Petition for Writ of Certiorari — Rufus E. Dennis, Petitioner v. United States

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-1012

United States of America

Plaintiff - Appellee

V.

Rufus E. Dennis

Defendant - Appellant

Appeal from U.S. District Court for the District of Nebraska - Omaha

(8:20-cr-00072-RFR-1)

JUDGMENT

Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

This appeal from the United States District Court was submitted on the record of the

district court and briefs of the parties.

After consideration, it is hereby ordered and adjudged that the judgment of the district

court in this cause is affirmed in accordance with the opinion of this Court.

March 24, 2025

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Susan E. Bindler

Apnvellate Case: 24-1012 Paqe: 1 Date Filed: 03/24/2025 Entry 1D: 5498906

Gnited States Court of Appeals

For the Ciqhth Circuit

No. 24-1012

United States of America

Plaintiff - Appellee

V.

Rufus E. Dennis

Defendant - Appellant

Appeal from United States District Court

for the District of Nebraska - Omaha

Submitted: October 22, 2024

Filed: March 24, 2025

Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

KELLY, Circuit Judge.

A jury convicted Rufus E. Dennis of four counts: attempted Hobbs Act

robbery, 18 U.S.C. § 1951(a); possession of a firearm in furtherance of a crime of

violence, 18 U.S.C. § 924(c)(1)(A); possession of a firearm after having been

convicted of a felony, 18 U.S.C. § 922(g)(1); and possession of a stolen firearm,

18 U.S.C. §§ 922q) and 924(a)(2). The district court sentenced him to 270 months’

imprisonment. Dennis appealed, and we affirmed his robbery conviction and two of

his firearm convictions, but vacated his conviction for possession of a firearm in

Appellate Case: 24-1012 Page: 1 Date Filed: 03/24/2025 Entry ID: 5498903

furtherance of a crime of violence in light of the Supreme Court’s decision in United

States v. Taylor, 596 U.S. 845 (2022).' See United States v. Dennis, 81 F.4th 764,

767 (8th Cir. 2023). We then remanded the case to the district court for resentencing.

See id.

On remand, the district court” imposed a 240-month sentence. Dennis now

appeals, alleging the district court erred procedurally and imposed a substantively

unreasonable sentence. We affirm.

In December 2019, Dennis planned to rob a drug dealer at his home, where a

single mother and her four-year-old twins also lived. Dennis enlisted the help of a

friend, who happened to also be a confidential informant (CI). The CI reported the

plan to law enforcement and agreed to record conversations with Dennis. Dennis

told the CI that he wanted a handgun for the robbery. In late-January 2020, before

any robbery took place, officers arrested Dennis and searched his home, where they

located a rifle-style 9mm carbine.

At resentencing, the district court applied a sentencing enhancement under

USSG § 2B3.1(b)(2)(C), which provides for a five-level increase in offense level for

a robbery count “if a firearm was brandished or possessed.” See also id. § 2X1.1(a)

(establishing the base offense level for an attempt as “[t]he base offense level from

the guideline for the substantive offense, plus any adjustments from such guideline

for any intended offense conduct that can be established with reasonable certainty”).

With the enhancement, Dennis’s advisory Guidelines range was 121 to 151 months’

imprisonment. The district court denied Dennis’s motion for a below-range sentence,

In Taylor, the Supreme Court held that attempted Hobbs Act robbery is not a

crime of violence for purposes of § 924(c). 596 U.S. at 848, 852.

The Honorable Robert F. Rossiter, Jr., Chief Judge, United States District

Court for the District of Nebraska.

-2-

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granted in part the government’s motion for an upward variance, and imposed a 240-

month sentence on the attempted robbery count, to run concurrently with 120-month

sentences on each firearm count.

Dennis appeals his sentence.

Il.

First, Dennis asserts the district court committed procedural error when it

applied a five-level enhancement under USSG § 2B3.1(b)(2)(C).? See United States

v. Ross, 29 F.4th 1003, 1007 (8th Cir. 2022) (explaining that procedural error

includes failing to properly calculate the Guidelines range). “In reviewing the

sentence for procedural errors, we review a district court’s interpretation and

application of the guidelines de novo and its factual findings for clear error.” United

States v. Godfrey, 863 F.3d 1088, 1095 (8th Cir. 2017) (quoting United States v.

Fischer, 551 F.3d 751, 754 (8th Cir. 2008)).

Dennis concedes that he and the CI discussed the possibility of getting a

handgun to use in the robbery, but he stresses that he never in fact obtained one.

