6

I saw,

Mr. Osyf

I don't know.

But from what

he was doing what he needed to do.

7

And as the Court knows from this

job and your

8

previous jobs,

9

testifies

they're playing the game.

Maybe they are

10

remorseful.

Maybe they are contrite,

but they’re doing

11

what they need to do.

12

do so that their sentence,

not everybody who pleads guilty and

And they're doing what they need to

perhaps,

can get reduced.

I'm not saying -- what I'm saying,

13

14

1s

15

and testifies is not necessarily contrite.

inartfully,

So,

16

I guess,

is that everybody who takes the stand

you know,

I guess I'm going to have to get a

17

calculator the way my last cases are going because the

18

numbers are so high and I have to divide it by 12.

19

the question is this.

Is a 60-

20

asking for 62 years.

I guess it could go up given the

21

Court's indication that the 922(g)

22

run separately.

23

The question is

24

THE COURT:

25

I

second.

But

the government is

count is going to be

That doesn't mean

no .

Hold on a

That doesn't mean it's going to go higher than

24

1

the government's number.

2

MR.

3

THE COURT:

GROENE:

No.

I understand.

I wanted to be

What I'm saying

4

honest with both of you,

5

what's going on so you could make an appropriate argument.

6

That doesn't mean the final number is higher.

7

MR.

8

And I will start with the final number.

9

GROENE:

in terms of the structure,

I understand,

question is what sentence

11

testify.

12

guidelines other than that issue.

as you know.

But the question is this.

to end up,

15

sentences reduced

16

not get a sentence reduction,

17

fairly kindly,

for whatever reason,

I would say,

he

he didn't

19

But what I really

charge was different too.

MR.

GROENE:

As the case is going

with people getting

but the Court treated him

respectfully.

I factored in his cooperation.

THE COURT:

22

Robertson,

I guess maybe Keaton will

I guess

18

21

The

He's not going to argue anything about the

14

20

Mr.

He is not

intends to appeal,

13

Judge.

and I

10

about

well,

first of all,

his

As I recall

His charge was for lying about what

he had done when he was a juvenile.

THE COURT:

23

Right,

because he had been

24

prosecuted as a juvenile for the robberies in the state

25

system.

r

L

25

MR.

1

2

GROENE:

years to serve,

And he got,

like,

six and a half

or something like that.

But his age is such a

3

THE COURT:

4

MR.

5

THE COURT:

6

And I watched Ms.

7

clear that this was motivated by love,

8

sadly,

she still feels for the defendant.

9

tell

that was a pretty tough witness for you,

10

Ms.

GROENE:

I understand.

To me,

it's an outlier.

Jones'

testimony.

It was

which I think

You could

Jones .

11

MR.

GROENE:

12

THE COURT:

They all were,

Right.

Judge.

But your motion for a

variance, to me,

14

making some good points there.

But I’m not sentencing

15

Ellison today,

In fact,

I'm not the judge who's

16

going to sentence him.

17

don't understand how this works down there.

18

judges

19

MR.

hinges on Ellison.

And I think you're

13

right?

GROENE:

It's going to be Judge Davis.

I

You got three

And you're not the one who's going

You're not the one who's

20

to cut his sentence either.

21

going to be,

22

determine what the government's recommended reduction is.

you know,

23

THE COURT:

24

MR.

25

GROENE:

reading the government's Rule 35 to

Right.

So what I'm

lastly,

I don't want

to say any more because I can say it many times and I say

26

The question is this:

What is the

1

it wrong every time.

2

sentence that is sufficient but not greater than necessary

3

given everything that you know about this case?

4

THE COURT:

Right.

5

MR.

And I submit that 62 years is too

GROENE:

I would say 42 years is too high,

6

high.

I think

7

we're stuck with 42 years.

8

possible.

So as close to 42 years as

Thank you.

9

THE COURT:

Okay.

10

All right,

Mr.

11

Robertson.

Do you want to come

up to the lectern?

Mr.

12

Robertson,

this is your opportunity to say

13

anything you want before I impose sentence.

14

to say something,

15

down .

16

option.

17

want to me before I impose sentence.

18

THE DEFENDANT:

19

If you intend

I'm going to ask you to take your mask

If you don't want to say anything,

that's your

But this is your opportunity to say anything you

I have nothing to say,

Your Honor.

