United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2016 Decided June 10, 2016 

No. 13-3096 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

DARIUS MCKEEVER, 

APPELLANT

Consolidated with 13-3105, 13-3109 

Appeals from the United States District Court 

for the District of Columbia 

(No. 1:13-cr-00109-3) 

(No. 1:13-cr-00109-2) 

(No. 1:13-cr-00109-1) 

Robert S. Becker and Carmen D. Hernandez, both 

appointed by the court, argued the causes for appellants. With 

them on the joint briefs was Dennis M. Hart, appointed by the 

court. 

Lauren R. Bates, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief was Elizabeth 

Trosman, Assistant U.S. Attorney. 
2 

Before: PILLARD and WILKINS, Circuit Judges, and 

EDWARDS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge 

EDWARDS. 

EDWARDS, Senior Circuit Judge: Detectives from the 

Metropolitan Police Narcotics & Special Investigations 

Division arrested Darius McKeever, Darnell Wallace, Trevor 

Hopkins (“Appellants”), and co-defendant Kenneth BennyDean on April 4, 2013, in a reverse sting operation, and 

charged them with conspiracy to interfere with commerce by 

robbing a liquor store in violation of the Hobbs Act, 18 

U.S.C. § 1951. A Federal Grand Jury returned a single-count 

indictment on April 9, 2013. Appellants Wallace and 

McKeever entered guilty pleas to the indictment on August 1, 

2013. Appellant Hopkins pleaded guilty to the indictment on 

September 12, 2013. On October 9, 2013, the District Court 

sentenced Wallace to a term of imprisonment of 65 months, 

supervised release of 36 months, and a special assessment of 

$100. Wallace noted this timely appeal on October 28, 2013. 

Also on October 9, 2013, the District Court sentenced 

McKeever to a term of imprisonment of 84 months, 

supervised release of 36 months, and a special assessment of 

$100. McKeever noted this timely appeal on October 14, 

2013. On December 12, 2013, the District Court sentenced 

Hopkins to a term of imprisonment of 80 months, supervised 

release of 36 months, and a special assessment of $100. 

Hopkins noted this timely appeal on December 27, 2013. Codefendant Benny-Dean went to trial and was acquitted by a 

jury on October 23, 2013. 

Appellants, together, argue that undercover police 

officers instigated the use of firearms in the reverse sting 

operation leading to their arrest. According to Appellants, the 
3 

police brought a pistol and assault rifle to a meeting at which 

the robbery was being planned by Appellants and the 

undercover officers, and for a few minutes the officers placed 

those weapons in Hopkins’ and Wallace’s hands. Br. of 

Appellants at 13. None of the Appellants was carrying a 

weapon of his own. Appellants were arrested during the 

meeting without any robbery actually taking place. In light of 

these circumstances, Appellants have raised the following 

issues on appeal. 

First, Appellants argue that, because none of them 

“possessed firearms in furtherance of the criminal 

agreement,” the District Court erred when it “enhanced each 

Appellant’s sentence 5 levels pursuant to U.S.S.G. §§ 2X1.1 

and 2B3.1(b)(2).” Id. Second, Appellants claim that “they are 

entitled to [a] remand for resentencing because [the District 

Court] failed to consider whether police introduction of 

firearms into the conspiracy was sentenc[ing] entrapment.” Id.

Third, Appellant Hopkins raises a number of contentions, 

inter alia, that the District Court lacked subject matter 

jurisdiction over the case, id. at 36-38; that “[t]he District 

Court erred in conducting a Rule 11 plea inquiry that failed to 

establish that [he] knew his actions would have an interstate 

impact or that he had any reason to believe the conspiracy 

was one that satisfied the elements of the Hobbs Act,” id. at 

13-14; and that the District Court “erred in failing to establish 

during the Rule 11 inquiry that Hopkins agreed with anyone 

other than the undercover officers to engage in the conduct 

which constituted the conspiracy,” id. at 14. 

We reject Appellants’ challenge to the firearm 

enhancement. We agree with the Government that “[t]he 

district court did not err in applying a five-level enhancement 

under U.S.S.G. § 2B3.1(b)(2) for possession of a firearm. 

Actual possession of a firearm is not a prerequisite to 
4 

application of the enhancement for inchoate offenses, such as 

the robbery conspiracy in this case, and the record amply 

supports the district court’s finding that appellants intended 

that firearms would be possessed during the robbery and that 

such possession was reasonably foreseeable.” Br. for 

Appellee at 19-20. We therefore affirm the judgment of the 

District Court on this point. 

We agree with Appellants that the case must be remanded 

to allow the District Court to address whether the alleged 

police introduction of firearms into the conspiracy was 

sentencing entrapment. The Government contends that, 

because Appellants did not properly raise sentencing 

entrapment with the District Court, the court was not required 

to address the matter. Id. at 20. The issue is not as simple as 

the Government suggests. At worst, Appellants Wallace and 

McKeever were not as clear as they might have been in 

raising with the District Court their claims that they were 

entitled to downward variances in their sentences because 

they were victims of sentencing entrapment. The record also 

suggests that the trial judge had an inkling of the issue, but 

never addressed it. And there is no doubt that Appellant 

Hopkins expressly raised an argument for mitigation based on 

sentencing entrapment, but the trial judge never considered 

his request. Moreover, in its brief to this court, the 

Government not only appears to acknowledge that Hopkins 

raised the issue with the District Court, but goes on to 

concede that, “[t]o the extent that this Court finds that 

Hopkins sufficiently asserted a sentencing manipulation 

argument below, we agree that discussion of the point would 

have been in order.” Id.

