United States v. Jesse Robert Coop ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0178n.06
No. 21-5292
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Apr 20, 2023
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee ON APPEAL FROM THE
)
UNITED STATES DISTRICT
)
v. COURT FOR THE WESTERN
)
DISTRICT OF TENNESSEE
JESSE ROBERT COOP, )
)
Defendant-Appellant. OPINION
)
)
)
Before: GRIFFIN, WHITE, and NALBANDIAN, Circuit Judges.
HELENE N. WHITE, Circuit Judge. A jury convicted defendant Jesse Coop of one
count of aiding and abetting Hobbs Act robbery (Count 1), one count of aiding and abetting the
brandishing of a firearm during and in relation to a crime of violence (Count 2), and five counts of
conspiracy to possess with intent to distribute controlled substances (Counts 3 through 7). We
vacated Coop’s firearm conviction and remanded to the district court for resentencing. United
States v. Coop, 807 F. App’x 442, 450 (6th Cir. 2020). Coop appeals his new sentence, asserting
procedural and substantive errors. We AFFIRM.
I.
We recounted the facts of this case in our decision addressing Coop’s appeal of his
conviction, id. at 444-46, and repeat only the facts essential for our present review. On April 27,
2018, Coop and Keith Harrington, his roommate, spent several hours before dawn “walking back
and forth between their Memphis apartment and [Coop’s truck], and making at least two trips away
from the apartment before returning around 5:40 a.m.” Id. at 444. Shortly thereafter, the men
No. 21-5292, United States v. Coop
drove away in the truck after laying a motorcycle flat in the truck’s bed. Id. Soon after, they
arrived aboard the motorcycle at a CVS, where they parked in the back before entering the store
and walking around. Id. Coop soon returned to the motorcycle, while Harrington pulled a cap
over his face and approached the store’s pharmacist with a revolver and ordered him to get
oxycodone, hydrocodone, and suboxone from the store’s safe. Id. When Harrington left with the
drugs, the pharmacist heard a motorcycle starting. Id. at 445. Police quickly found Coop and
Harrington using a tracker in one of the pill bottles. Id. Security footage showed they returned to
their apartment by truck, with the motorcycle in the back, and then hid the motorcycle and went
inside. Id.Coop and Harrington were indicted on eight counts. Id. Harrington pleaded guilty but
Coop went to trial. Id. In his opening statement, Coop’s attorney argued that Coop did not know
Harrington had robbed the CVS until Harrington ran out with the pills and a gun, at which point
Coop gave Harrington a ride for fear of being shot. Id. The jury convicted Coop of aiding and
abetting Hobbs Act robbery, aiding and abetting the brandishing of a firearm in violation of
18 U.S.C. § 924(c), and conspiring to possess with intent to distribute controlled substances. Id.
at 446. The district court sentenced him to concurrent terms of 78 months’ imprisonment on
Counts 1 and 3 through 7, and to a consecutive term of 84 months’ imprisonment on Count 2,
which was the statutory minimum, totaling 162 months in prison. Id.Coop appealed the convictions, arguing that the evidence was insufficient; the district court
erred in its jury instructions and in responding to a question from the jury; and that aiding and
abetting Hobbs Act robbery is not a violent crime. Id. at 446-47. We found the evidence
insufficient to support the firearm conviction, explaining that the government needed to prove that
Coop “actively participated in the underlying drug trafficking or violent crime with advance
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No. 21-5292, United States v. Coop
knowledge that a confederate would use or carry a gun during the crime’s commission.” Rosemond
v. United States, 572 U.S. 65, 67 (2014). Although a jury can “infer from [a defendant’s] failure
to object or withdraw that he had such knowledge” where the “defendant continues to participate
in a crime after a gun was displayed or used by a confederate,” id. at 78 n.9, we reasoned that the
government did not show enough to establish “beyond a reasonable doubt that Coop knew that the
robbery he was planning would involve a firearm” because “the government presented no evidence
that Coop knew that Harrington was armed.” Coop, 807 F. App’x at 449. The government could
only point to evidence that Coop and Harrington had planned the robbery extensively. Id. We
vacated the firearm conviction and remanded for resentencing.