20

THE COURT:

All right.

21

A11 right.

You can put your mask back up.

22

All right.

Well,

23

but

as we

Thank you.

no,

you've got to say

there.

24

THE DEFENDANT:

25

THE COURT:

Sorry about that.

So anyhow -- so we are here now,

as

27

for the sentencing.

I've sustained the defense

1

I said,

2

objection.

So we're working with a Criminal History

3

Category VI,

an offense level of 30.

4

count s,

5

seven-year consecutive sentence on each of the 924 (c)s.

6

And as I said,

7

Count Twenty-three,

8

consecutive.

9

3553(a)

For the robbery

Of course,

it's 168 to 210 months.

it's a

I believe it's appropriate that the

which is a 922(g)

count,

that that be

Whatever the amount is is driven by the

factors,

but just because it's a separate criminal

10

episode as demonstrated by the fact that he had separate

11

trials .

12

said,

13

necessary under the factors set forth in Section 3553(a).

So then I'm obligated to impose,

as Mr.

Groene

a sentence that is sufficient but not greater than

We begin with number

14

(1),

the nature and

15

circumstances of the offense and the history and

16

characteristics of the defendant.

17

robberies that were involved,

18

which,

19

have happened.

20

repeated.

21

to me,

thank God,

We have 13 different

or attempted robberies,

nobody was shot.

of

It certainly could

But this was serious violence.

It was

It was part of repeated criminal episodes.

And

the defendant was the mastermind.

I'm denying the request for a variance even

22

23

though,

as to Mr. Ellison I think was a willing

24

participant in this.

25

the reasons that we spoke of.

I think he's the only comparable for

A sentence of 196 months.

28

1

That's not what I would have given,

2

that sentenced him.

But it was clear that this defendant was the

3

4

mastermind of this,

5

opportunities,

6

this .

7

contrary to the defendant.

and he has rejected,

at all

any efforts to accept responsibility in

And as noted,

Mr.

Ellison cooperated,

quite in

You look at the history and characteristics of

8

9

but I'm not the person

He's 36 years of age.

the defendant.

His record is

For a person of his age to have the

10

simply atrocious.

11

record that he has is -- speaks to nothing but recidivism.

12

At age 18,

13

carrying a concealed weapon.

14

larceny.

15

think two violations on that sentence,

16

that supervision does not work for him,

17

does .

he had brandishing a firearm.

2008,

At age 21,

a burglary,

He had supervision revoked.

grand

which,

again,

2010,

receiving

felon in possession,

for which

2008,

19

stolen property,

20

Judge Davis gave him 30 months.

21

from custody,

22

shows is a lifetime of criminal activity and sadly,

23

number of those with firearms,

24

that he is to the community.

25

shows

only incarceration

18

trespassing and larceny.

and 2017,

I

He had another

He was never released

as I understand it,

for that.

But what it

a

which speak to the danger

And he did this despite having what appears to

29

He comes from

as he notes,

he was

1

be a good family.

2

born to loving and hardworking parents.

3

married for 43 years.

4

excuse whatsoever for his lifetime of criminality here.

5

I've considered all of his individual factors,

And there's just no excuse,

6

including his physical ailments.

7

inconsequential to

8

he represents to the community.

9

Mr.

Groene says,

Parents have been

I find them to be

when weighed against the danger that

His heavy marijuana use,

But,

has an impact here.

of course,

10

that's conduct that he chose.

11

that he receive the RDAP treatment when he's in BOP

12

custody,

I'd be glad to recommend

if that's what you want.

13

Is that right, Mr.

Groene?

14

MR.

sir.

15

THE COURT:

16

no

GROENE:

Yes,

All right.

But the key fact here is

his criminal record and the seriousness of the offense.

17

If we go,

then,

to factor number

(2),

the need

18

for the sentence imposed to reflect the seriousness of the

19

offense,

20

just punishment for the offense,

21

deterrence to criminal conduct,

22

public from future crimes of the defendant.

23

(C)

24

that he warrants the sentence that I think the government

25

has requested.

to promote respect for the law,

(B) ,

and

and to provide

to afford adequate

(C),

to protect the

It is that

factor which I think drives the sentence here such

30

(D),

1

to provide the defendant with needed

2

educational or vocational training,

medical care or other

3

correctional treatment in the most effective manner.