And, he points out, the firearm seized from his house was never part of the plan. The

record supports these assertions, but Dennis’s argument overlooks the fact that he

was convicted of attempted Hobbs Act robbery. As a result, the issue is whether the

district court properly found that the government established “with reasonable

certainty” that Dennis “intended” that a firearm would be “brandished or possessed.”

See USSG § 2X1.1(a); see also United States v. Simmons, 260 F.3d 937, 938 (8th

3Dennis also argues the district court erred in relying on USSG § 2B3.1 to

determine the base offense level for his attempted Hobbs Act robbery conviction.

But we have explained that “[i]n dealing with attempted offenses, the district court

must begin with the guideline for the substantive offense.” United States _v.

Simmons, 260 F.3d 937, 938 (8th Cir. 2001). The substantive offense here is

robbery, see USSG § 2X1.1, comment. (n.2) (explaining “[s]ubstantive offense” is

“the offense that the defendant was convicted of... attempting... to commit’), and

robbery falls under § 2B3.1.

-3-

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Cir. 2001). Here, Dennis’s conduct demonstrated “with reasonable certainty” that he

intended to brandish or possess a firearm during the planned robbery. Over the span

of roughly a month, Dennis told the CI multiple times that he wanted a handgun for

the robbery. He also made concrete plans and took steps to acquire one: he discussed

the matter in detail with the CI; he texted a photo of his firearm to the CI with the

hope of trading it for a handgun; and he said he was willing to pay $200-—$300 for a

handgun.

We have recognized “that in certain circumstances the distance between

thought and deed could be sufficiently broad to preclude any enhancement for

intended conduct under § 2X1.1.” Simmons, 260 F.3d at 939. But that is not the case

here, where Dennis’s repeated words and actions, collectively, are sufficient to

establish “with reasonable certainty” that he intended the offense conduct to include

brandishing or possessing a firearm. We discern no error in the district court’s

decision to apply the § 2B3.1(b)(2)(C) enhancement.*

Next, Dennis argues that the district court imposed a substantively

unreasonable sentence, a challenge we review “under a highly deferential abuse-ofdiscretion standard.” United States v. Haskins, 101 F.4th 997, 999 (8th Cir. 2024)

(quoting United States v. Jones, 71 F.4th 1083, 1086 (8th Cir. 2023)). “A district

court abuses its sentencing ‘discretion when it (1) fails to consider a relevant factor

that should have received significant weight; (2) gives significant weight to an

improper or irrelevant factor; or (3) considers only the appropriate factors but in

‘We have applied different standards of review when reviewing a district

court’s determination that the government established intended offense conduct with

reasonable certainty under USSG § 2X1.1(a). Compare United States v. McGarr,

330 F.3d 1048, 1050 (8th Cir. 2003) (treating the “reasonable certainty”

determination under USSG § 2X1.1(a) “as a matter of law to be reviewed de novo”

when the underlying facts were “essentially undisputed”), with United States v.

Jones, 791 F.3d 872, 874-75 (8th Cir. 2015) (reviewing same determination for clear

error). Because we reach the same result regardless of the standard of review, we

need not address any possible conflict in our case law.

4.

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weighing those factors commits a clear error of judgment.’” United States v. Ahmed,

103 F.4th 1318, 1324 (8th Cir. 2024) (quoting United States v. Petersen, 22 F.4th

805, 807 (8th Cir. 2022)). “[A] district court is afforded ‘wide latitude to weigh the

§ 3553(a) factors in each case and assign some factors greater weight than others in

determining an appropriate sentence.’” United States v. Starr, 111 F.4th 877, 880

(8th Cir. 2024) (quoting United States v. Barber, 4 F.4th 689, 692 (8th Cir. 2021)).

Dennis asserts that the district court placed too much weight on the nature and

circumstances of the attempted robbery offense when imposing an above-range

sentence. He further contends that a substantial variance based on factors already

taken into account in the Guidelines range undermines the goal of sentencing

uniformity. It is true that “courts must use caution when supporting a substantial

upward variance with factors already reflected in the Guidelines.” United States v.

Parker, 112 F.4th 621, 623 (8th Cir. 2024) (per curiam) (citations omitted). But here,

while Dennis’s Guidelines range accounted for some of the circumstances of the

offense, such as his intent to brandish or possess a gun, the range did not account for

all the factors the district court found relevant. For example, Dennis planned to tase

whoever opened the door of the targeted home, and the district court expressed

concern that Dennis was “willing to do” that to “vulnerable people”—a mother and

her children. And based on the testimony it heard at trial, the district court believed

that Dennis’s actions would likely have resulted in “tragedy” had law enforcement

not thwarted his plans.

