United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2021 Decided June 15, 2021

No. 20-3021

UNITED STATES OF AMERICA,

APPELLEE

v.

GREGORY LASSITER, ALSO KNOWN AS G,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cr-00376-1)

Deborah A. Persico, appointed by the court, argued the 

cause and filed the briefs for appellant.

Kyle B. Grigel, pro hac vice, argued the cause for appellee. 

With him on the brief were Scott A. Meisler, Supervising 

Attorney, U.S. Department of Justice, and Elizabeth Trosman, 

Assistant U.S. Attorney.

Before: TATEL, Circuit Judge, and SILBERMAN and 

SENTELLE, Senior Circuit Judges.
2

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Gregory Lassiter pled guilty 

to multiple counts of conviction stemming from his role in a 

kidnapping and attempted murder. In 2009, the district court

sentenced Lassiter to 324 months imprisonment. In 2020, 

following a change in law, the court set aside one of Lassiter’s

judgments and resentenced him to 300 months. Lassiter appeals, 

arguing that the judge wrongly treated his original sentence as a

sentencing package and misapplied the sentencing guidelines. We 

disagree, and affirm.

I

A

In 2008, Gregory Lassiter plotted with Devro Hebron to rob 

and kill businessman Gregory Lyles. Hebron obtained a pistol and 

recruited his brother Devon Hebron, Darrin McCauley, David 

Cooper, and Ryan Wheeler to help. The six men lured Lyles from 

his businessto a townhome, where they beat and bound him. They 

then used his truck to drive him to a field, where they intended to 

kill him. McCauley started out driving Lyles’s truck, but got cold 

feet and fled. Cooper took over the driving of the truck. Devon 

Hebron followed in his van. 

At the field, Devon Hebron stayed in his vehicle while the 

other four took Lyles into the field to kill him. By this point, 

Wheeler was noticeably scared and nervous. At the field, where the 

group intended to killLyles, Lassiter orderedWheelerto shoot him. 

Wheeler refused. Lassiter grabbed the pistol and attempted to shoot 

Wheeler. The gun did not fire. Lassiter ordered Devro Hebron to 

fix the pistol. Devro tinkered with the pistol and tried to shoot

Lyles, but again the gun did not discharge. The would-be killers 
3

and victim got back in the cars and caravanned to a drugstore, 

where Devro bought a boxcutter. 

As they returned to the field, Lyles fought back by kicking

Cooper, who was still driving the truck. That forced the men to pull 

over. Lassiter slashed Lyles’s back with the boxcutter, then handed 

Cooper the cutter and ordered him to cut Lyles “as much as 

possible.” App. 107. Cooper then slashed Lyles. Although his 

attackers left him for dead, Lyles survived and contacted police. 

B

The United States obtained a nine-count indictment against the 

perpetrators. McCauley and Wheeler cooperated with the 

prosecution. Lassiter offered to cooperate too, and did provide the 

government with “generally candid and reliable information about 

the facts and circumstances surrounding” the kidnapping, but 

“[g]iven his criminal record and his role in th[e] offense, the 

government was simply unwilling to enter into a cooperation 

agreement.” App. 155.

Lassiter pled guilty to kidnapping, 18 U.S.C. § 1201(a), to

assault with intent to kill while armed, D.C. Code §§ 22-401, -4502, 

and to using a firearm during a crime of violence, 18 U.S.C. 

§ 924(c)(1)(A). Section 924(c) criminalizes the use or brandishing 

or discharging of a firearm in the course of committing a crime of 

violence. It functions essentially as a sentence enhancer. It 

prohibits “us[ing] or carr[ying]” a gun “during and in relation” to a 

“crime of violence,” or “possess[ing]” a gun “in furtherance of” a 

“crime of violence.” § 924(c)(1)(A). Section 924(c)(3) defines 

“crime of violence”: “an offense that is a felony” and either (A)

“has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another,” or (B) “by 

its nature, involves a substantial risk that physical force against the 

person or property of another may be used in the course of 
4

committing the offense.” Subsection (A) is known as the 

“elements” clause; subsection (B) is known as the “residual” 

clause. See United States v. Davis, 139 S. Ct. 2319, 2324 (2019).

