United States of America v. William Valentin

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2639
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UNITED STATES OF AMERICA,
v.
WILLIAM VALENTIN,
Appellant
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On Appeal from the United States District Court
For the District of New Jersey
(D.C. No. 2-18-cr-0403-001)
District Judge: Honorable Madeline C. Arleo
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Argued
November 29, 2023
Before: JORDAN, MONTGOMERY-REEVES, and
McKEE,
Circuit Judges
(Filed: October 7, 2024)
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Anthony J. Pope [ARGUED]
The Pope & Hascup Law Group
60 Park Place – Suite 1101
Newark, NJ 07102
Annette Verdesco [ARGUED]
Caruso Smith & Picinni
60 Route 46 E
Fairfield, NJ 07004
Counsel for Appellant
Mark E. Coyne
John F. Romano
Office of United States Attorney
970 Broad Street Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
William Valentin, along with four other men, robbed a
jewelry store in New Jersey. During the robbery, Valentin
pointed a loaded gun at a store employee. In the course of
preparing for the crime and then carrying it out, stealing nearly
$900,000 in jewelry, the robbers left behind a mountain of
evidence: video footage, fingerprints, identifiable DNA, cell
phone records, location data, and more. A jury convicted
Valentin of Hobbs Act robbery, conspiracy to commit Hobbs
Act robbery, use of a firearm during a crime of violence, and

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conspiracy to use a firearm during a crime of violence. The
District Court then sentenced him to a term of imprisonment
within the applicable sentencing guidelines range. On appeal,
Valentin raises a series of challenges to the convictions and
sentence. We will affirm and take the occasion to clarify that
brandishing a firearm during a robbery is itself a crime of
violence under the guidelines.
I. BACKGROUND
A. Facts
In September 2017, Valentin, along with Carlos
Velasquez and two other men, crashed through a security gate
and robbed Elegant Creations, a jewelry store in the Jersey
Gardens Mall in Elizabeth, New Jersey. Valentin, wearing a
Mets cap, pointed a loaded gun with an extended magazine at
a store employee who fled the scene, screaming and “scared”
that she was “gonna die.” (Supp. App. at 73.) After filling
bags with jewelry, watches, and, among other custom items, a
Yankees pendant, the men escaped through another store and
met Jonathan Arce, Valentin’s cousin, who was waiting in a
getaway car.
Velasquez, who became a government witness, testified
at trial that Valentin had planned the details of the robbery and
recruited him to participate with “a few other people[,]” and
that Arce procured the getaway car – a black Audi with tinted
windows. (Supp. App. at 400.) He further testified that, a
week before the robbery, the group conducted a “dry run” and
drove the Audi to the mall parking lot, leaving their phones in
Newark, New Jersey. (Supp. App. at 405.) On the day of the
robbery, the men drove the Audi to a tire shop, where they

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changed a flat tire and put a stolen license plate on top of the
car’s real plate. During the robbery, the men left their phones
in their cars and used burner phones to call lookouts on the
highway and at the mall to ensure favorable conditions for the
plan.
Following the robbery, Arce wiped the car down to
remove fingerprints, and he and Valentin attempted to use a
heat gun to remove the tint from the windows, which left
behind a glue residue. That evening, Valentin paid Velasquez
$10,000 in cash for his role in the robbery.
The police soon located the abandoned Audi in Newark.
The real license plate was visible, the windows were sticky
because of the attempted tint removal, and Arce’s fingerprints
and DNA were present. They also recovered pieces of the
broken license plate frame. Video footage from the tire shop
showed the men at the shop, wearing the same clothes they
wore during the robbery and adding a license plate to an Audi
with tinted windows.
About a week after the robbery, the police received a
phone call identifying Valentin, Arce, and Velasquez as
suspects. That same day, the Elizabeth Police Department
contacted the Essex County Prosecutor’s Office because,
coincidentally, two Essex County detectives, Robert O’Neil
and Christopher Smith, had interviewed Arce a few weeks
earlier during an unrelated investigation. When shown video
footage from the mall and tire store, both officers identified
Arce, due to their previous interrogation of him, as the man
wearing the Mets hat, although Detective Smith was only 75
percent certain.