Dennis also contends the district court ignored mitigating evidence, including

his difficult upbringing, but both Dennis and his counsel argued these points at the

resentencing hearing. We presume the district court considered them. See United

States v. Beyers, 854 F.3d 1041, 1043 (8th Cir. 2017) (“‘[W]here the district court

heard argument .. . about specific . . . factors, we may presume that the court

considered those factors’ even if the court did not address them expressly.”

(alteration in original) (quoting United States v. Keating, 579 F.3d 891, 893 (8th Cir.

2009))). Understandably, Dennis hoped this evidence would be given more weight,

but “disagreement with how the district court weighed the relevant sentencing

_5-

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factors does not justify reversal.” United States v. Haskins, 101 F.4th 997, 1000 (8th

Cir. 2024) (quoting United States v. Jones, 71 F.4th 1083, 1087 (8th Cir. 2023)). We

see no “clear error of judgment,” Ahmed, 103 F.4th at 1324 (quotation omitted), and

after careful review, we are satisfied the district court did not abuse its discretion.

We affirm.

6.

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-1012

United States of America

Appellee

v.

Rufus E. Dennis

Appellant

Appeal from U.S. District Court for the District of Nebraska - Omaha

(8:20-cr-00072-RFR-1)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

May 16, 2025

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Susan E. Bindler

Appellate Case: 24-1012 Page: 1 Date Filed: 05/16/2025 Entry 1D: 5517382

APPENDIX C

8:20-cr-00072-RFR-MDN. Doc #164 Filed: 12/11/23 Page 1of8-PageID#1211 .

AO 245B(Rev. 09/19) Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

for the

District of Nebraska

UNITED STATES OF AMERICA AMENDED JUDGMENT IN A CRIMINAL CASE

V.

Case Number: 8:20CR72-001

USM Number: 3 1560-047

RUFUS E. DENNIS Joseph E. Kuehl

Defendant’s Attorney

Date of Original Judgment: 04/05/2022

(Or Date of Last Amended Judgment)

THE DEFENDANT:

C] pleaded guilty to count(s)

L] pleaded nolo contendere to count(s)_ which was accepted by the court.

was found guilty on counts I, II, V and VI of the Indictment. after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section& Nature of Offense Offense Ended Count

18:1951(a) & 2 ATTEMPTED INTERFERENCE WITH INTERSTATE January 29, 2020 I

COMMERCE BY WAY OF ROBBERY

18:922(g)(1) POSSESSION OF A FIREARM BY A PROHIBITED January 29, 2020 Vv

PERSON

18:922(j) & 924(a)(2) POSSESSION OF A STOLEN WEAPON , January 29,2020 — VI

The defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

L] The defendant has been found not guilty on count(s)

Counts II and IV were dismissed on 2/25/2020 (see Order at filing 22) per the government’s motion.

The defendant’s conviction Count III was vacated by 8" Circuit Court of Appeals (see filing 138 and 139).

IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of

name, residence, or mailing address until all fines, restitution, costs and special assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant shall notify the court and United States attorney of any material change in the defendant’s

economic circumstances.

December 8, 2023

Date of Imposition of Sentence:

s/ Robert F. Rossiter, Jr.

Chief United States District Judge

December 11, 2023

Date

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AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 2 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of

two hundred forty (240) months on Count [ and one hundred twenty (120) months on Count V and Count VI to be

served concurrent to each other and the sentence imposed in Count I (for a total of 240 months).

|The Court makes the following recommendations to the Bureau of Prisons:

1.

2.

3.

That the defendant be allowed to participate in the Residential Drug Treatment Program or any similar drug

treatment program available.

That the defendant be incarcerated in a federal facility as close as possible to FCI Pekin or Colorado.

Defendant should be given credit for time served. —

|The defendant is remanded to the custody of the United States Marshal.

The defendant shall surrender to the United States Marshal for this district:

Cat

CZ as notified by the United States Marshal.

(|The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

CL] before 2 p.m. on

L] as notified by the United States Marshal.

C) as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows: _

at

Defendant was delivered on to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

BY:

DEPUTY UNITED STATES MARSHAL

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AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 3 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of three (3) years on Counts I,

V and VI to run concurrently.

—

7.

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of

release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

L] The above drug testing condition is suspended, based on the court's determination that you pose a low risk of

future substance abuse. (check if applicable)

O) You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a

sentence of restitution. (check if applicable)

x] You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

L]You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901,

et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the

location where you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

_]You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions

on the attached page. .