On remand, the government argued for the application of a five-level increase to Coop’s
base offense level under § 2B3.1(b)(2) of the Sentencing Guidelines, which applies “if a firearm
was brandished or possessed” during the commission of a robbery. USSG § 2B3.1(b)(2). The
five-level increase yielded a total offense level of 28, with a Guidelines range of 87 to 108 months
imprisonment. The government asserted that the fact that a jury convicted Coop of aiding and
abetting robbery was enough on its own to show that Coop had advance knowledge that Harrington
would use a gun for the robbery. The government also provided statements from witnesses it had
chosen not to call at trial. These statements, filed under seal, were provided to Coop. Notably,
one statement said that Harrington “owned a .45 caliber gun,” which he “kept in a closet in his
room unloaded,” and that both “[Harrington] and Mr. Coop handle[d] that firearm on an almost
daily basis.” Appellant’s Br. 14. Coop challenged the application of the enhancement and argued
for a total offense level of 27, with a Guidelines range of 78 to 97 months imprisonment.1
1
Although Coop asserted that a five-level increase to the base offense level for his firearm
conviction was inappropriate, his position resulted in a total offense level only one level lower
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No. 21-5292, United States v. Coop
Acknowledging our holding in the prior appeal that there was no evidence at all in the
record that Coop knew Harrington had a gun, the district court observed that the government has
a lower burden of proof for establishing relevant conduct at sentencing than in proving an element
of a crime at trial—a preponderance of the evidence versus beyond a reasonable doubt. Ultimately,
three factors persuaded the district court to apply the five-level increase: the robbery conviction;
the extensive planning by Coop and Harrington; and the additional witness statement that Coop
knew Harrington owned a gun and handled it with him frequently. The court resentenced Coop to
97 months in prison, followed by three years of supervised release.
II.
We review the reasonableness of a sentence for abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007). First, we consider whether the district court committed a “significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. Second,
we “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard,” accounting for “the totality of the circumstances, including the extent of any variance
from the Guidelines range.” Id. To find an abuse of discretion, we must be “left with a definite
and firm conviction that the district court committed a clear error of judgment.” United States v.
Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Coach, Inc. v. Goodfellow, 717 F.3d
than without the enhancement because he was also subject to the offense level for the group of
drug convictions. Without the five-level increase, the firearm offense level would be 21, but the
drug offense level would still be 26, and Coop would be subject to a one-level increase for the
combined offense level, resulting in a total offense level of 27. See USSG § 3D1.4.
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No. 21-5292, United States v. Coop
498, 505 (6th Cir. 2013)). We presume reasonableness if the sentence is within the Guidelines
range. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).
III.
Before proceeding to the merits, we acknowledge and reject Coop’s request in his reply
brief that we hold the case in abeyance pending a decision by the Supreme Court or action by
Congress regarding the use of acquitted conduct at sentencing. The Supreme Court has denied
certiorari in the case Coop raises, see Osby v. United States, 142 S. Ct. 97 (2021) (Mem), and we
will not await hypothetical legislative action.
IV.
The five-level increase applies “if a firearm was brandished or possessed” during the
commission of a robbery. USSG § 2B3.1(b)(2)(C). For “jointly undertaken criminal activity,”
relevant conduct for this increase includes “all acts and omissions of others that were (i) within the
scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity.” Id. § 1B1.3(a)(1)(B). A
sentencing court may “consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy.” Id. § 6A1.3(a). Coop argues that the district court
applied the wrong standard for relevant conduct and incorrectly found that the use of a firearm was
within the scope of the robbery and reasonably foreseeable.
A.
Coop first contends, based on statements made by the government and the district court,
that the district court used the wrong standard for attributing relevant conduct to a defendant
engaged in joint criminal activity. He asserts that the government argued that “he was liable for
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No. 21-5292, United States v. Coop
all acts that occurred during the robbery,” and he points to statements by the district court that he
contends show that the court accepted the government’s broad view. Appellant’s Br. 26.
According to his paraphrasing, the court told him that “even though he was not the one who pointed
the gun, and everyone agrees that he was not, he was still responsible for everything that happened
during the robbery,” and also “that while no one could know what was in his mind, everyone,
including the jury, could see and evaluate what he did.” Appellant’s Br. 28.
