United States v. Taylor Pepe ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAYLOR KING PEPE,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:15-cr-00020-GLR-1)
Submitted: August 26, 2020 Decided: June 4, 2021
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Joanna Silver, Assistant Federal Public Defender,
Paresh Patel, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Robert K. Hur, United States Attorney,
Lauren E. Perry, Assistant United States Attorney, Sandra Wilkinson, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Taylor King Pepe pled guilty, pursuant to a written plea agreement, to conspiracy
to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and to aiding and
abetting the brandishing of a firearm during a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(c). He received a 420-month sentence. On appeal, Pepe contends that in light
of United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Simms, 914 F.3d
229 (4th Cir.) (en banc), cert. denied, 140 S. Ct. 304 (2019), his 18 U.S.C. § 924(c)
conviction must be vacated because conspiracy to commit Hobbs Act robbery, the
predicate for his § 924(c) conviction, is not a crime of violence. Pepe also raises two
sentencing challenges. We vacate Pepe’s conviction on the 18 U.S.C. § 924(c) count and
remand for resentencing.
Because Pepe did not argue in the district court that conspiracy to commit Hobbs
Act robbery is not a crime of violence, we review his claim for plain error. United States v.
Walker, 934 F.3d 375, 379-80 (4th Cir. 2019). To prevail, Pepe “must show (1) an error
that (2) was clear or obvious, (3) affects substantial rights, and (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 378 (brackets and
internal quotation marks omitted).
“To sustain a conviction under 18 U.S.C. § 924(c), the government must prove that
the defendant (1) used or carried a firearm and (2) did so during and in relation to a crime
of violence.” United States v. Fuertes, 805 F.3d 485, 497 (4th Cir. 2015) (internal
quotation marks omitted). Section 924(c)(3) provides two definitions of the term “crime
of violence”—the force clause in § 924(c)(3)(A) and the residual clause in § 924(c)(3)(B).
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In Davis, the Supreme Court concluded that the residual clause in § 924(c)(3)(B) was
unconstitutionally vague. 139 S. Ct. at 2323-24. And in Simms, we held that conspiracy
to commit Hobbs Act robbery is not a crime of violence under the force clause in
§ 924(c)(3)(A). 914 F.3d at 233-34. The parties thus agree that the § 924(c) conviction
should be vacated because conspiracy to commit Hobbs Act robbery does not qualify as a
crime of violence under § 924(c)(3) in light of Davis and Simms. We agree. We therefore
vacate Pepe’s § 924(c) conviction.
Pepe also challenges his sentence on appeal and contends that the district court erred
by applying a cross-reference to first-degree murder, see U.S. Sentencing Guidelines
Manual §§ 2B3.1(c)(1), 2A1.1(a) (2015), and a two-level leadership role enhancement
under USSG § 3B1.1(c). Because we must remand for resentencing, we do not address
Pepe’s sentencing arguments. See United States v. Ventura, 864 F.3d 301, 309 (4th Cir.
2017); see also Davis, 139 S. Ct. at 2336 (“[W]hen a defendant’s § 924(c) conviction is
invalidated, courts of appeals routinely vacate the defendant’s entire sentence on all counts
so that the district court may increase the sentences for any remaining counts if such an
increase is warranted.” (internal quotation marks omitted)).
Accordingly, we vacate the § 924(c) conviction and remand for resentencing on the
remaining count. We dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
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