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These

conditions are imposed because they establish the basic expectations for your behavior while on supervision and identify

the minimum tools needed by probation officers to keep informed, report, to the court about, and bring about

improvements in your conduct and condition.

1.

_ You must report to the probation office in the federal judicial district where you are authorized to reside within 72

hours of your release from imprisonment, unless the probation officer instructs you to report to a different

probation office or within a different time frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation

officer about how and when you must report to the probation officer, and you must report to the probation officer

as instructed. |

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting

permission from the court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything

about your living arrangements (such as the people you live with), you must notify the probation officer at least

10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated

circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected

change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the

probation officer to take any items prohibited by the conditions of your supervision that he or she observes in

plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer

excuses you from doing so. If you do not have full-time employment you must try to find full-time employment,

unless the probation officer excuses you from doing so. If you plan to change where you work or anything about

your work (such as your position or your job responsibilities), you must notify the probation officer at least 10

days before the change. If notifying the probation officer at least 10 days in advance is not possible due to

8:20-cr-00072-RFR-MDN Doc#164 Filed: 12/11/23 Page 4 of 8 - Page ID #1214

AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 4 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

10.

11.

12.

13.

unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a

change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know

someone has been convicted of a felony, you must not knowingly communicate or interact with that person

without first getting the permission of the probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72

hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon

(1.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to

another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or

informant without first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the

probation officer may require you to notify the person about the risk and you must comply with that instruction.

The probation officer may contact the person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only —

A USS. probation officer has instructed me on the conditions specified by the court and has provided me with a written

copy of this judgment containing these conditions. For further information regarding these conditions, see Overview of

Probation and Supervised Release Conditions, available at: www.uscourts.gov.

Defendant’s Signature Date

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AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 5 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

ZZ.

SPECIAL CONDITIONS OF SUPERVISION

You must not purchase or possess, use, distribute, or administer any alcohol, just the same as any other narcotic or

controlled substance.

You must submit your person, residence, office, or vehicle to a search conducted by a United States Probation

Officer at any time; failure to submit to a search may be grounds for revocation; you must warn any other

' residents that the premises may be subject to searches pursuant to this condition.

You must attend, pay for and successfully complete any diagnostic evaluations, treatment or counseling programs,

or approved support groups (e.g., AA/NA) for alcohol and/or controlled substance abuse, as directed by the

probation officer.

You must participate in a victim awareness program as directed by the probation officer. Based on your ability to

pay, you must pay for the costs of the program in an amount determined by the probation officer.

You must attend, successfully complete, and pay for any mental health diagnostic evaluations and treatment or

counseling programs as directed by the probation officer.

If you are unable to secure lawful employment, you may be required to perform up to 20 hours of community

service per week until employed. You may also participate in training, counseling, daily job search, or other

employment-related activities, as directed by the probation officer.

You must provide the probation officer with access to any requested financial information.

You must attend, successfully complete, and pay for an approved cognitive-behavioral based program, as directed

by the probation officer.

’ ‘You must have no contact with your victim(s), including correspondence, telephone, or communication through

third parties, except under circumstances approved in advance and in writing by the probation officer. You must

not enter onto the premises, travel past, or loiter near the victim’s residence, school, or place of employment, or

other places frequented by the victim.

You must report to the Supervision Unit of the U.S. Probation Office for the District of Nebraska between the

hours of 8:00 a.m. and 4:30 p.m., 111 South 18th Plaza, Suite C79, Omaha, Nebraska, (402) 661-7555, within

seventy-two (72) hours of being placed on probation or release from confinement and, thereafter, as directed by

the probation officer.

8:20-cr-00072-RFR-MDN Doc#164 Filed: 12/11/23 Page 6 of 8 - Page ID #1216

AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 6 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties in accordance with the schedule of payments set

forth in this judgment.

Assessment Restitution Fine AVAA Assessment* JVTA Assessment**

TOTALS — $300.00

CL] The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO245C) will be

entered after such determination.

CL] The defendant must make restitution (including community restitution) to the following payees in the amount listed

below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless

specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. §

3664(1), all nonfederal victims must be paid before the United States is paid.