In circumstances such as these, when we cannot discern 

the District Court’s disposition of the sentencing entrapment 

issue, justice will be best served if we remand the case to 
5 

afford the trial judge an opportunity to address the issue in the 

first instance. See United States v. Saani, 650 F.3d 761, 771-

72 (D.C. Cir. 2011) (remanding the case “for resentencing 

solely because the record [wa]s unclear as to whether an 

arguably improper consideration infected the district court’s 

decisions to deny [appellant] credit for accepting 

responsibility pursuant to U.S.S.G. § 3E1.1 and to vary 

upward from the Guidelines sentencing range pursuant to 18 

U.S.C. § 3553(a)”); United States v. Williams, 951 F.2d 1287, 

1291 (D.C. Cir. 1991) (explaining that an appellate court has 

the inherent authority to remand the record when it is unable 

to determine the basis for the District Court’s actions).

 Finally, we find no merit in Appellant Hopkins’ other 

challenges. We therefore affirm the judgment of the District 

Court with respect to the various claims raised by Appellant 

Hopkins. 

I. BACKGROUND

 In January 2013, the Metropolitan Police Department 

received information that Appellant Hopkins had been 

released from jail and was seeking to purchase a large 

quantity of narcotics. Hoping to waylay Hopkins, Officer 

Miguel Rodriguez-Gil, acting in an undercover capacity, 

reached out to Hopkins and arranged to meet. Rodriguez-Gil 

and several other undercover officers met with Hopkins and 

Appellant Wallace on January 23 to discuss a potential drug 

deal. It quickly became apparent, however, that Hopkins and 

Wallace did not have the money necessary to purchase the 

quantity of drugs that the officers had available to sell. 

Rodriguez-Gil decided to switch tactics and asked 

Hopkins and Wallace if they would be interested in 

committing a robbery. Rodriguez-Gil explained that a certain 
6 

individual owed him money for narcotics, and that Hopkins 

and Wallace could help get the money back. Hopkins and 

Wallace responded enthusiastically. 

 The officers met several times with Hopkins in March to 

discuss the details of the planned robbery. At one of these 

meetings, Hopkins introduced the officers to Appellant 

McKeever, who actively contributed to the meeting’s 

discussion. As part of that discussion, Rodriguez-Gil asked 

Hopkins and McKeever “what kind of weapons would they 

want,” and suggested that the officers could bring firearms. In 

response, Hopkins indicated that Appellants could also bring 

firearms. Hopkins later informed the officers that he had 

obtained the firearms, and that “his team” was ready. 

Sometime on or near April 4, 2013, the officers and 

Appellants discussed that the robbery was to be of a liquor 

store; Appellants were led to believe that the owner of the 

liquor store was to be the victim of the robbery scheme. The 

plan, as understood by the Appellants, was that they would 

rob the liquor store. At one point in the planning, RodriguezGil showed Hopkins a photograph of the store. 

On April 4, 2013, the three Appellants, along with 

Benny-Dean, arrived together at a loading dock in front of a 

storage facility to make final preparations for the robbery. 

Rodriguez-Gil arrived in an undercover vehicle. Hopkins and 

Wallace entered Rodriguez-Gil’s vehicle, and Rodriguez-Gil 

handed each man a firearm to inspect. Hopkins indicated that 

McKeever was supposed to have brought firearms as well, 

but, in the rush, had left them behind. As a result, none of the 

Appellants had a firearm of his own. 

Rodriguez-Gil, several other undercover officers, the 

Appellants, and Benny-Dean then entered the storage facility. 
7 

The officers led the men to a room within the facility that had 

been set up with audio and video equipment. In that room, the 

group discussed the layout of the liquor store and how the 

robbery would proceed. Each Appellant participated: Wallace 

stated that he would bring one of Rodriguez-Gil’s firearms to 

the store. McKeever inquired as to whether the store was 

fitted with an alarm system. And Hopkins mentioned that he 

could get the store owner to give up the money by applying a 

curling iron to the owner’s groin. Following these discussions, 

an Emergency Response Team entered the room and arrested 

Appellants and Benny-Dean. 

As noted above, Appellants and Benny-Dean were 

indicted for conspiracy to interfere with interstate commerce 

by robbery, pursuant to the Hobbs Act, 18 U.S.C. § 1951. 

Appellants each pled guilty before the District Court. BennyDean proceeded to trial and was acquitted by a jury. 

The District Court then sentenced Appellants to the terms 

noted above. Wallace and McKeever were sentenced on 

October 9, 2013, at a joint sentencing hearing, while Hopkins 

was sentenced on December 12, 2013, at a separate hearing. 

At each hearing, the District Court determined the sentencing 

range suggested by the U.S. Sentencing Commission 

Guidelines Manual (“Guidelines”) then in effect. The District 

Court applied § 2X1.1, the Conspiracy Guideline. Following 

§ 2X1.1’s instructions, the District Court utilized the base 

offense level and adjustments set forth in § 2B3.1, the 

Robbery Guideline. One such adjustment was 

§ 2B3.1(b)(2)(C) (the “Gun Bump”), pursuant to which a 

defendant’s sentence may be enhanced “if a firearm was 

brandished or possessed” in the commission of the offense. 

The District Court explained that this adjustment was 

appropriate because Appellants had each been aware that the 

intended robbery was to involve firearms. The District Court 
8 

concluded the hearings by sentencing each Appellant to the 

low end of the Guidelines range applicable to him. 

Appellants now appeal their sentences. They contend that 

the District Court should not have applied the Gun Bump in 

calculating their Guidelines ranges. They also argue that the 

District Court failed to consider the requisite statutory factors 

set forth in 18 U.S.C. § 3553(a), in light of Appellants’ 

objections that the police officers had engaged in sentencing 

entrapment by allegedly introducing firearms into the 

conspiracy for the purpose of enhancing Appellants’ 

sentences. 