This argument exaggerates the government’s contention. The government did not argue
that everything that happened could be attributed to Coop; it argued that a firearm could always
be attributed in a robbery case. Although, as the district court noted, the government is wrong
about this, Coop distorts the district court’s statements, and the court plainly applied the correct
standard. The statements Coop relies on came well after the district court’s focused analysis of
the firearm issue, during a broader discussion of the Guidelines. The court never used the word
“everything” and certainly did not suggest that Coop being “responsible for what happened that
day” was the root of its analysis; the court had already applied the correct standards in deciding to
apply the five-level increase and was explaining that the law may hold people engaged in a joint
criminal enterprise accountable for others’ actions. R.136, PID 975-76. And the reference to the
jury was relevant because the court was explaining that it, like the jury, must evaluate the evidence
and draw reasonable inferences, and that it rejected Coop’s narrative of the facts, just as the jury
did for the robbery and drug convictions.
B.
Coop also argues that Harrington’s use of a firearm was not within the scope of the jointly
undertaken criminal activity. A court must make “particularized findings,” United States v.
Campbell, 279 F.3d 392, 400 (6th Cir. 2002), to “determine the scope of the criminal activity the
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No. 21-5292, United States v. Coop
particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and
objectives embraced by the defendant’s agreement),” USSG § 1B1.3 cmt. n.3(B). “[T]he court
may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the
defendant and others.” Id. According to Coop, the district court made insufficient findings
because its “entire analysis with regard to scope was that there was a robbery in which [he]
participated, and there was a video showing hours of planning.” Appellant’s Br. 31. In his view,
a district court must find more than “simply . . . that there was a robbery that was planned and
executed.” Id.
We first observe that Coop made no specific argument addressed to the scope factor at
resentencing. His written objection was to the five-level enhancement as a whole and asserted that
“there is no evidence that [he] possessed the firearm, saw the firearm, or even knew that Harrington
was armed.” At the resentencing hearing, although Coop’s attorney repeatedly discussed whether
the use of the firearm was reasonably foreseeable, he never specifically argued that the government
had failed to show the use of the firearm was within the scope of the jointly undertaken criminal
activity.2
The district court’s findings were sufficient, particularly considering that Coop made no
effort to undermine the government’s showing on this front. We consider several favors to
determine the scope of a defendant’s jointly undertaken criminal activity: “(1) the existence of a
single scheme; (2) similarities in modus operandi; (3) coordination of activities among schemers;
(4) pooling of resources or profits; (5) knowledge of the scope of the scheme; and (6) length and
degree of the defendant’s participation in the scheme.” United States v. Donadeo, 910 F.3d 886,
2
The probation officer mentioned the scope of the jointly undertaken criminal activity, but
Coop’s lawyer pivoted back to whether the firearm would have been reasonably foreseeable.
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No. 21-5292, United States v. Coop
895 (6th Cir. 2018) (citation omitted). These factors support that Harrington’s use of the firearm
was within the scope of the jointly undertaken criminal activity. This case involved a single
robbery with two individuals, and the government produced footage of Coop and Harrington
preparing together for hours at their apartment complex and “casing” the CVS together just before
Harrington pulled the gun. Coop, 807 F. App’x at 444, 448. Coop’s only argument is that the
government has not proved that he agreed to the use of a firearm, but the Guidelines instruct that
an agreement is not necessary. As explained in an application note for whether conduct was
“reasonably foreseeable,” if “two defendants agree to commit a robbery and, during the course of
that robbery, the first defendant assaults and injures a victim,” the second defendant is held
“accountable for the assault and injury to the victim (even if the second defendant had not agreed
to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the
assaultive conduct was within the scope of the jointly undertaken criminal activity (the robbery).”
USSG § 1B1.3, cmt. n.3(D). Here, the single, confined undertaken Hobbs Act robbery inherently
involved some “actual or threatened force, or violence, or fear of injury,” see 18 U.S.C.
§ 1951(b)(1), and Harrington applied a threat of force using a firearm within the scope of the jointly
undertaken Hobbs Act robbery. So Coop’s argument on scope fails.
C.
Coop next argues that the district court made insufficient findings regarding whether it was
reasonably foreseeable that Harrington would possess or brandish a firearm in connection with the
robbery. He asserts that “the district court’s only finding was that . . . Coop knew that Harrington
had a firearm in his apartment and so it was reasonably foreseeable that Harrington would use it
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No. 21-5292, United States v. Coop
during the robbery.” Appellant’s Br. 32. He also notes that “Hobbs Act robbery does not require
the use of a firearm, much less actual force.” See 18 U.S.C. § 1951(b)(1).