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Two days later, a multijurisdictional team of law
enforcement officials detained Arce as he boarded a plane at
Newark Airport.1 After detaining him, they showed still
photographs of the robbery suspect to Valentin and Arce’s
cousin Ashley Arce, who is a Newark police officer (and whom
we will refer to as “Officer Arce” to distinguish her from her
cousin Jonathan Arce, whom we have been calling “Arce”).
She identified the robbery suspect as Valentin. A week later,
Officer Arce sat for an interview with Elizabeth detectives.
During that interview, she reviewed photographs of Arce and
Valentin that were unrelated to the robbery and reviewed still
images from the tire shop footage. When reviewing the
unrelated photographs, Officer Arce identified a man wearing
a green hat, gray Nike shirt, black pants, and white sneakers as
Arce, and a man wearing a dark hat, black shirt, jeans, and dark
shoes as Valentin. When viewing stills from the tire shop
footage, Officer Arce identified the man wearing the Mets hat
as Valentin. She recognized Valentin from “the ears, and the
nose, and the eyes, … [and] the body.” (Supp. App. at 248.)
When asked how she knew both men, she noted that she had
seen them both “thousands of times”2 because both are her
cousins. (Supp. App. at 192.)
The Elizabeth Police issued complaints against Valentin
and Velasquez before the United States took over prosecution
of the crimes. Federal agents arrested Velasquez soon after,
1 Police expected to find both Arce and Valentin at the
airport flying to the Dominican Republic on a family vacation.
2 Officer Arce later testified that this number was
“between 50 and 100 times[.]” (Supp. App. at 192.)

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and he entered into a plea agreement with the government,
agreeing to testify against Valentin. In January 2018, Valentin
was arrested. At that time, he had in his possession a bag
containing $15,000 in cash and nine pieces of stolen jewelry –
including the custom Yankees pendant and a piece with an
Elegant Creations’ tag. Valentin’s phone also contained text
messages in which he asked for money for a bracelet and stated
that he may “have to go to jail.” (Supp. App. at 666.)
B. Procedural History
In February 2018, the government filed a superseding
indictment in the District of New Jersey charging Valentin with
four counts: (1) conspiracy to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a); (2) Hobbs Act robbery, in
violation of 18 U.S.C. §§ 1951(a) and 2; (3) use of a firearm
during and in relation to a crime of violence, in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii) and 2; and (4) conspiracy to use a
firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(o). The case went to trial but
resulted in a mistrial.3
A year later, the government retried Valentin. During
the seven-day trial, the jury heard testimony from the jewelry
store employee, from several law enforcement and expert
witnesses, and from Velasquez and Officer Ashley Arce. The
latter two identified Valentin as the man in the Mets hat who
3 The government initially tried Valentin and Arce
together; however, the jury acquitted Arce of all counts and
failed to reach a verdict as to Valentin, so the District Court
declared a mistrial.

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brandished a gun at the employee. The jury also saw
surveillance footage from the mall and tire shop and heard
testimony about the jewelry that police found on Valentin at
the time of his arrest and also about the incriminating text
messages. Additional evidence was presented, including
traffic tickets, rental car agreements, license plate reader
information, telephone records, seized jewelry, and biometric
data, all of which corroborated Velasquez’s testimony. After
less than a day of deliberations, and despite hearing that no
fingerprints or DNA retrieved from the crime scene or getaway
car matched Valentin’s, the jury found Valentin guilty on all
counts.
The District Court sentenced him as a career offender
and calculated the applicable sentencing guidelines range as
360 months’ to life imprisonment. In light of the
“overwhelming evidence” of guilt, the “very serious” nature of
the offense, Valentin’s “atrocious” criminal record, resulting in
a 54-point criminal history score, and his history of
“unnecessary, unwarranted violence,” the Court determined
that “[t]here [wa]s no basis here for a [downward] variance,”
“not at all, not even close.” (Supp. App. at 1150-58.) Valentin
did not object to the stated basis for the sentence, and the Court
imposed a within-guidelines sentence of 360 months’
imprisonment, 5 years’ supervised release, and $889,844.33 in
restitution. Valentin has timely appealed.4
4 We earlier granted the government’s motion for a
partial remand to address a conflict-of-interest issue with
appellate counsel, which the District Court resolved. The
matter is now properly before us for a decision on the merits.

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II. DISCUSSION5
Valentin mounts several challenges to his conviction
and sentence. First, he argues that the District Court abused its
discretion when it admitted certain non-eyewitness
identification testimony but excluded other similar testimony,
and when it also admitted evidence of a prior criminal
relationship between him and Velasquez. Second, he contends
that two of the Court’s jury instructions were plainly
erroneous. And third, he attacks the reasonableness of his
sentence, as well as the District Court’s finding that
brandishing a firearm qualifies as a crime of violence under the
sentencing guidelines. We are unpersuaded by those
arguments, and, for the reasons that follow, will affirm the
convictions and sentence in their entirety.
A. Trial Challenges
Valentin says that he “received an unfair trial.”
(Opening Br. at 2.) It appears, however, that he is simply
unhappy with the result. He was caught red-handed following
a robbery and the evidence presented against him at trial was,
as the District Court observed, “really overwhelming.” (Supp.
App. at 1153.)
5 The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).

