USA v. Untarius Demont Alexander

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11743
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
UNTARIUS DEMONT ALEXANDER,
Defendant-Appellant.
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2 Opinion of the Court 22-11743
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cr-20224-MGC-1
____________________
Before J ORDAN, NEWSOM , and L AGOA , Circuit Judges.
PER CURIAM:
Untarius Demont Alexander appeals following his convic-
tions for conspiracy to commit Hobbs Act robbery (Count 1), at-
tempted Hobbs Act robbery (Count 2), and brandishing and dis-
charging a firearm in furtherance of a crime of violence (Count 3).
The government has moved for summary reversal, arguing that
we should vacate Alexander’s conviction and sentence as to Count
3—the count associated with Alexander’s attempted Hobbs Act
robbery. It also contends that we should vacate the district court’s
sentences as to the other two counts and order a de novo resentenc-
ing under the “sentencing-package” doctrine. We agree.
I
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case, or where,
as is more frequently the case, the appeal is frivolous.” Zhang v.
U.S. Att’y Gen., No. 21-14355, 2023 WL 3736046, at *1 (11th Cir.
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22-11743 Opinion of the Court 3
May 31, 2023) (quoting Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969)). We review de novo questions of statu-
tory interpretation. United States v. Garcon, 54 F.4th 1274, 1277
(11th Cir. 2022) (en banc).
In United States v. Davis, 139 S. Ct. 2319, 2324 (2019), the Su-
preme Court invalidated 18 U.S.C. § 924(c)(3)(B)’s residual clause,
which had defined a “crime of violence” as any crime that “by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of com-
mitting the offense,” as unconstitutionally vague under the due-
process and separation-of-powers principles. Id. at 2336.
Significantly, the Supreme Court decided United States v.
Taylor, 142 S. Ct. 2015 (2022), in June 2022, while Alexander’s ap-
peal was pending. In that case, Justice Gorsuch’s majority resolved
a circuit split and held that attempted Hobbs Act robbery did not
qualify as a predicate “crime of violence” under § 924(c)(3)(A)’s “el-
ements clause,” which “cover[ed] offenses that [had] as an element
the use, attempted use, or threatened use of physical force against
the person or property of another.” Taylor, 142 S. Ct. at 2019. At
the outset, the Court noted that, under the applicable categorical
approach, the facts of a particular defendant’s case were immaterial
because the “only relevant question [was] whether the federal fel-
ony at issue always require[d] the government to prove—beyond
a reasonable doubt, as an element of its case—the use, attempted
use, or threatened use of force.” Id. at 2020.
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4 Opinion of the Court 22-11743
The Court then explained that, to prove attempted Hobbs
Act robbery, the government must show that the defendant in-
tended to unlawfully take or obtain personal property by means of
actual or threatened force and completed a “substantial step” to-
ward that end. Id. Justice Gorsuch emphasized, however, that
while the government would have to show that the defendant took
an “unequivocal” and “significant” step towards committing rob-
bery, it need not show that the defendant actually used, attempted
to use, or even threatened to use force, as required by § 924(c). Id.
at 2020–21. And he stressed that “an intention to take property by
force or threat, along with a substantial step toward achieving that
object, . . . is just that, no more.” Id. at 2020. For example, a de-
fendant who was apprehended before reaching his robbery victim
could be convicted of attempted Hobbs Act robbery, even though
he has not yet engaged in threatening conduct, so long as the gov-
ernment had other evidence of his intent and a substantial step. Id.
at 2020–21. Therefore, the Court concluded that attempted Hobbs
Act robbery was not a “crime of violence” under the text of
§ 924(c)(3)(A). Id. at 2021.
Taylor further emphasized that the “elements clause does
not ask whether the defendant committed a crime of violence or
attempted to commit one,” but rather “asks whether the defendant
did commit a crime of violence.” Id. at 2022 (emphasis in original).