Appellant Hopkins raises numerous additional challenges 

to his conviction and sentence. Hopkins argues that the 

District Court lacked subject matter jurisdiction; that the 

officers’ conduct violated Due Process; that his guilty plea 

was invalid because there was no factual basis for the plea 

and he did not understand the nature of his offense; that his 

sentence was unreasonable because the District Court failed to 

consider mitigating circumstances and because his criminal 

history category had been miscalculated; and, finally, that his 

counsel was constitutionally defective in failing to properly 

investigate his criminal history and alert the District Court to 

the alleged miscalculation. 

II. ANALYSIS

A. Standards of Review 

“In United States v. Booker, 543 U.S. 220 (2005), the 

United States Supreme Court declared the Sentencing 

Guidelines to be advisory only and instructed appellate courts 

to review sentences for reasonableness in light of the factors 

set forth in 18 U.S.C. § 3553(a). After Booker, our review of 
9 

sentencing challenges that have been properly preserved is for 

abuse of discretion under a two-step analysis.” United States 

v. Locke, 664 F.3d 353, 356 (D.C. Cir. 2011) (citations 

omitted); see also Gall v. United States, 552 U.S. 38, 51 

(2007). 

At the first step, we “ensure that the district court 

committed no significant procedural error,” such as 

“improperly calculating[] the Guidelines range, . . . failing to 

consider the § 3553(a) factors, selecting a sentence based on 

clearly erroneous facts, or failing to adequately explain the 

chosen sentence.” Gall, 552 U.S. at 51. “We review purely 

legal questions de novo and factual findings for clear error, 

and we give ‘due deference’ to the district court’s application 

of the Guidelines to facts. At the second step, we consider the 

substantive reasonableness of the sentences in light of the 

totality of the circumstances, reversing only if we conclude 

that the district court abused its discretion.” United States v. 

Jones, 744 F.3d 1362, 1366 (D.C. Cir. 2014) (quoting United 

States v. Henry, 557 F.3d 642, 645 (D.C. Cir. 2009)). 

 

In the discussion below, we refer to the Guidelines in 

effect at the time Appellants were sentenced. 18 U.S.C. 

§ 3553(a)(4)(A)(ii) (directing courts to generally use the 

Guidelines “in effect on the date the defendant is sentenced”). 

For Wallace and McKeever, the 2012 Guidelines apply; for 

Hopkins, the 2013 Guidelines apply. These two versions of 

the Guidelines are substantially the same. 

B. The Gun Bump 

The Sentencing Guidelines specify a five-level 

enhancement for a conspiracy to commit robbery if it is 

established “with reasonable certainty” that the conspirators 

intended to possess or brandish a firearm during the crime. 
10 

See Guidelines §§ 2B3.1(b)(2)(C) (five-level enhancement 

warranted if firearm brandished or possessed during robbery); 

2X1.1(a) (for inchoate offense, base offense level is to be 

determined “from the guideline for the substantive offense, 

plus any enhancements from such guideline for any intended 

offense conduct that can be established with reasonable 

certainty”). Appellants argue that the District Court erred in 

applying this so-called “Gun Bump” enhancement to their 

sentences. 

 Appellants first contend that “§ 2B3.1(b)(2) applies to a 

defendant’s actual conduct, not intended conduct, and because 

§ 2B3.1 explicitly covers conspiracy to commit a Hobbs Act 

robbery, § 2X1.1 does not apply.” Br. of Appellants at 13. In 

support of this position, Appellants cite United States v. 

Campa, 529 F.3d 980, 1014 (11th Cir. 2008); United States v. 

Van Boom, 961 F.2d 145, 146-47 (9th Cir. 1992); and United 

States v. Williams, 891 F.2d 962, 965 (1st Cir. 1989). Id. at 31 

n.14. 

The Government argues that Appellants’ position rests on 

a misguided reading of the Sentencing Guidelines: 

[T]he Guidelines [direct] that, “[i]f the offense involved a 

conspiracy, attempt or solicitation, refer to § 2X1.1 

(Attempt, Solicitation, or Conspiracy) as well as the 

guideline referenced in the Statutory Index for the 

substantive offense.” U.S.S.G. § 1B1.2(a). Section 

2X1.1(c) even more specifically directs that “[w]hen an 

attempt, solicitation, or conspiracy is expressly covered 

by another offense guideline section, apply that guideline 

section.” U.S.S.G. § 2X1.1(c). Section 2B3.1, the 

guideline for robbery, is not included in the list of 

sections that expressly covers conspiracies. Therefore, 

the guidelines direct courts to apply § 2X1.1 in 
11 

determining a defendant’s sentence for conspiracy to 

commit robbery. 

Br. for Appellee at 30-31 (third and fourth alterations in 

original). 

In support of its position, the Government cites United 

States v. Gonzales, 642 F.3d 504, 505 (5th Cir. 2011) (per 

curiam); United States v. Mershon, 322 F. App’x 232, 236 (3d 

Cir. 2009); United States v. Martinez, 342 F.3d 1203, 1205 

(10th Cir. 2003) (citing United States v. Bolden, 132 F.3d 

1353, 1357 (10th Cir. 1997)); United States v. Joost, No. 95-

2031, 1996 WL 480215, at *11-12 (1st Cir. Aug. 7, 1996); 

and United States v. Amato, 46 F.3d 1255, 1259-61 (2d Cir. 

1995). The Government also suggests that the First Circuit no 

longer follows Williams, 891 F.2d 962, a case cited by 

Appellants; instead, it now applies § 2X1.1 to conspiracies 

under the Hobbs Act. Br. of Appellee at 31 n.22 (citing Joost, 

1996 WL 480215, at *12). The Government additionally 

points out that “the Eleventh Circuit case cited by appellants 

based its holding on United States v. Skowronski, 968 F.2d 

242, 250 (2d Cir. 1992), a Second Circuit decision that was 

later overruled in Amato. See United States v. Thomas, 8 F.3d 

1552, 1564-65 (11th Cir. 1993).” Id. at 32 n.22. 