4

Again,

5

about it because his lifetime of criminal activity shows

6

that what he needs is jail.

we'll give him the RDAP program,

(3)

7

and

(4),

but I think that's

types of sentences available.

8

has to be imprisonment because of the 924(c)

9

not going to belabor that.

10

(5),

11

( 6),

I 'm

None are

any pertinent policy statements.

None that I can really think of.

really addressed here.

12

counts.

It

though,

is

I think it's a key point,

13

though,

14

disparities amongst defendants with similar records who

15

have been found guilty of similar conduct.

16

already addressed that,

17

is clear, Mr.

18

defendant,

19

again, manipulated by the defendant,

20

vehicle,

21

the need to avoid unwarranted sentencing

I believe.

Again,

I've

But just so the record

Keaton was a juvenile recruited by the

again,

manipulated by him.

I suspect,

Aquilla Jones,

using love as the

for that.

But Ellison is the one because he was a willing

There's no question about that.

He was a

22

participant.

23

Criminal History Category V.

24

History Category VI.

But I do believe that the defendant

25

was the mastermind.

The evidence showed that,

This defendant is Criminal

number one.

31

1

Number two,

Mr.

Ellison did accept responsibility,

2

cooperate,

and I think that's a significant difference,

3

well as the criminal conduct.

4

variance,

as I said,

as

So I'm denying the

for that reason.

So pursuant to Section 3553(a)

5

did

and having

6

considered the guidelines advisory,

it is the judgment of

7

the Court that the defendant,

8

hereby committed to the custody of the United States

9

Bureau of Prisons to be imprisoned for a term of

Christopher Robertson,

10

744 months,

which is 62 years,

as the government has

11

requested.

The term,

is different than as

12

requested by the government.

however,

is

The term consists of 210 months on each of

13

14

Counts One,

Two,

15

Nine,

Eleven,

16

attempted robbery counts.

17

concurrently.

18

Counts Fourteen,

19

Twenty-two are all to be served consecutive to each other

20

and to all other counts.

21

Ten,

Three,

Four,

Twelve,

Five,

Six,

Seven,

Thirteen and Sixteen,

the

Those are all to be served

A term of 84 months on each of

Fifteen,

And then lastly,

Eighteen,

Twenty,

Twenty-one and

a term of 30 months will be

22

served consecutively as to Count Twenty-three.

23

be consecutive to all other counts.

24

under my math,

25

Eight,

That will

That should total up,

to 744 months.

The defendant is remanded to the custody of the

32

I

1

United States Marshal to begin service of his sentence.

2

will recommend to the Bureau of Prisons that the defendant

3

receive the RDAP drug treatment if he is eligible for that

4

while in custody.

Upon release from imprisonment,

5

the defendant

6

shall be placed on supervised release for a term of five

7

years.

8

Counts One,

9

Nine,

This term consists of three years on each of

Ten,

Two,

Three,

Eleven,

10

Twenty-three,

11

Counts Fourteen,

12

Twenty-two,

Four,

Twelve,

Five,

Thirteen,

Six,

Seven,

Eight,

Sixteen and

and a term of five years on each of

Fifteen,

Eighteen,

Twenty,

Twenty-one and

all to run concurrently.

Within 72 hours of release from custody of the

13

the defendant shall,report in person to

14

Bureau of Prisons,

15

the probation office in the district in which he is

16

released.

17

commit another federal,

18

not unlawfully possess a controlled substance and shall

19

not possess a firearm or destructive device.

While on supervision,

the defendant shall not

state or local crime.

He shall

20

The defendant shaly comply with the standard

21

conditions that have been adopted by this Court as set

22

forth in the presentence report,

23

objection,

24

judgment.

25

to which there's been no

and they are hereby incorporated into this

The defendant shall also comply with the

33

He shall apply all monies

1

following special conditions:

2

received from income tax refunds,

3

inheritances,

4

or unexpected financial gains to the outstanding court

5

ordered financial obligation,

6

determined by the Court,

7

probation officer.

judgments,

lottery winnings,

settlements and any anticipated

or in a lesser amount to be

by recommendation of the

8

The defendant shall not incur any new credit

9

charges or open additional lines of credit without the

10

approval of the probation officer.

The defendant shall provide the probation

11

12

officer with access to any requested financial

13

information.

