NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 09-4481

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UNITED STATES OF AMERICA

v.

MALIK SNELL,

 Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cr-00299-001)

District Judge: Hon. R. Barclay Surrick

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Submitted Under Third Circuit LAR 34.1(a)

June 22, 2011

Before: CHAGARES, JORDAN and GREENAWAY, JR., Circuit Judges.

(Filed: June 23, 2011 )

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Appellant Malik Snell (“Snell”), a former officer in the Philadelphia Police 

Department, appeals his conviction in the United States District Court for the Eastern 
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District of Pennsylvania for violations of 18 U.S.C. §§ 1951 and 924(c) stemming from 

his commission of two robberies. Snell also appeals the sentence of 360 months’ 

imprisonment imposed on him by the District Court. For the following reasons, we will 

affirm. 

I. Background

The first robbery at issue occurred on December 14, 2007. Around noon that day, 

Ricardo McKendrick, Jr., was driving in south Philadelphia and had with him a diaper 

bag containing $40,000 in illegal drug proceeds. As McKendrick made a turn, he heard a 

horn and noticed that a black car behind him had activated police-style lights. Believing 

he was being pulled over for a moving violation by a police officer in an unmarked car, 

McKendrick stopped his minivan on the side of the street. 

Snell, who was at the time a Philadelphia police officer, emerged from the black 

car wearing his full police uniform, which included a holstered gun. He approached 

McKendrick’s car, opened the door, pulled McKendrick out, and then handcuffed him

and patted him down. During the pat down, Snell took $130 out of McKendrick’s pocket 

and put it into his own. Snell also told McKendrick that federal agents had told him to 

stop McKendrick, and he asked whether McKendrick had any weapons or drugs in his 

car. McKendrick insisted that he had neither, but Snell proceeded to search 

McKendrick’s car while continuing to ask McKendrick about weapons and drugs. 
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After that initial search, Snell placed McKendrick in the backseat of Snell’s car 

without closing the door. Snell then returned to McKendrick’s car and resumed the 

search. He soon emerged with the diaper bag and placed it in the trunk of his car. 

Moments later, McKendrick overheard Snell on his cell phone relating these or 

similar words: “Yeah, I got it right here. We – I got him right here. Hurry up.” (Supp. 

App. at 24.) Hearing that, and noting Snell’s apparent disregard for police protocol, 

McKendrick began to fear for his safety and tried to flee. Snell blocked him and forced 

him back into the backseat. In forcibly detaining McKendrick, Snell used his right hand 

to push McKendrick while keeping his left hand on his waist near his holstered gun. 

After forcing McKendrick back into the backseat, Snell again searched 

McKendrick’s car. He then abruptly stopped searching, returned to his car, removed 

McKendrick from the backseat, and drove off at high speed.1

The second robbery for which Snell was convicted occurred two days later on 

December 16, 2007. Late that evening, Snell, his brother-in-law Tyree Aimes, and 

Stephen Gibson drove in Snell’s Dodge Durango to an apartment in Pottstown, 

Pennsylvania, where they had heard that approximately $10,000 in illegal drug proceeds

was stored. Snell had his personal firearm with him. 

 

 1 About an hour later, after a phone call from a bystander, the police arrived and 

released McKendrick from the handcuffs. McKendrick then reported his encounter with 

Snell and his having been robbed of $130, but he did not at that time report the $40,000 

being stolen, for fear of alerting the police to his drug dealing. 
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When the three men arrived at the Pottstown apartment, they saw two police cars 

parked at the apartment building. After driving past the building twice, Snell and his two 

accomplices proceeded to a nearby convenience store where they planned to wait until 

the police had left the vicinity. A few minutes later, they returned to the apartment and 

found that the police cars were gone. Aimes and Gibson then began searching for a back 

window through which they could enter the apartment that they believed contained the 

money. They were unsuccessful and returned to the Durango to inform Snell of that fact. 

In response, Snell told them to knock on the front door and, once it was opened, to enter 

the apartment and tie up the occupants. 

Aimes and Gibson returned to the front door and knocked twice. After the second 

knock, a male occupant opened the door, and Aimes immediately began fighting with 

him, while Gibson entered the apartment. Gibson found and tied up a female occupant, 

rummaged through her closet, and then left. Aimes and the male occupant eventually 

stopped fighting, and Aimes ran back to the Durango. 

Snell and Aimes circled the block in the Durango three times looking for Gibson

but sped away when the police arrived. The police pursued them at high speed for 

several minutes until the Durango crashed into a smaller vehicle and careened to a stop at 

the side of an intersection. From there, Snell and Aimes fled on foot. Snell was

apprehended a short while later after a K-9 officer and his dog tracked him to a small 

shed at a nearby residence. 
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After being taken into custody and advised of his Miranda rights, Snell told the 

Pottstown police officers that he was a Philadelphia police officer and had been carjacked 

and kidnapped. Once at the police station, Snell provided a detailed written statement to 

that effect. However, roughly two hours later, after seeing Aimes being escorted through 

the station by police, Snell retracted his statement and gave a new one. In his new 

statement, Snell recounted the evening’s events basically as described here, but he 

asserted that he had simply driven Aimes to Pottstown by request and was ignorant of the 

intended robbery. 