The district court’s findings were again sufficient. The court found the government met its
burden based on three pieces of information: Coop’s robbery conviction, evidence of Coop’s
extensive planning with Harrington, and the statement from the additional witness that Coop knew
that Harrington had a gun in the apartment and the two frequently handled it together. We find no
error. As the Guidelines explain, the government did not need to show that Coop and Harrington
had the exact same plan in mind in order to conclude that Harrington’s use of the gun was
foreseeable. See USSG § 1B1.3, cmt. n.3(D). It was enough for the government to show that
Coop knew Harrington owned a gun and had handled it frequently with him, combined with the
robbery conviction and footage showing hours of planning.
Coop’s counterarguments are unpersuasive. First, he notes that the additional witness
reported seeing Harrington and Coop handle a .45-caliber firearm on a regular basis but the gun
found on the day of the robbery was a .38-caliber handgun. However, as the district court noted,
the fact that Coop knew Harrington owned a gun and had handled it with him often was enough—
combined with the other facts—to suggest that Coop could foresee the use of a firearm, even if
Harrington used a different firearm for the robbery. Second, Coop notes that, although the
additional witness denied ever handling the .45-caliber firearm and said he did not play with guns,
another witness told police there was a .38-caliber special Glock in the apartment and that he had
seen Harrington and the additional witness in possession of this weapon. We agree with the district
court that this discrepancy does not suggest the additional witness was being untruthful about Coop
and Harrington handling the .45-caliber firearm together; rather, it suggests the witness sought to
avoid implicating himself. Third, Coop notes that Harrington had a limited criminal history, falling
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No. 21-5292, United States v. Coop
into criminal history category 1 under the Guidelines, and that the additional witness stated the
.45-caliber firearm was kept unloaded in a closet, so Coop had little reason to expect a gun would
be used even if he did know that Harrington owned one. Nevertheless, given evidence that Coop
knew Harrington owned a gun and frequently handled it with him; their extensive planning
together; and the robbery conviction, the court could still find that the possession and brandishing
of a firearm in connection with the robbery was foreseeable.
As for the elements of Hobbs Act robbery, Coop misses the point. He again asserts that
the district court reasoned that in every robbery an accomplice can foresee the use of a firearm.
But the district court explicitly—and correctly—rejected that argument. Instead, as discussed, the
court found based on the combination of the robbery conviction, the extensive planning, and the
additional witness’s statement about Coop’s knowledge of Harrington’s firearm ownership that it
was more likely than not foreseeable that Harrington would possess and brandish a firearm in
connection with the robbery.
V.
Lastly, Coop argues the district court may have been influenced by the government’s
argument that he acted improperly at trial, rendering his sentence substantively unreasonable. On
remand, the government presented new evidence that it claimed had not been presented at trial
because the government believed Coop would testify and waited to present the evidence in rebuttal.
The government expressed frustration with Coop’s trial tactics, and Coop in turn expressed
frustration with the government. The district court reminded Coop that the prosecutor was only
doing his job and his feelings about the prosecutor were irrelevant to the proceedings. Coop asserts
that these comments from the district court “chastis[ing]” him show it “may have been swayed by
the prosecution’s arguments” about Coop’s conduct at trial. Appellant’s Br. 39.
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No. 21-5292, United States v. Coop
Because the district court imposed a sentence within the Guidelines range, we presume
reasonableness, and Coop has given us no reason to vary from that presumption beyond vague
speculation. Vonner, 516 F.3d at 389-90. Indeed, he concedes that the district court explicitly
noted that his trial strategy was “not the issue . . . for resentencing” and that the court “asked the
government to focus upon use or possession of a firearm.” Appellant’s Br. 36-37. Further, the
record reflects careful deliberation by the district court with no hint of bias. The court explained
that, before the hearing, it had considered a sentence at the upper end of the Guidelines but that it
imposed a midrange sentence because Coop’s attorney showed he had “progressed while . . .
incarcerated.” R.136, PID 983. Indeed, Coop’s 97-month sentence is at the upper bound of the
range that he argued should apply. We find no abuse of discretion.
VI.
For the reasons stated, we AFFIRM.
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