The Court concluded that, had Congress intended the elements
clause to encompass attempted crimes of violence, it could have
explicitly included attempt in its definition. Id. Ultimately, the Su-
preme Court affirmed the Fourth Circuit’s decision to reverse and
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22-11743 Opinion of the Court 5
remand Taylor’s enhanced sentence. Id. at 2019–20, 2025–26. In
so holding, Taylor rejected the government’s argument—which we
had adopted in United States v. St. Hubert, that because a completed
Hobbs Act robbery qualifies as a crime of violence, an attempted
Hobbs Act robbery must qualify as well. Taylor, 142 S. Ct. at 2021–
22 (citing United States v. St. Hubert, 909 F.3d 335, 352–53 (11th Cir.
2018)).
II
The “sentencing-package” doctrine is a judicial practice that
permits a district court to resentence a defendant on all counts of
conviction where one of the counts of conviction was vacated, ei-
ther through direct appeal or a § 2255 proceeding. United States v.
Fowler, 749 F.3d 1010, 1015–16 (11th Cir. 2014). “[W]hen a convic-
tion on one or more of the component counts is vacated for good,
the district court should be free to reconstruct the sentencing pack-
age . . . to ensure that the overall sentence remains consistent with
the guidelines, the § 3553(a) factors, and the court’s view concern-
ing the proper sentence in light of all the circumstances.” Id. At
resentencing, “[t]he sentence package that has been unpackaged by
a reversal is to be repackaged at resentencing using the guidelines
and the § 3553(a) factors.” Id. at 1016.
We have also recognized that it is “anomalous to reverse
some convictions and not others when all defendants suffer from
the same error.” See United States v. Gray, 626 F.2d 494, 497 (5th
Cir. 1980).
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6 Opinion of the Court 22-11743
III
Here, for the reasons the Supreme Court noted in Taylor,
the facts of Alexander’s individual case are immaterial, and the only
relevant question is whether attempted Hobbs Act robbery was
used as a predicate “crime of violence” under § 924(c)(3)(A)’s ele-
ments clause. Taylor, 142 S. Ct. at 2020–21. In Count 2 of the in-
dictment, Alexander was charged with attempted Hobbs Act rob-
bery, and the § 924(c) offense in Count 3 referenced Count 2 as the
associated predicate “crime of violence.” After Davis and Taylor,
attempted Hobbs Act robbery no longer qualifies as a “crime of vi-
olence,” either under the residual clause in § 924(c)(3)(B) or the el-
ements clause in § 924(c)(3)(A). See Taylor, 142 S. Ct. at 2020–21;
Davis, 139 S. Ct. at 2324, 2336. Moreover, the government has al-
ready acknowledged that a conviction of Alexander’s codefendant,
Hamilton, on that count was improper for the same reason, and
the district court then dismissed that count before sentencing him,
so it would be anomalous for us to not provide the district court an
opportunity to do the same in Alexander’s case. See Gray, 626 F.2d
at 497.
Importantly, the government correctly concedes that, under
Taylor, Alexander’s conviction and sentence for Count 3 is unlaw-
ful. Because one of the component counts should be vacated for
good, the district court should be free to reconstruct Alexander’s
sentence using the guidelines and the § 3553(a) factors so that it re-
mains proper in light of all the circumstances. Fowler, 749 F.3d at
1015–16. Therefore, because the government’s position is clearly
correct as a matter of law, we vacate Alexander’s conviction on
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22-11743 Opinion of the Court 7
Count 3 and remand for resentencing on the remaining counts.
Zhang, No. 21-14355 at *1.1
VACATED AND REMANDED.
1 Mr. Alexander filed a Motion for Summary Reversal and to Stay Briefing on
October 19, 2023. The relief he requests in that motion—that we summarily
vacate his Count 3 conviction and remand for de novo resentencing—is sub-
stantially provided by this opinion. The motion is thus denied as it is super-
seded by the present opinion.
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