In May 2008, based on the Pottstown robbery, a grand jury indicted Snell, along 

with Aimes and Gibson, on one count of conspiracy to interfere with interstate commerce 

by robbery, in violation of 18 U.S.C. § 1951 (“Count One”); one count of attempted 

interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951 

(“Count Two”); one count of carrying a firearm during or in relation to a crime of 

violence, in violation of 18 U.S.C. § 924(c) (“Count Three”); and aiding and abetting, in 

violation of 18 U.S.C. § 2. Aimes and Gibson pled guilty to those charges, while Snell 

proceeded to trial. 

Snell’s first trial, in October 2008, ended in a mistrial after the jury failed to reach 

a verdict on any of the counts. A grand jury subsequently indicted Snell again on Counts 

One, Two, and Three and added new counts for violations of 18 U.S.C. § 1951 (“Count 

Four”) and 18 U.S.C. § 924(c) (“Count Five”) stemming from the McKendrick robbery. 

The grand jury also added one count of witness retaliation, in violation of 18 U.S.C. 
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§ 1513 (“Count Six”).2

In June 2009, Snell was tried again on Counts One through Four. During trial, the 

jury heard evidence of the McKendrick and Pottstown robberies as described above. At 

closing, in response to Snell’s contention that he had no knowledge of Aimes’s intent to 

commit the Pottstown robbery, the government argued: 

 Snell’s second trial, in March 2009, resulted in an acquittal on 

Counts Five and Six and a mistrial on the remaining counts. 

If you find that – that Malik Snell is guilty of Count Four[, i.e., the 

McKendrick robbery], I submit to you that’s very strong evidence that 

Malik Snell had the – had the knowledge and intent ... to steal[] drug 

proceeds [in the Pottstown robbery].

(App. 2 at 115.) Snell did not object. Ultimately, the jury returned a guilty verdict on all 

Counts. Snell did not move for a judgment of acquittal based on the sufficiency of the 

evidence or for a new trial.

In November 2009, at sentencing, the District Court adopted the Probation 

Office’s calculation of a total adjusted offense level of 34, which, with Snell falling 

within criminal history category I, resulted in an advisory Guidelines range for the 

robbery offenses of 151 to 188 months. Snell was also subject to a mandatory 

consecutive sentence of 60 months for the § 924(c) firearm offense. Combined, the 

effective Guidelines range was 211 to 248 months. 

Snell objected to the Guidelines calculation, arguing that it included a one-level 

enhancement based on McKendrick’s claimed loss of $40,000, which, despite the guilty 

 2 The basis for Count Six was not discussed in the parties’ submissions. 
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verdict, had not been proven. The District Court overruled that objection, explaining that 

the $40,000 loss need only be shown by a preponderance of the evidence and that 

McKendrick’s unrebutted testimony on that point was sufficient. 

The Court then proceeded to grant certain of the government’s motions for

adjustments to the Guidelines calculations, including a change from criminal history 

category I to category II, pursuant to U.S.S.G. § 4A1.3, to account for an underrepresentative criminal history score,

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Finally, the District Court granted the government’s motion for an upward 

variance and, after reviewing the § 3553(a) factors, imposed a sentence of 360 months. 

In explaining its sentence, the Court noted Snell’s Marine Corps service and past 

commendable police service but noted also that Snell had failed to acknowledge his

criminal actions, had perjured himself repeatedly, had damaged the reputation of the 

a two-level upward departure for institutional 

damage to the Philadelphia Police Department in connection with Snell’s wearing his 

police uniform during the McKendrick robbery, and a two-level upward departure for 

endangering public safety in connection with his flight from the Pottstown robbery. After 

the adjustments, Snell’s total offense level was 36 and his criminal history category was

II, which, in turn, when combined with the 60 months to be served consecutively for the 

§ 924(c) conviction, resulted in a Guidelines range of 270-322 months. 

 3 At Snell’s second and third trials, the government introduced evidence under 

Federal Rule of Evidence 404(b) regarding three other uncharged robberies of drug 

dealers that Snell either committed or planned. 
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Philadelphia Police Department, and had otherwise failed to acknowledge “the people 

that [he’d] hurt.”4

Snell timely appealed. 

(Supp. App. at 374.)

II. Standard of Review5

Snell raises several issues on appeal, some pertaining to the conduct of the trial 

and the sufficiency of the evidence to sustain the verdict, others pertaining to sentencing. 

More specifically, Snell argues that there was insufficient evidence to support his 

conviction for the McKendrick robbery and that he deserves a new trial on the 

McKendrick robbery charge because the verdict was against the weight of the evidence. 

He also seeks a new trial on all charges because of the alleged taint caused by the 

government’s statement at closing argument regarding the relationship between his 

commission of the McKendrick robbery and the Pottstown robbery. Regarding 

sentencing, Snell argues that the District Court erred in finding that McKendrick had 

been robbed of $40,000. He further asserts that 360 months’ imprisonment is a

substantively unreasonable sentence.