Name of Payee Total Loss*** Restitution Ordered Priority or Percentage

Totals

L] Restitution amount ordered pursuant to plea agreement $

C The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in

full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options

on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

C] The court determined that the defendant does not have the ability to pay interest and it is ordered that:

CL] the interest requirement is waived for the LJ fine LH restitution

CL] the interest requirement for the LJ fine L restitution is modified as follows:

*Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299

**Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23, 1996.

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AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 7 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A Lump sum payment of $300.00 due immediately, balance due

im notlaterthan _—i,or

XxX in accordance with Cle, OD, O £E,or F below; or

BLU Payment to begin immediately (may be combined with LI C, LJ D, or 0) F below); or

C UO Paymentinequal (e.g., weekly, monthly, quarterly) installments of $ === over aperiodof ——_ (e.g, months or

years),tocommence __—(e.g., 30 or 60 days) after the date of this judgment; or

-D OI Paymentinequal _(e.g., weekly, monthly, quarterly) installments of $ = —s over aperiod of ——_(e.g., months or

years),tocommence | (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or

E (J Payment during the term of supervised release will commence within __ (e.g, 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F Special instructions regarding the payment of criminal monetary penalties:

The criminal monetary penalty is due in full on the date of the judgment. The defendant is obligated to pay said sum

immediately if he or she has the capacity to do so. The United States may institute civil collection proceedings at any time to

satisfy all or any portion of the criminal monetary penalty.

Without limiting the foregoing, and following release from prison, the defendant shall make payments to satisfy the criminal

monetary penalty in the following manner: (a) monthly installments of $100 or 5% of the defendant’s gross income,

whichever is greater; (b) the first payment shall commence 30 days following the defendant’s discharge from incarceration,

and continue until the criminal monetary penalty is paid in full; and (c) the defendant shall be responsible for providing proof

of payment to the probation officer as directed. ,

All financial penalty payments are to be made to the Clerk of the U. S. District Court, 111 S. 18th Plaza, Suite 1152, Omaha,

NE 68102-1322Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal

monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except those payments made through

the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

| Joint and Several

Case Number Total Amount Joint and Several Corresponding Payee,

Defendant and Co-Defendant Names Amount if appropriate

(including defendant number)

O The defendant shall pay the cost of prosecution.

O The defendant shall pay the following court cost(s):

CO The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA

assessment, (5) principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including

cost of prosecution and court costs.

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AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 8 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

REASON FOR AMENDMENT

REASON FOR AMENDMENT:

Correction of Sentence on Remand (18 U.S.C. [ Modification of Supervision Conditions (18 U.S.C. §§ 3563(c) or

3742(f)(1) and (2)) 3583(e))

CL) Reduction of Sentence for Changed Circumstances (Fed. [ Modification of Imposed Term of Imprisonment for Extraordinary

R. Crim. P. 35(b)) and Compelling Reasons (18 U.S.C. § 3582(c)(1))

CL] Correction of Sentence by Sentencing Court (Fed. R. ( Modification of Imposed Term of Imprisonment for Retroactive

Crim. P. 35(a)) Amendment(s) to the Sentencing Guidelines (18 U.S.C. §

3582(c)(2))

L] Correction of Sentence for Clerical Mistake (Fed. R. O Direct Motion to District Court Pursuant

Crim. P. 36) ‘(128 U.S.C. § 2255 or F118 USS.C. § 3559(c)(7)

L] Modification of Restitution Order (18 U.S.C. § 3664)

CLERK'S OFFICE USE ONLY:

ECF DOCUMENT

I hereby attest and certify this is a printed copy of a document which was electronically filed with the United States

District Court for the District of Nebraska.

Date Filed:

DENISE M. LUCKS, CLERK

By Deputy Clerk

APPENDIX D

Gnited States Court of Appeals

For the Eighth Circuit

No. 22-1759

United States of America

Plaintiff - Appellee

V.

Rufus E. Dennis

Defendant - Appellant

Appeal from United States District Court

for the District of Nebraska - Omaha

Submitted: May 11, 2023

Filed: August 24, 2023

Before SHEPHERD, STRAS, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Rufus Dennis was convicted of attempted Hobbs Act robbery and three

firearm charges, including possession of a firearm in furtherance of a crime of

violence, 18 U.S.C. § 924(c). Dennis argues that there is insufficient evidence to

support his attempted Hobbs Act robbery conviction and that his § 924(c) conviction

should be vacated in light of United States v. Taylor, 142 S. Ct. 2015 (2022). He

also challenges his sentence’s substantive reasonableness. We affirm his attempted

Annellate Case: 22-1759 Pade: 1 Nate Filed: 08/24/2023 FEntrv ID: 5309526

Hobbs Act robbery conviction but vacate his § 924(c) conviction under Taylor. We

also vacate Dennis’s sentence and remand for resentencing.

A confidential informant (CI) reported that Dennis was planning a robbery.