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1. Identification Testimony Challenges6
Valentin takes particular issue with the District Court’s
decisions to both admit Officer Arce’s testimony identifying
him as the man in the Mets cap in surveillance footage and then
to exclude the Essex County detectives’ identification of his
cousin Jonathan Arce as that same man. According to
Valentin, the “inconsistent rulings” violated his “Sixth
Amendment right to put on [a] defense.” (Opening Br. at 7, 8.)
But admission or exclusion of such lay opinion testimony will
not typically give rise to a constitutional challenge. Orie v.
Sec’y Pa. Dep’t of Corr., 940 F.3d 845, 854-55 (3d Cir. 2019)
(“The Sixth Amendment’s Compulsory Process Clause does
not give a defendant the right to introduce any testimony []he
likes. Courts may exclude … inadmissible testimony under the
rules of evidence.” (citation omitted) (citing Taylor v. Illinois,
484 U.S. 400, 410 (1988))). Even assuming that the District
Court abused its discretion, though, those errors do not warrant
reversal.
First, Valentin challenges the admission of Officer
Arce’s testimony as improper because she “had not seen
Valentin in over a decade.” (Opening Br. at 20.) The District
Court was unconvinced by that she’s-a-stranger argument. It
admitted the testimony under Federal Rule of Evidence 701
because, as Valentin’s cousin, who had seen him more than
6 We review evidentiary rulings for abuse of discretion.
United States v. Desu, 23 F.4th 224, 233 (3d Cir. 2022). Even
if there is error, “the [District] Court’s ruling will stand if the
error was harmless … .” United States v. Christie, 624 F.3d
558, 567 (3d Cir. 2010) (citation omitted).

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fifty times in her life, “the witness … had sufficient contact
with the defendant to achieve a level of familiarity that renders
the lay opinion helpful.” United States v. Fulton, 837 F.3d 281,
297 (3d Cir. 2016) (internal quotation marks omitted) (listing
as indications of helpfulness of lay witness identification
testimony, among other things, “whether the witness knew the
defendant over time and in a variety of circumstances, such that
the … testimony offered to the jury a perspective it could not
acquire in its limited exposure to the defendant” (internal
quotation marks omitted)). Officer Arce specifically
recognized Valentin from his “ears, ... nose, ... eyes, … [and] ...
body.” (Supp. App. at 248.) While Arce’s subsequent
identifications of Valentin at the police station were due to
Valentin wearing similar clothing as the robbery suspect in
later photographs, they merely corroborated her earlier
identification based on her personal knowledge of Valentin’s
appearance. Fulton, 837 F.3d at 298. So, if Valentin’s
arguments in this vein were all that were at issue here, we
would be inclined to uphold the District Court’s evidentiary
decision as being within the Court’s discretion. But there is
more.
Like our concurring colleague, we are concerned with
the coercion surrounding Officer Arce’s identifications. The
threats to her job as a police officer – both directly and
indirectly – undermine the reliability of her identifications. Cf.
Fed. R. Evid. 701(a) (limiting lay testimony to “one that is
rationally based on the witness’s perception” (cleaned up)).
Her own testimony supports that conclusion. (Supp. App. 249
(“I thought I was going to lose my job. ... I was just scared that
if I didn’t basically say what I said in the airport [identifying
Valentin] that I was going to be in trouble.”).) And, at trial,
Officer Arce did not definitively identify the man in the

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photographs as Valentin. (Supp. App. at 264 (Q: “[A]s you sit
here today, are you sure that that was William Valentin in those
photos?” A: “No.”).) Thus, there is sound reason to question
the admission of the identification testimony from Officer
Arce.
We need not, however, decide that issue because, if
there was error, it was harmless, given the other evidence of
Valentin’s guilt. As already described, that evidence was
overwhelming7 and the identification testimony at trial, such as
it was, was lackluster. Cf. United States v. Auernheimer, 748
F.3d 525, 539 (3d Cir. 2014) (“In order for an error to be
harmless, the Government must prove beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.” (internal quotation marks omitted)).
Similarly, the District Court’s exclusion of the Essex
County detectives’ testimony, assuming error, was harmless
because “it is highly probable that the error did not affect the
result.” United States v. DeMuro, 677 F.3d 550, 557 (3d Cir.
2012) (internal quotation marks omitted). In making that
determination, “we must assess the impact of the error in
context with all of the evidence of [Valentin]’s guilt[,]” which
is “particularly damning.” Fulton, 837 F.3d at 301. And
“[u]nder the ‘highly probable’ standard … there is no need to
disprove every reasonable possibility of prejudice. While the
7 As a reminder, such additional evidence included
multiple surveillance videos, eyewitness testimony from the
employee of the jewelry store, Velazquez’s testimony
regarding the entire conspiracy, phone records, text messages,
traffic tickets, the black Audi, and more.