 We think that the Government has the better of this 

argument. “We start with the text and structure of the 

Guidelines.” United States v. Chatman, 986 F.2d 1446, 1450 

(D.C. Cir. 1993). Section 1B1.1 directs the sentencing court to 

begin by determining the applicable guideline section 

pursuant to § 1B1.2. Guidelines § 1B1.1(a)(1). Section 1B1.2 

instructs the court to “[r]efer to the Statutory Index (Appendix 

A) to determine the Chapter Two offense guideline.” 

Id. § 1B1.2(a). As Appellants point out, the Statutory Index 

lists “2B3.1” for the Hobbs Act, but does not list § 2X1.1. Id.
12 

at Appendix A. However, the next sentence in § 1B1.2 

expressly states: “If the offense involved a conspiracy, 

attempt, or solicitation, refer to § 2X1.1 . . . .” Id. § 1B1.2(a) 

(emphasis added). This language indicates that § 2X1.1 is the 

proper section to which the court should generally look in 

determining sentences for conspiracy crimes with respect to 

which there are no specific guidelines, like here. See 

Martinez, 342 F.3d at 1206. 

 Section 2X1.1(c) states that “[w]hen an attempt, 

solicitation, or conspiracy is expressly covered by another 

offense guideline section, apply that guideline section.” 

Guidelines § 2X1.1(c). The Commentary to § 2X1.1 provides 

that “Offense guidelines that expressly cover conspiracies 

include:” – and then lists 19 guideline sections that involve 

conspiracies. Id. § 2X1.1 Application Note 1 (for example, 

§ 2A1.5 (“Conspiracy or Solicitation to Commit Murder”)). 

Section 2B3.1 is not among the sections listed, nor does 

§ 2B3.1 expressly cover conspiracies. Therefore, it appears 

plain that, for a Hobbs Act robbery conspiracy, a sentencing 

court should apply § 2X1.1 and not § 2B3.1. See Martinez, 

342 F.3d at 1206 (noting that § 2B3.1 does not expressly 

cover attempted robbery).

Appellants argue that the term “expressly” in § 2X1.1(c) 

refers to the underlying statute, not to the guideline section. In 

Appellants’ view, because statutes like the Hobbs Act 

expressly mention conspiracies, a court should apply the 

guideline section listed in the Statutory Index (which, for a 

Hobbs Act robbery, is § 2B3.1). See United States v. 

Hernandez-Franco, 189 F.3d 1151, 1158-59 (9th Cir. 1999); 

Thomas, 8 F.3d at 1564-65. We reject this view, however, 

because it is contrary to the text of § 2X1.1(c), “which speaks 

specifically in terms of relevant guideline sections and not 

underlying statutes.” Martinez, 342 F.3d at 1207; see also 
13 

Guidelines § 2X1.1(c) (“expressly covered by another offense 

guideline section” (emphasis added)). The text of the 

Guidelines nowhere suggests that the language of the 

underlying statute should be considered. 

Appellants also point out that one of the aforementioned 

guideline sections listed in the Commentary to § 2X1.1 – 

§ 2H1.1 – does not expressly mention the word “conspiracy.” 

Thus, according to Appellants, § 2X1.1(c) does not require 

that the conspiracy be “expressly covered by another offense 

guideline section,” even though that is what the text of 

§ 2X1.1(c) says. Guidelines § 2X1.1(c). Appellants are 

correct that the word “conspiracy” does not appear in 

§ 2H1.1. However, this fact is not a reason to ignore the plain 

text of the Guidelines. Stinson v. United States, 508 U.S. 36, 

38 (1993) (Commentary is not authoritative if inconsistent 

with the Guidelines’ plain text). Moreover, § 2H1.1 appears to 

be structured to include conspiracies: it directs courts to 

consider “the offense level from the offense guideline 

applicable to any underlying offense,” Guidelines 

§ 2H1.1(a)(1), and the Commentary to § 2H1.1 mentions 

“conspiracy,” id. at § 2H1.1 Application Note 1. In other 

words, we find no merit in Appellants’ position. 

Finally, in their Reply Brief, Appellants belatedly attack 

the Government’s reliance on Amato, 46 F.3d 1255. Reply Br. 

of Appellants at 9-12. In Amato, the court distinguished 

Skowronski, 968 F.2d at 250, an earlier decision from the 

Second Circuit that had applied § 2B3.1 to a Hobbs Act 

conspiracy. Amato, 46 F.3d at 1261. The Amato court 

explained: 

When Skowronski was decided, § 2E1.5 of the Guidelines 

expressly referred Hobbs Act violations to . . . § 2B3.1 

. . . . That provision, however, was deleted from the 
14 

Guidelines. USSC App. C, amend. 481 (Nov. 1993). . . . 

Now that there is no longer a provision of guidelines 

directing Hobbs Act conspiracies to § 2B3.1, they are 

covered by the conspiracy guideline, § 2X1.1. 

Id. (citing Skowronski, 968 F.2d at 250). Appellants argue that 

the 1993 amendment was not intended “to apply § 2X1.1 to 

Hobbs Act robbery conspiracies,” but rather “to make the 

Guidelines more manageable and consistent.” Reply Br. of 

Appellants at 11-12. It is noteworthy that Appellants’ 

argument rests on an assumption that the former § 2E1.5, 

entitled “Hobbs Act Extortion or Robbery,” covered Hobbs 

Act conspiracies. Guidelines § 2E1.5 (1992). They are 

mistaken in their assumption. Furthermore, as our discussion 

above makes clear, our disposition of the “gun bump” issue 

rests on the text and structure of the Guidelines, not on the 

analysis in Amato. Therefore, we do not find Appellants’ 

argument to be compelling. In any event, Appellants failed to 

preserve this argument, so we need not address it here. MBI 

Grp., Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568, 575 

(D.C. Cir. 2010) (noting that, in general, arguments made for 

the first time in reply briefs are forfeited). 