Defendants convicted of § 924(c) face a mandatory minimum 

of five years imprisonment consecutive to any sentence for the 

underlying violent crime. See § 924(c)(1)(A)(i). If the defendant 

brandished or displayed a firearm, the mandatory minimum is 

raised to seven years. See § 924(c)(1)(A)(ii). If he actually 

discharges it, the mandatory minimum is raised to ten years. See

§ 924(c)(1)(A)(iii). “Brandish” means “to display all or part of the 

firearm, or otherwise make the presence of the firearm known to 

another person, in order to intimidate that person.” § 924(c)(4).

Section 924(c) is applicable to this case because the felony 

kidnapping count is a crime of violence under the residual clause 

of § 924(c). Because Lassiter brandished the gun by trying to shoot 

Wheeler, he faced a mandatory 84-month sentence over and above

his sentence for kidnapping.

Federal sentencing guidelines applicable to Lassiter’s 

kidnapping conviction recommend sentencing ranges accounting 

for a defendant’s criminal history and for a crime’s offense level.

The sentencing judge may vary from the range to guarantee a 

sentence “sufficient, but not greater than necessary.” See 18 U.S.C. 

§ 3553(a).

The presentence investigation by the probation office 

disclosed Lassiter’s considerable criminal history. The resulting 

presentence report (PSR) goes on for pages itemizing his myriad 

drug and property offenses. It also includes assaulting a woman 

with a lug wrench, indecently exposing himself, obstructing justice, 

driving with a suspended license, and recklessly endangering

others. In short, Lassiter had committed at least fifteen other crimes

and spent nearly half his life behind bars. 
5

Following Guidelines §§ 2A2.1, 2A4.1, and 3E1.1, the 

probation office calculated an offense level of 38 for the 

kidnapping: 41 because it involved an attempted first-degree 

murder causing life-threatening bodily injury, minus 3 because

Lassiter promptly pled guilty. 

Taken together, Lassiter’s criminal history and offense level 

yielded a sentencing range of 360 months to life imprisonment for 

the kidnapping count. The District of Columbia’s sentencing 

guidelines suggested 138 to 360 months imprisonment for the D.C. 

assault count. Adding the § 924(c) count’s mandatory 84

consecutive months meant a total range of 444 months to life 

imprisonment. 

The government proposed sentencing Lassiter within the total 

range because “[b]y any measure,” Lassiter was the codefendant 

“most deserving of jail time.” App. 154. Lassiter sought leniency, 

alleging that he suffered from untreated mental health problems

and specifically requesting “a variance” on the kidnapping count

“absorb[ing]the seven year mandatory that the Court must impose”

for the § 924(c) count. App. 287-88.

The court considered the prosecution and defense arguments. 

The judge agreed that Lassiter acted “the most violent[ly]” and “the 

most egregious[ly] of any of the defendants,” caused “the majority 

of Mr. Lyles’ most serious injuries,” and “very easily could have” 

also killed Wheeler. App. 291. The judge then sentenced Lassiter 

to only 324 months imprisonment, reflecting a substantial 

downward variance on the kidnapping count: just 240 months for 

kidnapping plus 138 concurrent months for D.C. assault and 84 

consecutive months for § 924(c). 

The judge emphasized the codefendants’ relative level of 

culpability during each sentencing. At Devro Hebron’s sentencing, 
6

for instance, the judge stressed his “responsibility” to “impose 

sentences *** proportionate to each other, taking into account the 

level of culpability of each defendant.” App. 230. The judge noted 

that Devro provided the weapons and helped Lassiter plan the 

crime. The judge sentenced Devro to 216 months imprisonment: 

132 months for kidnapping plus 84 consecutive months for 

§ 924(c). (Devro’s plea agreement with the United States dropped 

the D.C. assault charge.)

Reiterating his effort “to treat each of the defendants fairly, 

consistent with their involvement in the activities,” the district 

judge sentenced Cooper to 180 months imprisonment: 96 months 

for kidnapping plus 102 concurrent months for D.C. assault and 84 

consecutive months for § 924(c). App. 300. Although the judge

thought Cooper committed more significant conduct than Devro 

Hebron, the judge deemed him less culpable overall given Devro’s 

role in planning the crime. 