According to the CI, Dennis was targeting a stash house, where he believed a drug

dealer named “Rock” lived and dealt drugs. The FBI arranged an undercover

investigation.

To prepare for the robbery, the CI and Dennis made several trips to the house.

During their first trip, Dennis discussed a plan where he would wear a work vest and

claim that he was with the gas company. Dennis had the work vest with him, tried

it on, and practiced saying, “This is Infosource . . . [need to check your meter.” On

another trip, Dennis and the CI observed a woman, L.B., coming and going from the

house. Dennis said that he would tase L.B. if she was there when they broke in.

Dennis told the CI that he was concerned about being identified. . They

discussed robbing the house at night instead of during the day with a disguise.

Dennis also told the CI that he was “hot” because he was on parole for murder and

that he was not going back to prison; he planned to rob the stash house and leave the

state.

Dennis wanted a weapon for the robbery. He had a rifle but said that he would

only go through with the plan if he had something less visible. The CI introduced

Dennis to his “co-worker”—an undercover FBI agent—who was looking to sell a

handgun. The “co-worker” and Dennis planned to trade Dennis’s rifle for the

handgun. But before the trade, Dennis was arrested, and his rifle was recovered.

Police later learned that the house Dennis targeted was not a stash house and that

“Rock” did not live there. Rather, L.B., “Rock’s” ex-girlfriend, lived there with her

children.

es

Aovellate Case: 22-1759 Pade: 2 Date Filed: 08/24/2023 Entry ID: 5309536

Dennis was charged with attempted Hobbs Act robbery, 18 U.S.C. § 1951(a);

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1); possession of a stolen

firearm, 18 U.S.C. §§922(j) and 924(a)(2); and possession of a firearm in .

furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A). Before trial, Dennis

moved to dismiss his attempted robbery and § 924(c) charges. The district court

denied the motion but allowed Dennis to reassert it as a motion for acquittal. Dennis

did, and the district court again denied the motion. The jury then returned a guilty

verdict on all four charges. At sentencing, the district court varied up and sentenced

Dennis to 210 months in prison on the first three convictions and 60 months on the

§ 924(c) conviction, to be served consecutively.

Il.

We review de novo the denial of a motion for acquittal based on the

sufficiency of the evidence, United States v. Druger, 920 F.3d 567, 569 (8th Cir.

2019), and “view[] the evidence in the light most favorable to the guilty verdict,”

United States v. Thompson, 533 F.3d 964, 970 (8th Cir. 2008).

The Hobbs Act prohibits attempted robbery that affects commerce. 18 U.S.C.

§ 1951(a). To be convicted of an attempt crime, the defendant must take a

“substantial step” toward committing the crime. United States v. Joyce, 693 F.2d

838, 841 (8th Cir. 1982). Dennis argues that his actions did not affect commerce

and that he did not take a “substantial step” toward committing the robbery. We

address each argument in turn.

Under the Hobbs Act, “attempt[ing] to rob a drug dealer of drugs or drug

proceeds” satisfies the commerce requirement because the robber “attempts to affect

commerce over which the United States has jurisdiction.” Taylor v. United States,

579 U.S. 301, 303 (2016). Because the house Dennis targeted did not actually

belong to a drug dealer, Dennis argues that there would have been no impact on

interstate commerce if he completed the robbery. But “where the target of a robbery

is a drug dealer, proof that the defendant’s conduct in and of itself

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Aopvellate Case: 22-1759 Pade:3 Date Filed: 08/24/2023 Entry 1D: 5309536

affected ... commerce is not needed.” Jd. at 309. “[I]t is enough that [Dennis]

knowingly . . . attempted to steal drugs or drug proceeds” because “the market for

_ illegal drugs is ‘commerce over which the United States has jurisdiction.’” Jd.

(emphasis added). Because the evidence established that Dennis knowingly targeted

“Rock,” a drug dealer, the Government satisfied the commerce element.

~ We now tum to whether Dennis’s actions amount to attempt. Attempt

requires a “substantial step,” which must be more than “mere preparation” but may

be less than “the last act necessary” to commit the crime. United States v. Burks,

135 F.3d 582, 583 (8th Cir. 1998) (citation omitted). At the time he was arrested,

Dennis argues, it was still unclear whether the plan was to rob the house during the

day with a disguise or at night. He also argues that the date was not set in stone and

that he had not secured the handgun that was an essential part of the plan.