Appellants additionally contend that “the mere fact that 

[they] . . . discussed using guns in the robbery [is] 

insufficient” to justify a Gun Bump enhancement in 

sentencing. Br. of Appellants at 21. According to Appellants, 

a Gun Bump enhancement can only apply if Appellants 

actually possessed firearms, not if they simply agreed to bring 

firearms to a robbery. Id. at 22, 32. Appellants’ position is 

mistaken. 

Section 2X1.1(a) directs courts to apply “[t]he base 

offense level from the guideline for the substantive offense, 

plus any adjustments from such guideline for any intended
15 

offense conduct that can be established with reasonable 

certainty.” Guidelines § 2X1.1(a) (emphasis added). The 

Commentary to § 2X1.1 further illustrates: 

[T]he . . . specific offense characteristics from the 

guideline for the substantive offense that apply are those 

that are determined to have been specifically intended or 

actually occurred. . . . For example, if two defendants are 

arrested during the conspiratorial stage of planning an 

armed bank robbery, the offense level . . . . would . . . 

reflect the level applicable to robbery . . . with the 

enhancement for possession of a weapon. 

Id. § 2X1.1 Application Note 2 (emphasis added). 

The Commentary makes quite clear that actual possession 

is not required for the Gun Bump to apply. See Stinson, 508 

U.S. at 38 (Guidelines Commentary is generally 

authoritative). And, as the District Court noted, each 

Appellant need not intend to personally possess a firearm. 

Rather, “it is enough that the defendant was aware that 

brandishing or possessing firearms was part of the 

conspiratorial agreement.” United States v. Capanelli, 479 

F.3d 163, 167 (2d Cir. 2007) (per curiam); see also 

Guidelines § 1B1.3(a)(1)(B) (offense conduct includes “all 

reasonably foreseeable acts and omissions of others in 

furtherance of the jointly undertaken criminal activity” 

(emphasis added)). The District Court did not err in 

interpreting § 2X1.1.

Finally, Appellants contend that the District Court erred 

in finding that each Appellant was aware that the robbery 

would involve firearms. In making this finding, the District 

Court credited the testimony of Rodriguez-Gil, who appeared 

at the sentencing hearing that was held for Wallace and 
16 

McKeever on October 9, 2013. Appellants assert that 

“Rodriguez-Gil’s testimony about Appellants’ discussions 

regarding firearms is incredible” because it is allegedly 

inconsistent and “devoid of details.” Br. of Appellants at 19. 

This is a groundless argument, and it certainly does not 

support Appellants’ contention that the District Court’s 

finding was clearly erroneous. 

In sum, we have no basis upon which to overturn the 

District Court’s application of the Gun Bump enhancement to 

Appellants’ sentences. 

C. Sentencing Entrapment 

“Before United States v. Booker, 543 U.S. 220 (2005), 

rendered the U.S. Sentencing Guidelines advisory, we forbade 

district courts from relying on sentencing [entrapment] as a 

basis for mitigation. See United States v. Walls, 70 F.3d 1323, 

1329–30 (D.C. Cir. 1995). But Booker and its offspring 

fundamentally changed the sentencing calculus, requiring 

courts to now consider any mitigation argument related to the 

sentencing factors contained in 18 U.S.C. § 3553(a) when 

imposing a sentence within the statutory range of 

punishment.” United States v. Bigley, 786 F.3d 11, 12 (D.C. 

Cir. 2015) (per curiam). The law of the circuit is now clear 

that a defendant may raise a mitigation argument resting on 

sentencing entrapment to request a downward variance in his 

sentence. And “[w]hen a district court confronts a 

nonfrivolous argument for a sentence below the relevant 

guideline range, it must consider it.” Id. at 14 (citing Locke, 

664 F.3d at 357). 

The theory of sentencing entrapment is “that if the 

government induces a defendant to commit a more serious 

crime when he was predisposed to commit a less serious 
17 

offense, the defendant should be sentenced only for the lesser 

offense.” Walls, 70 F.3d at 1329. “The main element in any 

entrapment defense is . . . the defendant’s ‘predisposition’—

‘whether the defendant was an “unwary innocent” or, instead, 

an “unwary criminal” who readily availed himself of the 

opportunity to perpetrate the crime.’” Id. (quoting Mathews v. 

United States, 485 U.S. 58, 63 (1988)). 

Appellants claim that they requested variances to account 

for the police introduction of the guns into the conspiracy to 

trigger the 5-level enhancement. Br. of Appellants at 32-34. 

However, according to Appellants, the District Court “never 

evaluated the [requisite] statutory [§ 3553(a)] factors” to 

address their sentencing entrapment claims. Id. at 34. 

The Government’s response is perplexing. On the one 

hand, the Government argues that Appellants Wallace and 

McKeever never “argued that, once the district court applied 

the gun enhancement, it should consider the fact that the 

weapons were supplied by undercover officers when 

determining the appropriate sentence under 18 U.S.C. 

§ 3553(a).” Br. for Appellee at 36. However, the Government 

acknowledges that Appellant “Hopkins argued for a 

‘modicum of mitigation’ because the undercover officers 

supplied the firearms that triggered the gun enhancement.” Id.

The Government then tellingly concedes that 

[i]f this Court finds that Hopkins adequately raised a 

sentencing manipulation argument for mitigation before 

the district court, we agree that discussion of the point 

would have been in order pursuant to Bigley, 786 F.3d at 

16 (finding plain error where district court failed to 

consider defendant’s nonfrivoulous mitigation argument). 
18 

Id. at 36 n.23. The Government also tellingly acknowledges 

that, with respect to all three Appellants, the trial judge 

apparently was aware of the sentencing entrapment issue: 

Although such discussion did not occur at Hopkins’s 

sentencing hearing on December 12, 2013, the record 

demonstrates that the district court was aware that the 

firearms were supplied by undercover officers and, in 

determining the appropriate sentences in this case, the 

district court considered that the offense was “created by 

the police.” 