The judge sentenced Devon Hebron, who pled guilty to 

kidnapping, to 156 months imprisonment. Although the 

government offered Devon a cooperation agreement to further 

reduce his exposure, Devon refused to provide evidence 

incriminating his brother. 

The judge sentenced Wheeler and McCauley to 121 months 

imprisonment each: 37 months for kidnapping plus 84 consecutive 

months for § 924(c).Their lowersentences reflected theirrelatively 

smaller roles and their cooperation at the time of sentencing.

C

In 2019, the Supreme Court declared the residual clause of 

§ 924(c) unconstitutionally vague in United States v. Davis, 139 S. 

Ct. at 2336. Without the residual clause, kidnapping no longer met 
7

the definition of a “crime of violence.” Thus, Davis toppled the 

foundation for the various § 924(c) convictions in this case.

Wheeler, McCauley, Cooper, and Lassiter moved to set aside 

their § 924(c) convictions under 28 U.S.C. § 2255. The district 

court granted the motions, vacated the convictions, and resentenced 

each defendant.

By this time, Wheeler and McCauley were out of prison. The 

court simply wiped the § 924(c) convictions from their records.

Cooper’s resentencing came 134 months into his 180-month 

sentence. The judge noted that Cooper had served 134 months by 

December 2019, the month he was resentenced. The court observed 

that Cooper had achieved remarkable self-improvement that had 

rendered him “a poster child for post sentence rehabilitation.” App. 

506. The judge resentenced Cooper to time served.

Lassiter was a different story. Although he completed several 

educational programs in jail, he also racked up seven disciplinary 

infractions. 

At Lassiter’s 2020 resentencing, the judge found that he 

originally designed Lassiter’s sentence as a “sentencing package”:

a bundle of interdependent sentences as opposed to a string of 

independent sentences. The judge recalled that he “had in [his] 

mind a 324 month sentence based upon [Lassiter’s] history, [] 

background, [] prior convictions and [] conduct,” and that he “went 

all the way down to 240” months for kidnapping because he knew 

that he “was going to have to impose an 84 month consecutive 

sentence” for § 924(c). App. 514-15. That said, the judge praised

Lassiter’s participation in the prison’s educational programs. The

judge resentenced Lassiter to 300 months imprisonment. That

added 60 months to the kidnapping count and kept the same 138 

concurrent months for the D.C. assault count but reduced the total
8

sentence by 24 months “to motivate” Lassiter to continue “to 

participate in [educational] programs and to improve [him]self 

while in prison.” App. 517-18.

D

Although Lassiter did not object in the district court to his new 

sentence, he now appeals, arguing that the district judge wrongly 

recalled his original sentence as a sentencing package. Lassiter also 

argues that the updated PSR prepared for his resentencing

erroneously calculated the offense level for kidnapping.

Because Lassiter did not make either argument before the 

district court, we only review for plain error. Put differently, 

Lassiter must show an obvious error that affected his sentence. See

United States v. Saro, 24 F.3d 283, 286-88 (D.C. Cir. 1994).

II

We begin with Lassiter’s challenge to the district judge’s 2020 

finding that he designed a sentencing package back in 2009. Both 

sides agree that if the judge originally imposed a sentencing 

package, then he could maintain the original total after vacating the 

§ 924(c) conviction by increasing Lassiter’s kidnapping sentence. 

Conversely, if the judge originally imposed distinct kidnapping and 

§ 924(c) sentences without a view towards the ultimate total, then 

he could not alter Lassiter’s kidnapping sentence after setting aside 

the § 924(c) conviction. See Greenlaw v. United States, 554 U.S. 

237, 253-54 (2008). In other words, if the judge correctly identified

Lassiter’s original sentence as a package, then the judge had 

authority to resentence Lassiter to 300 months imprisonment. Yet 

if the judge mischaracterized Lassiter’s original sentence as a 

package after the fact, then Lassiter’s new sentence exceeded the 

judge’s resentencing authority.
9

Because the judge never actually used the words “sentencing 

package” at the original sentencing, Lassiter argues that the judge 

did not intend to impose a package sentence. We disagree.