In United States v. Johnson, defendants surveilled a bank, went inside before

the robbery, and bought disguises to help them in the planned robbery. 962 F.2d

1308, 1310-11 (8th Cir. 1992). There, we held that the defendants crossed the

“shadowy line” from mere preparation to attempt. Jd..at 1312. Here, Dennis

repeatedly surveilled the home and practiced his disguise as a gas company

employee, even trying on a work vest and rehearsing what he would say to enter the

house. He recruited the CI to assist him and arranged to trade his rifle for a handgun.

Viewing the evidence in the light most favorable to the verdict, we find that the jury

could have reasonably found that Dennis crossed the “shadowy line” to attempt. See

United States v. St. John, 716 F.3d 491, 493 (8th Cir. 2013) (noting that we “will

affirm the jury’s verdict if, taking all facts in the light most favorable to the verdict,

a reasonable juror could have found the defendant guilty of the charged conduct

beyond a reasonable doubt” (cleaned up)).

Dennis also argues that, given the circumstances of his attempt, the district

court erred when it declined at sentencing to reduce his base offense level for

attempted Hobbs Act robbery by three levels. See U.S.S.G. § 2X1.1(a)-(b). Under

§ 2X1.1(b)(1), an attempt calls for a three-level reduction unless “the circumstances

_4-

Annellate Case: 22-1759 Pande: 4 Date Filed: 08/24/2023 Entrv ID: 5309536

demonstrate that the defendant was about to complete all [acts he believed necessary

for successful completion of the substantive offense] but for apprehension or

interruption by some similar event beyond [his] control.” At sentencing, the district .

court found that but for the police intervention, Dennis would have invaded L.B.’s

home. We review this finding for clear error and find none. See United States v.

Rill, 592 F.3d 863, 865 (8th Cir. 2010); see also United States v. Brown, 74 F.3d

891, 893 (8th Cir. 1996) (explaining that “whether a reduction under Section 2X1.1

is warranted is a fact-specific inquiry”).

Dennis argues that he was arrested before he got his weapon of choice and

before he decided when to invade L.B.’s home. He claims that without having .

committed these final acts, he is entitled to § 2X1.1(b)(1)’s three-level reduction.

But we “have upheld the denial of a reduction even though a defendant had not

reached the ‘last step’ before completion of the substantive offense.” Brown, 74

F.3d at 893; accord United States v. McGarr, 330 F.3d 1048, 1050-51 (8th Cir.

2003) (explaining that a § 2X1.1(b) ruling is one “based on probabilities,” which

“necessarily involves uncertainty”). The district court had to decide whether it was

“reasonably certain” that Dennis would have committed the robbery “but for some

factor beyond [his] control.” United States v. Jones, 791 F.3d 872, 874 (8th Cir.

2015) (cleaned up) (citation omitted).

Here, Dennis repeatedly surveilled L.B.’s home. He donned a disguise and

scripted his false entry. He had a rifle and planned to neutralize, if necessary, those

he found inside. But he preferred to wield a handgun and told his fake accomplice

he wouldn’t rob the house without one. Just before the trade, he was arrested. All

told, the district court did not clearly err by finding the circumstances showed Dennis

was about to complete all the acts he believed necessary to complete the Hobbs Act

robbery but for the police’s intervention.

_5-

Appellate Case: 22-1759 Pade: 5 Date Filed: 08/24/2023 Entry ID: 5309536

IIL.

Having upheld Dennis’s conviction for attempted Hobbs Act robbery, we now

consider whether we should vacate his § 924(c) conviction. After Dennis’s trial, the

Supreme Court decided United States v. Taylor and held that “attempted Hobbs Act

robbery does not satisfy the elements clause” of § 924(c). 142 S. Ct. at 2020. This

means that Dennis’s attempted Hobbs Act robbery conviction no longer qualifies as

a predicate crime of violence for his § 924(c) conviction.’ So we vacate his § 924(c)

conviction in accordance with Taylor.

In doing so, we apply the sentencing package doctrine and “vacate the entire

sentence on all counts so that, on remand, the trial court can reconfigure the

sentencing plan to ensure that it remains adequate to satisfy the sentencing factors

in 18 U.S.C. § 3553(a).” Greenlaw v. United States, 554 U.S. 237, 253 (2008); see

also United States v. McArthur, 784 F. App’x 459, 461 (8th Cir. 2019) (per curiam)

(applying the sentencing package doctrine where the defendant, who had been

charged in a multicount indictment and convicted of several crimes, successfully

challenged one of those convictions based on an intervening Supreme Court case).