Id. (quoting Tr. of Joint Sentencing Hearing at 135 (Oct. 9, 

2013), Supplemental Appendix (“S.A.”) 228). The 

Government also appears to concede that “the record as a 

whole demonstrates that the judge considered [the sentencing 

manipulation] argument and nonetheless considered a 

guidelines sentence appropriate.” Id. at 37 n. 23. 

 Our review of the record reveals that Appellants Wallace 

and McKeever did not explicitly raise “sentencing 

entrapment” with the District Court. However, as the 

Government notes, the District Court appeared to understand 

that sentencing entrapment was an issue. Appellant Hopkins, 

on the other hand, did raise the issue. Nevertheless, the 

District Court’s statements leave it unclear what the court 

meant to do with the sentencing entrapment issue. 

Appellants were sentenced before the decision in Bigley

was issued. During this time – i.e., post-Booker, but preBigley – there may have been confusion as to whether this 

circuit’s pre-Booker case law on sentencing entrapment 

remained in effect. See Bigley, 786 F.3d at 16 (district court 

“may have thought it was prohibited, as a matter of law, from 

considering” sentencing entrapment); United States v. 
19 

Oliveras, 359 F. App’x 257, 261 n.5 (2d Cir. 2010) (“[T]he 

D.C. Circuit has strongly suggested that it would not 

recognize [the sentencing entrapment] doctrine.”); United 

States v. Beltran, 571 F.3d 1013, 1019 n.1 (10th Cir. 2009) 

(“The Sixth and D.C. Circuits categorically reject the doctrine 

of sentencing [entrapment] . . . .”). The Government does not 

dispute Appellants’ assertion that confusion over the state of 

the law existed at the time of their sentencing. 

During their joint sentencing hearing, it appears that 

Appellants Wallace and McKeever may have attempted to 

raise sentencing entrapment as a mitigation argument. The 

matter, however, is far from clear. In his sentencing 

memorandum, Appellant Wallace generally requested “a 

variance to account for all the mitigating circumstances of the 

case.” Wallace’s Sentencing Memorandum at 14, Joint 

Appendix (“J.A.”) 59. Then, at the sentencing hearing, 

Wallace’s counsel made arguments that referenced the fact 

that the officers were the ones who brought firearms to the 

scene: 

At that point when they first arrived there and they go 

into the storage – and they go into the car, into the 

officer’s car, and there’s a show of the guns . . . . An 

undercover officer gives you a gun, what are you 

supposed to – what are you supposed to do? 

Tr. of Joint Sentencing Hearing at 97, 102, S.A. 191, 196. 

McKeever’s counsel similarly made statements intended 

to distance his client from the police officers’ firearms. Id. at 

108, S.A. 202 (“McKeever doesn’t bring a weapon on April 

4th, and there’s no evidence that anyone else did . . . .”). The 

statements by McKeever’s counsel were undoubtedly vague, 

so they prove very little. And McKeever, unlike Wallace, did 
20 

not request a variance in his sentencing memorandum. We 

note, however, that Wallace and McKeever were sentenced at 

a joint hearing. And at oral argument, Wallace’s counsel 

noted that she and McKeever’s counsel had purposefully tried 

to avoid repeating themselves because the District Court was 

accepting one counsel’s argument to apply to both parties. 

Recording of Oral Argument at 15:24-43; see also United 

States v. Pardo, 636 F.2d 535, 541 (D.C. Cir. 1980) (“[I]n 

certain situations, it may be redundant and inefficient to 

require each defendant in a joint trial to stand up individually 

and make every objection to preserve each error for appeal.”); 

United States v. Love, 472 F.2d 490, 496 (5th Cir. 1973) 

(permitting defendant to rely upon a co-defendant’s argument 

where failure to do so would cause a “miscarriage of justice”). 

In addition – as the Government points out – the trial 

judge, when addressing Wallace, made statements suggesting 

that that she may have been aware of the sentencing 

entrapment issue: 

You know, I understand that this is created by the police, 

I clearly understand, and it’s for that reason, coupled with 

the fact that obviously you can’t exercise very sensible 

judgment, but that’s not an excuse for a crime. But I’m 

going to sentence consistent with the low end of the 

guidelines. 

Tr. of Joint Sentencing Hearing at 135, S.A. 229 (emphasis 

added). The Government argues that the trial court’s decision 

to “sentence consistent with the low end of the guidelines,” 

id., “demonstrates that the judge considered [the sentencing 

entrapment] argument and nonetheless considered a 

guidelines sentence appropriate.” Br. of Appellee at 37 n. 23. 

Neither the Government nor this court is in a position to 

confirm this assertion on the current record. 
21 

 The record with respect to Appellants Wallace and 

McKeever is a muddle and, thus, gives us no coherent 

grounds for resolving the sentencing entrapment issue. So far 

as we can tell, no one is really at fault here. The law was in 

flux, the Appellants were imprecise in advancing their claims, 

and it is unclear whether the District Court meant to reject 

Appellants’ requests for sentence variances or whether it 

simply failed to address the issue. In these circumstances, we 

will not search for error when we have at hand a simple 

solution that will better serve the ends of justice. As we noted 

at the outset of this opinion, when the sentencing record from 

the trial court is unclear, it is within the authority of the 

appellate court to remand the case to afford the trial judge an 

opportunity to address the issue in the first instance. See 

United States v. Saani, 650 F.3d at 771-72. We will therefore 

remand the sentencing entrapment claims raised by 

Appellants Wallace and McKeever. 