Lassiter’s argument ignores the obvious. When initially

sentencing a defendant, a district judge has little reason to articulate

whether he tailored an interdependent bundle or strung together

independent counts. The judge’s approach matters only if it 

becomes necessary to resentence the defendant, something

impossible to know in advance. Simply put, it’s hardly revelatory

that this judge did not incant the magic “sentencing package” words

in 2009. Rather, we must consider the entire record of the original 

sentencing. 

A

One indicator of the sentencing judge’s intent is the

substantive relationship between the various counts. In United 

States v. Townsend, we generally observed the “strong likelihood” 

that “when a defendant is found guilty on a multicount indictment,

*** the district court will craft a disposition in which the sentences 

on the various counts form part of an overall plan.” 178 F.3d 558, 

567 (D.C. Cir. 1999) (quoting United States v. Davis, 112 F.3d 118, 

122 (3d Cir. 1997)). We also specifically noted that “[s]entences 

which include § 924(c) counts are particularly well suited to be 

treated as a package.” Id. The counts in such sentences are 

inherently interdependent, since “without the [underlying violent 

felony] conviction, there can be no § 924(c)(1) conviction.” United 

States v. Easterling, 157 F.3d 1220, 1223 (10th Cir. 1998).

Indeed, the Eleventh Circuit presumes in cases involving 

§ 924(c) “that sentences on each count of a multi-count indictment 

are part of a package that may, without a case specific inquiry, be 

revisited to ensure that the overall sentence on the surviving counts 

is consistent with the district court’s intentions.” United States v. 
10

Fowler, 749 F.3d 1010, 1017 (11th Cir. 2014). Relatedly, though 

not a holding, then-Judge Gorsuch described most circuits’

“typical[]” conclusion that a “‘§ 924(c) offense and the underlying 

offense are interdependent and result in an aggregate sentence, not 

sentences which may be treated discretely.’” United States v. Smith, 

756 F.3d 1179, 1189 (10th Cir. 2014) (quoting United States v. 

Mendoza, 118 F.3d 707, 710 (10th Cir. 1997) and collecting cases),

cited with approval in Dean v. United States, 137 S. Ct. 1170, 1176 

(2017).

B

In considering the question of the judge’s intent, we also ask

whether the sentence for the underlying violent felony varied from 

the guidelines range. For example, in United States v. Smith, the 

sentencing judge imposed several concurrent life sentences “for 

various drug distribution offenses, as well as a consecutive thirtyyear term of imprisonment under [] § 924(c).” 467 F.3d 785, 786 

(D.C. Cir. 2006). We concluded that the sentence wasn’t a package: 

because the judge imposed “the highest sentence available” for the 

underlying crimes, those sentences were “not ‘unravel[ed]’ by 

vacation of the” related § 924(c) sentence. Id. at 790 (alteration in 

original) (quoting Townsend, 178 F.3d at 562).

We reached the opposite conclusion in Townsend, not least 

because the original total “was the result of a downward departure”

on the underlying violent felonies. 178 F.3d at 569. Because “[t]he 

amount of downward departure allowed by a sentencing judge is 

inevitably affected by the total sentence imposed,” we concluded 

that “the departure *** imposed on the non-[§ ]924(c) counts was 

chosen in light of the [mandatory] term imposed on the § 924(c) 

counts.” Id. As we noted in Townsend, “[r]equiring a sentencing 

judge to retain the full downward departure originally allowed on a 

given count even when convictions on other counts are vacated 

could well make judges hesitant to give generous downward 
11

departures in the first instance.” Id. By extension, “where the 

district court is sentencing outside the guidelines range, it is 

particularly important that the district court have discretion to 

reevaluate the entire sentencing package.” Id. (quoting United 

States v. Watkins, 147 F.3d 1294, 1297 (11th Cir. 1998)). As thenJudge Gorsuch noted in United States v. Smith, “court after court” 

has concluded “that district courts may and should consider 

§ 924(c) sentences when sentencing for related crimes.” 756 F.3d 

at 1188.

C

As the Eleventh Circuit has held, it is appropriate to presume

that a district judge intended a sentencing package. Logically, this 

should be especially true when the judge imposed a belowguidelines sentence for the violent felony.