The defendant shall participate in a program

14

15

approved by the United States Probation Office for

16

substance abuse,

17

treatment and testing to determine whether the defendant

18

has reverted to the use of drugs or alcohol,

19

be paid by the defendant,

20

officer.

21

which program may include residential

with costs to

all as directed by the probation

I have considered the amount of loss sustained

22

by the victims as a result of this offense,

23

defendant's net worth,

24

lifestyle and financial needs as reflected in the

25

presentence report,

liquid assets,

the

the defendant's

his earning potential and others

34

•A'

1

relying upon him for support.

2

paying.a fine.

3

Now,

4

Therefore,

6

THE COURT:

OSYF:

7

amount of $10,540.20?

8

MR.

11

12

GROENE:

No,

I don't believe so,

We are not,

THE COURT:

All right.

We would just

Well,

we'll deal with

that in a second.

I'm going to order that restitution be made in

14

Government,

you are to tender a proposed consent

order of forfeiture to us,

which I'll follow.

The defendant is jointly and severally liable

17

for the restitution,

18

Aquilla Jones,

19

Michael Ellison,

20

Judge.

like to address how that gets paid later on.

the total amount of $10,540.20.

16

Your Honor.

Are you challenging-, the restitution

13

15

do we have a

consent order of restitution?

MR.

10

no fine will be imposed.

there is a restitution

5

9

I find he's not capable of

Also,

along with his co-conspirators.

who was prosecuted in case 4:18 CR 27,

and

prosecuted in 4 CR 40.

I'm obligated to impose a $100 special

for a total of $2100.

21

assessment on each of the counts,

22

That is due and payable immediately.

23

immediately upon release,

24

that amount,

25

$100 per month,

If not paid

he shall make payments as to

as well as the restitution,

of not less than

or 25 percent of his net monthly income,

v

35

1

whichever is greater,

2

days after he begins his term of supervision.

3

Did you want to say something else,

4

MR.

5

GROENE:

until paid in full, beginning 60

I do,

Judge,

Mr.

Groene?

with the Court's

indulgence .

6

Judge,

7

THE COURT:

8

MR.

9

THE COURT:

MR.

10

Mr.

GROENE:

GROENE:

Ellison

Do you want to take your mask off?

Thank you.

Mr.

Robertson?

Mr.

Robertson has requested if the

11

Court would order that the amount of -- the joint and

12

several amount of restitution that is his obligation,

13

he could actually pay that'from -- if he works at the

14

UniCourt at the rate of $10 a month.

15

THE COURT:

16

MR.

GROENE:

As opposed to?

As opposed to the Bureau of

17

Prisons i

18

account and pulling out money.

19

works.

financial responsibility unit going into his

THE COURT:

20

Okay.

I guess that's how it

That request is denied.

21

the money he makes should go to the victims that he

22

robbed.

23

24

25

that

So

all right.

Anything else from the

government?

MR.

OSYF:

No,

Your Honor.

All

36

1

THE COURT:

2

MR.

Anything else,

GROENE:

Oh,

Mr.

Groene?

Judge, we would ask that the

3

Court consider recommending a location close to

4

North Carolina.

5

going to do that,

6

somewhere close to Butner, North Carolina.

7

8

We know that the Bureau of Prisons is

but given his medical condition,

THE COURT:

request.

Okay.

MR.

9

I'll grant that

That's fine.

Anything else?

GROENE:

No,

he denied it.

10

That's it,

Judge.

11

THE COURT:

All right.

Mr.

Robertson,

12

14 days from today's date to appeal the sentence.

13

want to appeal,

14

it for you.

it must be in writing.

THE DEFENDANT:

16

THE COURT:

Yes,

MR.

Robertson

Groene will do

sir.

All right.

service of your sentence.

18

I f you

Do you understand that?

15

17

Mr.

you have

GROENE:

Oh,

I wish you well with the

Good luck to you.

Judge.

I'm sorry.

I guess I got it wrong

that if the

19

Mr.

20

Court can actually recommend that he be considered for

21

working at UniCourt in the Federal Bureau of Prisons.

23

Bureau of Prisons.

24

the other.

25

I'm going to defer that to the

THE COURT:

22

MR.

I'm not going to weigh in one way or

GROENE:

Yes,

sir.