 We will also remand the matter relating to Appellant 

Hopkins because he clearly raised sentencing entrapment with 

the District Court. In his sentencing memorandum, Hopkins’ 

counsel argued that “the Court should grant a variance to 

account for all the mitigating circumstances of the case.” 

Hopkins’ Sentencing Memorandum at 10, J.A. 98. Then, at 

Hopkins’ sentencing hearing, counsel amplified, as follows: 

[T]he other significant thing in this case, it smells of . . . . 

Entrapment . . . . For that reason – although he is guilty 

. . . . there should be a modicum of mitigation in the 

sentence . . . . I mean, these were people who . . . couldn’t 

even get guns to commit the robbery. The police had to 

bring those to the table. And of course, they brought them 

to the table knowing that that would result in a greatly 

enhanced sentence . . . . So all that being said . . . this is a 
22 

case . . . warrant[ing] a downward departure based solely 

on the Court’s discretion to impose a sentence that is not 

[in]sufficient but not more than necessary. 

Tr. of Hopkins’ Sentencing Hearing at 9-11 (Dec. 12, 2013), 

S.A. 259-61. There is no question as to what Hopkins’ 

counsel was seeking on behalf of his client. Yet, the District 

Court never expressly addressed the issue. 

 The trial court was aware that police had brought the 

firearms. Id. at 13-14, S.A. 263-64 (“Admittedly, [Appellants] 

did not actually bring the firearms. The police did, or the 

undercovers.”). And the court indicated that it wanted to 

sentence Hopkins in the same manner that it was sentencing 

the other Appellants. Id. at 17, S.A. 267 (“I’m trying to be 

sort of fair and compare what I’ve done with the other people, 

considering your role here. I’m going to sentence [Hopkins] 

on Count 1 to [the low end of the Guidelines.]”). 

Unfortunately, we are unable to discern what the trial judge 

meant to say about sentencing entrapment. Therefore, the case 

must be remanded. See Locke, 664 F.3d at 357 (making it 

clear that the District Court must adequately explain the 

chosen sentence); Saani, 650 F.3d at 771-72 (“remand[ing] 

[defendant’s] case to the district court for resentencing solely 

because the record [wa]s unclear as to” what the district court 

had relied upon in issuing defendant’s sentence). 

D. Hopkins’ Remaining Arguments 

 Appellant Hopkins raises multiple additional arguments, 

both in Appellants’ joint brief as well as in a supplemental 

pro se brief. None of these arguments was raised before the 

District Court. Therefore, unless otherwise indicated below, 

we review these claims under the plain error standard. FED R.

CRIM. P. 51(b), 52(b); see Molina-Martinez v. United States, 
23 

136 S. Ct. 1338, 1343 (2016) (explaining the elements of 

plain error review). We find no merit in these claims. 

1. Manufactured Jurisdiction 

The Hobbs Act “punish[es] interference with interstate 

commerce by extortion, robbery or physical violence.” 

Stirone v. United States, 361 U.S. 212, 215 (1960) (citing 18 

U.S.C. § 1951(a)). Appellant Hopkins asserts that the 

Government impermissibly “manufactured” an interstate 

commerce nexus to come within the reach of the Hobbs Act. 

That is, he claims that the police purposefully manipulated the 

object of the conspiracy by inviting defendants in D.C. to 

engage in a plan to rob a store in Maryland. He argues, as 

follows: 

Appellant submits that the crime to which he pled 

guilty was a crime punishable in the District Court solely 

due to the falsehoods generated exclusively by the 

undercover agents. 

Had the sham liquor store been located on the other 

side of Southern Avenue, S.E., the government would 

have faced a challenge to its jurisdiction. Had the 

imaginary store not sold liquor, another interstate nexus

would have disappeared. And had the government 

targeted the imaginary store owner for robbery as he 

walked down the street, the government claim to 

interstate jurisdiction would have evaporated. 

The exclusively local offense of robbery was 

promoted into an interstate criminal effort based 

exclusively on the imaginary facts of the undercover 

operation. Moreover, these were not ad hoc falsehoods 
24 

that were made up as things went along. They were part 

of a plan to establish federal jurisdiction. 

When federal officers supply the interstate element 

to otherwise local offenses, reversal is required to 

maintain the fundamental integrity of the criminal justice 

system. United States v. Archer, 486 F.2d 670, 682 (2d 

Cir. 1973). 

Br. of Appellants at 37. 

 The parties disagree over the applicable standard of 

review. Hopkins acknowledges that he failed to raise this 

claim below, but argues that, under the law of the circuit, 

subject matter jurisdiction “involves a court’s power to hear a 

case [so] can never be forfeited or waived.” United States v. 

Delgado-Garcia, 374 F.3d 1337, 1341 (D.C. Cir. 2004) 

(citation omitted). The Government, on the other hand, 

attempts to distinguish a claim of “manufactured” jurisdiction 

from other subject matter jurisdiction arguments. This is an 

issue of first impression in this circuit. We need not resolve 

the question because Hopkins’ claim fails under any standard. 

The concept of manufactured jurisdiction originates from 

United States v. Archer, 486 F.2d 670 (2d Cir.), reh’g denied 

per curiam, 486 F.2d 683 (2d Cir. 1973). There, the Second 

Circuit refused to find jurisdiction under a federal act, where 

the government claimed that certain actions, completely 

unrelated to its undercover operation, created an interstate 

nexus. Id. at 681-83. Subsequent courts have generally 

“refused to follow Archer when there is any link between the 

federal [jurisdictional] element and a voluntary, affirmative 

act of the defendant.” Al-Cholan, 610 F.3d at 953 (alteration 

in original) (citation omitted). We followed this approach in 

United States v. Taplet, 776 F.3d 875 (D.C. Cir. 2015), a case 
25 

with facts similar to the facts here. In Taplet, we held that 

because “Taplet ‘freely participate[d]’ in the jurisdictional act, 

[he could not] claim that the government manufactured 

jurisdiction.” Id. at 882 (first alteration in original) (citation 

omitted). Here Hopkins “freely participated” in the plan to rob 

the liquor store, so there was a clear link between the federal 

jurisdictional element and Hopkins’ voluntary, affirmative 

acts. 