We review for plain error a claim for judgment of acquittal based on evidentiary 

challenges raised for the first time on appeal. United States v. Gordon, 290 F.3d 539, 

 4 One of the passengers of the vehicle into which Snell crashed at the end of his 

high-speed flight suffered several serious injuries and was left with a permanent limp. 

We infer that the District Court was referring, at least in part, to that passenger. 

5 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 28 U.S.C. § 1291.
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547 (3d Cir. 2002). We look for abuse of discretion when reviewing a denial of a motion 

for a new trial. United States v. Kelly, 539 F.3d 172, 181 (3d Cir. 2008). As to the 

District Court’s sentencing decision, we review for clear error the Court’s factual 

conclusions, United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007), and we review the 

sentence itself for substantive reasonableness, using an abuse-of-discretion standard. 

United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).

III. Discussion

A. Sufficiency of the Evidence of the McKendrick Robbery

“A conviction based on insufficient evidence is plain error only if the verdict 

constitutes a fundamental miscarriage of justice.” United States v. Thayer, 201 F.3d 214, 

219 (3d Cir. 1999) (internal quotation marks omitted). Put another way, a conviction is 

only plainly erroneous if the evidence supporting guilt is so clearly insufficient that “the 

trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s 

timely assistance in detecting it.” United States v. Castro, 776 F.2d 1118, 1129 (3d Cir. 

1985) (internal quotation marks omitted).

Here, Snell argues that the evidence does not show that he threatened or used force 

to steal money from McKendrick, as required by 18 U.S.C. § 1951(b)(1).6

 6 “Robbery” is defined, in pertinent part, as “the unlawful taking or obtaining of 

personal property from the person or in the presence of another, against his will, by 

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

his person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added).

 Rather, Snell 

contends, McKendrick was complying with the commands of an apparent authority figure 
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and so was not dispossessed of his money by force as contemplated by the statute. 

Among other things, however, Snell ignores the evidence of him handcuffing and 

forcibly detaining McKendrick. That evidence alone demonstrates Snell’s use of force in 

obtaining the money and so supports the conviction on Count Four. Thus, the District 

Court did not plainly err in allowing that conviction to stand.

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B. Appropriateness of a New Trial

Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, a district court 

may grant a new trial “‘[o]n a defendant’s motion.’” United States v. Wright, 363 F.3d 

237, 248 (3d Cir. 2004) (quoting FED. R. CRIM. P. 33). As a general matter, when a 

defendant fails to move for a new trial, the district court has no motion upon which to 

exercise its discretion, and we are left without an exercise of discretion to review. See id.

(noting that “we need not reach the merits of [appellant’s] argument ... [for] a new trial” 

because he failed to move for a new trial pursuant to Rule 33). That said, a trial court 

exercises discretion and is thus subject to review when it sua sponte orders a new trial or 

treats a motion for judgment of acquittal as a motion for a new trial. Id. at 248 n.4.

 7 Based on the flawed premise that the McKendrick robbery conviction was not 

supported by sufficient evidence, Snell also strangely argues that his conviction on Count 

Three for possessing a firearm in connection with the Pottstown robbery was likewise 

based on insufficient evidence. Snell appears to confuse the firearm possession charge in 

Count Three with the firearm possession charge in Count Five, which related to the 

McKendrick robbery and resulted in an acquittal. Since it obviously does not follow that 

a lack of force in the McKendrick robbery equates to not having possessed a firearm in 

connection with the Pottstown robbery, we reject his argument. 
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Here, Snell did not move for a new trial. Nor did he make a motion for judgment 

of acquittal that the District Court then treated as a motion for a new trial. Nor did the 

District Court sua sponte order a new trial. In short, the District Court had no occasion to 

exercise discretion with respect to the grant or denial of a new trial. Accordingly, there is 

nothing for us to review in that regard, and Snell’s claim that he should have been 

awarded a new trial fails.

C. The $40,000 Loss Calculation

Facts pertaining to Guidelines calculations need only be found by a preponderance 

of the evidence. Grier, 475 F.3d at 568. Here, there was unrebutted testimony that the 

diaper bag that Snell took from McKendrick contained $40,000. It was not clear error, 

then, for the District Court to find by a preponderance of the evidence that the amount of

loss in connection with the McKendrick robbery was $40,000. See Anderson v. City of 

Bessemer City, 470 U.S. 564, 575 (1985) (noting that it “can virtually never be clear 

error” for a court to base a finding on credible, coherent, facially plausible, 

uncontradicted, internally consistent testimony).

D. Substantive Reasonableness of Snell’s Sentence

A sentence is substantively reasonable “unless no reasonable sentencing court 

would have imposed the same sentence on that particular defendant for the reasons the 

district court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). On 

the record here, there is simply no basis for concluding that the sentence imposed by the 
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District Court was beyond what another sentencing court may have imposed. 

Accordingly, we find no error.

IV. Conclusion

For the foregoing reasons, we will affirm the judgment of conviction and the 

sentence.