Lassiter fails to rebut that reasonable proposition. When 

pressed to explain why else the district judge would slice ten years 

off the bottom of Lassiter’s kidnapping guidelines range, Lassiter 

offered two theories: his offer to cooperate with authorities and his 

mental health issues. Yet the judge never acknowledged Lassiter’s 

offer to cooperate at the sentencing hearing, an offer that the 

government spurned in all events. Although the judge did bring up 

Lassiter’s clear and “very upsetting” mental health problems, he 

did so to guarantee that the Bureau of Prisons would “make sure 

that [Lassiter would] get the treatment that [he] need[ed].” App. 

292-93. Neither theory comes close to explaining the 33% discount

on Lassiter’s kidnapping count, a variance especially striking given 

Lassiter’s concededly “egregious” criminal conduct. See Oral 

Argument at 7:53–8:02.

If anything, the record from the 2009 sentencing supports the 

district judge’s 2020 finding that he originally intended a 

sentencing package. The judge emphasized the need to craft a 
12

singular “sentence *** to reflect the seriousness of the offense, *** 

to promote respect for the law, *** to provide just punishment[,] 

**** and to deter future criminal conduct.” App. 292-93. The judge

also acknowledged that he could not approach the kidnapping 

sentence in a vacuum, describing the guidelines recommendation 

as “only one factor” for a just sentence. App. 291.

Lassiter selectively quotes the district judge at other stages of 

the proceedings to argue that the judge only intended proportionate

sentences on the kidnapping counts. Yet those sliced-and-diced 

statements cannot negate the actual sentencesimposed, which look 

proportionate as packages. For example, the judge gave Devro 

Hebron (the second most culpable) 132 months for kidnapping 

despite giving Devon Hebron (the least culpable) 156 months on 

the same charge. Yet in total, Devro received 216 months and 

Devon received 156 months—exactly what one might expect given 

their relative culpability. The same goes for Cooper. He was more 

culpable than Devon and received a higher total sentence (180

months to Devon’s 156) but a lesser kidnapping sentence (96 

months to Devon’s 156).

Indeed, the judge’s comments at the codefendants’ 

sentencings make it crystal clear that the judge parceled these 

sentences out as total packages. See, e.g., App. 268 (using Devro 

Hebron’s “total” sentence to assess “proportionality”); App. 333 

(highlighting Cooper’s “overall sentence”). Especially on plain 

error review, we will not stretch this record to fit Lassiter’s 

counterintuitive construction.

Lassiter also makes much of the PSR’s passing reference to

Guidelines § 2A4.1(b)(3), which increases the kidnapping offense 

level by two “[i]f a dangerous weapon was used.” It is true that 

enhancement risks “double counting” if applied because of 

Lassiter’s firearm use, that is the § 924(c) sentence already 

addresses that conduct. Guidelines § 2K2.4 cmt. background.
13

However, the PSR traced this enhancement to Lassiter’s boxcutter 

use. Anyways, this is beside the point: because § 2A4.1(b)(7) 

prescribed substituting the kidnapping offense level with the higher 

offense level for attempted first-degree murder causing lifethreatening bodily injury, the district judge never actually applied 

§ 2A4.1(b)(3).

Finally, Lassiter compares his resentencing to McCauley, 

Wheeler, and Cooper’s resentencings, noting that the district judge 

carved off their § 924(c) sentences without modifying their 

kidnapping sentences. Even if Cooper, McCauley, and Wheeler’s 

new sentences reveal anything about Lassiter’s original sentence,

they don’t undermine the judge’s finding that he originally intended 

a package, for them or for Lassiter. Cf. Pepper v. United States, 562 

U.S. 476, 490 (2011) (permitting district courts to consider postsentence rehabilitation when resentencing defendants). By their 

resentencings, McCauley and Wheeler were already released, so 

they had no remaining prison term to modify. Likewise, Cooper’s

exceptional “level of rehabilitation” justified reducing hissentence 

to time served. App. 506.