Hopkins points out that the purpose of the robbery was 

simply to strip the store owner of his assets. Br. of Appellants 

at 40-42 (citing cases for the proposition that robberies of 

private individuals do not affect commerce); Reply Br. of 

Appellants at 23. This is irrelevant, however. What matters is 

that Hopkins agreed to rob a store that was engaged in 

interstate commerce. He does not dispute this. Therefore, the 

action was covered by the Hobbs Act. See United States v. 

Harrington, 108 F.3d 1460, 1469-70 (D.C. Cir. 1997). In 

Harrington, which involved a robbery of a restaurant that 

engaged in interstate commerce, we explained: 

We do not rest our holding on the understanding that the 

defendant was “engaged in interstate commerce” when he 

participated in the robbery of the restaurant; rather, we 

rely on the undisputed fact that the restaurant was 

engaged in interstate commerce, and we hold that the 

Hobbs Act was properly applied here to protect that 

commerce by punishing its obstruction and delay through 

robbery. 

Id. (citation omitted). The same principle applies here. 

Therefore, we reject Appellant Hopkins’ claim of 

manufactured jurisdiction. 
26 

2. Due Process 

Hopkins argues that the police officers’ conduct in this 

case “was so shocking to due process values that the 

indictment must be dismissed.” Br. of Appellants at 38; 

accord Pro Se Supplemental Br. at 7. This claim is clearly 

without merit. 

The Supreme Court has recognized that there may be 

instances “in which the conduct of law enforcement agents is 

so outrageous that due process principles” are violated. 

United States v. Russell, 411 U.S. 423, 431-32 (1973). We 

have explained, however, that “such a level of outrageousness 

is not established by [just] showing ‘obnoxious behavior or 

even flagrant misconduct on the part of the police.’” United 

States v. Jenrette, 744 F.2d 817, 824 (D.C. Cir. 1984) 

(citation omitted). Rather, “a defendant must establish that the 

government had committed ‘coercion, violence, or brutality to 

the person.’” United States v. Hinds, 329 F.3d 184, 190 (D.C. 

Cir. 2003) (citation omitted). No such assertion has been 

made here. 

3. Hopkins’ Guilty Plea 

Hopkins contends that his guilty plea was invalid because 

there was no factual basis for the plea. In particular, he claims 

that there was no evidence that he intended to interfere with 

interstate commerce. He also claims that his Rule 11 colloquy 

was ineffective because he was not made aware that a Hobbs 

Act crime requires an effect on interstate commerce, nor was 

he made aware that a conspiracy requires an agreement with 

his co-conspirators, and not simply with the undercover police 

officers. 
27 

Federal Rule of Criminal Procedure 11 requires that, for a 

guilty plea to be valid, “the court must determine that there is 

a factual basis for the plea.” FED R. CRIM. P. 11(b)(3). A 

factual basis exists so long as the Government “proffer[s] 

‘evidence from which a reasonable juror could conclude that 

the defendant was guilty as charged.’” United States v. Ahn, 

231 F.3d 26, 31 (D.C. Cir. 2000) (citation omitted). In 

addition, the court must “inform the defendant of, and 

determine that the defendant understands,” “the nature of each 

charge to which the defendant is pleading.” FED R. CRIM. P.

11(b)(1)(G). However, 

Rule 11 “does not require that the district court spell out 

the elements of the charge in order to inform the 

defendant adequately.” Instead, a plea colloquy must, 

“based on the totality of the circumstances, lead a 

reasonable person to believe that the defendant 

understood the nature of the charge.” 

United States v. Moore, 703 F.3d 562, 569 (D.C. Cir. 2012) 

(citations omitted). 

 Here, there was a factual basis for the plea. There is no 

question that Hopkins agreed to the planned robbery of a 

liquor store, which was concededly engaged in interstate 

commerce. And, as other circuits have held, it does not matter 

whether the defendant specifically intended to affect interstate 

commerce. See, e.g., United States v. Powell, 693 F.3d 398, 

405 (3d Cir. 2012); United States v. Williams, 342 F.3d 350, 

354 (4th Cir. 2003). We agree. Accordingly, given the 

circumstances of this case, there was no plain error. 

 We also find no plain error in Hopkins’ Rule 11 colloquy. 

The District Court explained to Hopkins that the elements of 

the crime included “an agreement that existed between you 
28 

and at least one other person . . . to interfere with interstate 

commerce by robbery.” Tr. of Plea Hearing at 17 (Sept. 12, 

2013), S.A. 85. And it appeared that Hopkins understood the 

nature of the charge. Id. at 17-18, S.A. 85-86 (“[D]id you 

bring three other people to meet with the . . . undercover 

officers . . . . And [did] you c[o]me to an agreement with 

some of the people, or all of the people who were there, that 

there would be a robbery of a commercial store? THE 

DEFENDANT: Yes.”). 

4. Hopkins’ Sentence 

 

 Finally, Hopkins challenges his sentence, contending that 

the District Court failed to account for various “mitigating 

circumstances.” He also claims that his criminal history was 

improperly calculated, and that his counsel was 

constitutionally defective in failing to bring that 

miscalculation to the District Court’s attention. We have 

carefully reviewed these arguments and conclude that they are 

without merit and warrant no further discussion. 

III. CONCLUSION

We hereby vacate Appellants’ sentences and remand the 

case to the District Court for resentencing in accordance with 

this opinion. 

So ordered.