The district court may “impose[] a sentence on the remaining counts longer than the

sentence originally imposed on those particular counts, but yielding an aggregate

sentence no longer than the aggregate sentence initially imposed.” Greenlaw, 554

US. at 253.

IV.

For the reasons above, we affirm Dennis’s attempted Hobbs Act robbery

conviction but vacate his § 924(c) conviction. We also affirm his convictions for

'Taylor applies to all cases “pending on direct review or not yet final” as of

June 21, 2022, the day the Court decided Taylor. See Griffith v. Kentucky, 479 U.S.

314, 328 (1987).

-6-

Anneallate Casa’: 299-1759 =Pane: 6 Nate Filed: 08/24/2023 Entrv ID: 5309536

being a felon in possession of a firearm and for possession of a stolen firearm.?

Finally, we vacate Dennis’s entire sentence and remand for resentencing.

“Dennis also raised an ineffective assistance of counsel claim on appeal. But

the record is undeveloped on this issue, and Dennis did not raise it below, so we

decline to address it on appeal. See United States v. Ramirez-Hernandez, 449 F.3d

824, 826-27 (8th Cir. 2006) (explaining that ineffective-assistance claims are

generally not decided on direct appeal unless “the record has been fully developed,”

the failure to act “would amount to a plain miscarriage of justice,” or “counsel’s

error is readily apparent’’).

-7-

Annellate Case: 22-1759 Paae:7 Date Filed: 08/24/2023 Entrv ID: 5309536

APPENDIX E

8:20-cr-00072-RFR-MDN Doc#117 Filed: 04/05/22 Page 1 of 8 - Page ID # 435

AO 245B(Rev. 09/19) Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

for the

District of Nebraska

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

V.

Case Number: 8:20CR72-001

USM Number: 31560-047

RUFUS E. DENNIS Andrew J. Wilson

Defendant’s Attorney

THE DEFENDANT:

LJ pleaded guilty to count(s)

LJ pleaded nolo contendere to count(s)_ which was accepted by the court.

was found guilty on counts I, II, V and VI of the Indictment. after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section& Nature of Offense Offense Ended Count

18:1951(a) & 2 ATTEMPTED INTERFERENCE WITH INTERSTATE — January 29, 2020 I

COMMERCE BY WAY OF ROBBERY

18:924(c)(1)(A) USING, CARRYING, OR POSSESSING A FIREARM _ January 29, 2020 Ill

DURING AND IN RELATION TO A CRIME OF VIOLENCE OR

DRUG TRAFFICKING CRIME

18:922(g)(1) POSSESSION OF A FIREARM BY A PROHIBITED January 29, 2020 Vv

PERSON

18:922(j) & 924(a)(2) POSSESSION OF A STOLEN WEAPON January 29, 2020 VI

The defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

L] The defendant has been found not guilty on count(s)

XJ Counts II and IV were dismissed on 2/25/2020 (see Order at filing 22) per the government’s motion.

IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of

name, residence, or mailing address until all fines, restitution, costs and special assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant shall notify the court and United States attorney of any material change in the defendant’s

economic circumstances.

April 1, 2022

Date of Imposition of Sentence:

s/ Robert F. Rossiter, Jr.

Chief United States District Judge

April 5, 2022

Date

8:20-cr-00072-RFR-MDN Doc#117 Filed: 04/05/22 Page 2 of 8 - Page ID # 436

AO245B(Rev 09/19) Judgment in a Criminal Case Judgment Page 2 of 8

DEFENDANT: RUFUS E. DENNIS

CASE NUMBER: 8:20CR72-001

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of

two hundred ten (210) months on Count I to be served concurrent to Counts V and VI; sixty (60) months on Count

III to be served consecutive to all counts; one hundred twenty (120) months on Count V to be served concurrent to

Counts I and VI and one hundred twenty (120) months on Count VI to be served concurrent to Counts I and V of

the Indictment (for a total of 270 months).

&IlThe Court makes the following recommendations to the Bureau of Prisons:

1. That the defendant be allowed to participate in the Residential Drug Treatment Program or any similar drug

treatment program available.

2. That the defendant be incarcerated in a federal facility as close as possible to FCI Pekin or Colorado.

3. Defendant should be given credit for time served.

The defendant is remanded to the custody of the United States Marshal.

(The defendant shall surrender to the United States Marshal for this district:

Cat

C1 as notified by the United States Marshal.

CThe defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

LC] before 2 p.m. on

CL) as notified by the United States Marshal.

LC as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant was delivered on to

at , with a certified copy of this judgment.

UNITED STATES MARSHAL

BY:

DEPUTY UNITED STATES MARSHAL

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