* * *

All told, Lassiter fails to show that the district judge obviously 

erred at resentencing by characterizing Lassiter’s original sentence 

as an aggregate package. To the extent Lassiter separately argues 

that the district judge erroneously overlooked Lassiter’s request for 

a lower sentence reflecting his alleged rehabilitation, the argument 

runs aground on the record: the district judge did “consider[]” 

Lassiter’s “progress” before imposing the new sentence. App. 518.

III

Lassiter’s challenge to his kidnapping offense level also fails. 

Recall that Lassiter participated in three attempted murders during 
14

the kidnapping: shooting Wheeler with the broken gun, shooting 

Lyles with the broken gun, and slashing Lyles with the boxcutter. 

As a result, even though Lassiter pled guilty to kidnapping, a 

specific provision in the kidnapping sentencing guideline, 

§ 2A4.1(b)(7), required that the guideline for attempted murder, 

§ 2A2.1, controlled Lassiter’s offense level. Lassiter claimsthat the 

updated PSR prepared for resentencing misapplied

§ 2A2.1(b)(1)(A), a four-level enhancement for causing “lifethreatening bodily injury” during an attempted murder.

The original PSR applied § 2A2.1(b)(1)(A) without 

specifying which attempted murder caused the bodily injury. By 

contrast, the updated PSR tied § 2A2.1(b)(1)(A) to the attempted 

shootings. Lassiter argues that applying § 2A2.1(b)(1)(A) based on

the attempted shootings rather than the boxcutter slashing 

constituted plain error because no one sustained injuries from the 

broken gun.

Lassiter’s attempt to show plain error fails twice over. First, 

he cannot claim that the updated PSR’s factual basis for 

§ 2A2.1(b)(1)(A) affected his sentence: elsewhere in both the 

original and the updated PSR, Lassiter “agreed that there was a lifethreatening bodily injury,” and “therefore, four levels are added

[under] USSG §2A2.1(b)(1).” App. 537-38, 572; accord App. 280.

Second, and in all events, there was no error. Put simply, the 

issue is not what the PSR said, but rather what the district judge did. 

The record settles that the judge based § 2A2.1(b)(1)(A) on the 

boxcutter slashing, not on the attempted shootings.

At Lassiter’s original sentencing, the district judge causally 

connectedLyles’s bodily injuries with the boxcutter slashing: “You 

tried to shoot Mr. Lyles, you tried to shoot Mr. Wheeler, you were 

with the box cutter, responsible for the majority of Mr. Lyles’ most 

serious injuries.” App. 291. That connection comports with context 
15

from the original PSR: although the paragraph applying

§ 2A2.1(b)(1)(A) didn’t specify a factual basis for the 

enhancement, the immediately preceding paragraph applied a 

different enhancement based on the boxcutter slashing. It’s also 

consistent with the judge’s remarks at the codefendants’ 

sentencings. See, e.g., App. 204-05 (connecting the “lifethreatening bodily injury” with the “box cutter” at Devon Hebron’s 

sentencing).

At Lassiter’s resentencing, the sentencing judge incorporated 

his guidelines analysis (including the offense-level calculation) 

from the original sentencing. Indeed, the judge only mentioned the 

updated PSR in passing. The judge did, however, reconnect the 

boxcutter slashing with Lyles’s bodily injuries:

[You t]ried to shoot one of your co-conspirators in 

crime, tried to kill Mr. Lyles and the gun didn’t 

work. You went and got a box cutter and used it. 

**** And Mr. Lyles lay there in the back of the car 

bleeding with all of these cuts all over his body 

pretending to be dead. I remember him being here 

in Court on numerous occasions during status 

conferences and other proceedings, it’s amazing 

that he was alive.

App. 514. 

Given the district judge’s statements from Lassiter’s original 

sentencing and echoed at Lassiter’s resentencing, we conclude that

the district judge applied § 2A2.1(b)(1)(A) based on the boxcutter 

slashing, not on the attempted shootings.
16

CONCLUSION

In sum, Lassiter fails to rebut our presumption that the district 

judge intended a sentencing package, and the record refutes his 

challenge to his kidnapping offense level. We will affirm the 

district court’s sentence.

For the reasons set forth above, we conclude that Lassiter has 

not only failed to show clear error, he has shown no error at all. The 

judgment of the district court is 

Affirmed.