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Government bears the burden of showing that the error was
harmless, we can affirm for any reason supported by the
record.” United States v. Cross, 308 F.3d 308, 326 (3d Cir.
2002) (cleaned up). Although the detectives’ testimony would
have told the jury that Arce – not Valentin – was the man in the
Mets hat, that would not have erased from the jury’s memory
the overwhelming corroborating evidence of Valentin’s guilt,
including that he was arrested with $15,000 in cash and nine
pieces of stolen jewelry, among which was a bracelet with an
Elegant Creations’ tag and the custom Yankees pendant.8
The District Court’s evidentiary rulings thus survive
harmless error analysis, even if they were erroneous. Fulton,
837 F.3d at 301 (affirming the district court’s admission of
erroneous identification testimony by detectives due to other
evidence tying defendant to a robbery).
2. Conspiracy Evidence Challenge9
Valentin also argues that the District Court erred in
admitting communications between him and Velazquez
regarding prior criminal pursuits to show a conspiratorial
relationship between the men. Valentin’s argument relies
primarily on the fact that the Court had ruled such evidence
inadmissible in the first trial as “unduly prejudicial[.]”
(Opening Br. at 34.) But “a retrial of a case is exactly what it
says; it is a retrial, not a replay. A district court retains the
8 See supra note 7.
9 We review evidentiary rulings for abuse of discretion.
Desu, 23 F.4th at 233.

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power to reconsider previously decided issues as they arise in
the context of a new trial.” United States v. Cunningham, 679
F.3d 355, 377 (6th Cir. 2012) (internal quotation marks omitted
and emphasis in original).
Moreover, assuming that the District Court erred,
admitting those communications was harmless. Once more,
the evidence of Valentin’s guilt “was really overwhelming,”
and the testimony about the conspiratorial relationship was
brief and, later, was barely alluded to during the government’s
closing argument. (Supp. App. at 1153.) Because “the
government did not rely on [the communications between
Valentin and Velasquez] in its summation, stressing instead the
mountain of [other] evidence[,]” United States v. Anderskow,
88 F.3d 245, 251 (3d Cir. 1996), there is no realistic probability
that the elimination of the challenged testimony would have
changed the verdict.10
3. Jury Instructions Challenges11
Valentin complains of two jury instructions given by the
District Court. First, he argues that an aiding-and-abetting
10 The Court gave a limiting instruction to the jury to
“consider this evidence only for the purpose of deciding
whether the Defendant William Valentin and Carlos Velazquez
had a relationship such that Carlos Velazquez was invited to
join the conspiracy. Do not consider the evidence for any other
purpose.” (Supp. App. at 909.)
11 Typically, “[w]here the challenge to a jury instruction
is a challenge to the instruction’s statement of the legal
standard, we exercise plenary review. Otherwise, we review

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instruction, later stricken, tainted the verdict. And second, he
argues that the Court failed to instruct the jury on the definition
of “physical force,” which may have led the jury to convict him
for brandishing a firearm during a crime of violence, despite
inadequate evidence of force. Neither instruction was infirm
but, even if they were, they did not change the outcome.
First, Valentin did not object to the curative instruction
striking the aiding-and-abetting instruction. The Court told the
jury “to disregard” the initial instruction and to “not [] consider
that charge in rendering your verdict and in your
deliberations.” (Supp. App. at 954.) The jury instruction book
was also amended. Thus, it is not clear that Valentin has any
real basis for his present objection. Cf. United States v.
Pungitore, 910 F.2d 1084, 1128 (3d Cir. 1990) (“Inasmuch as
appellants did not object to the curative instruction or request
additional instructions, they apparently were satisfied with the
district court’s response and cannot now complain.”).
Assuming error, however, Valentin bears the burden of
showing that, under the plain error standard, the supposed
misstep affected his “substantial rights,” or that there is “a
reasonable probability that, but for the error, the outcome of
the proceeding would have been different.” Greer v. United
States, 593 U.S. 503, 504 (2021) (quoting Rosales-Mireles v.
challenges to jury instructions for abuse of discretion.” United
States v. Urban, 404 F.3d 754, 779 (3d Cir. 2005) (internal
quotation marks and citation omitted). But here, as Valentin
concedes, “[i]n the absence of a timely objection, we review
only for plain error.” Gov’t of Virgin Islands v. Fonseca, 274
F.3d 760, 765 (3d Cir. 2001).

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United States, 585 U.S. 129, 134-35 (2018)). He has not done
so.
His allegation that “there is no assurance the verdict
[wa]s free from … taint” (Opening Br. at 3), is insufficient to
meet the plain error standard. “[I]t is not enough for [Valentin]
to establish that it is impossible to tell whether the verdict
returned by the jury rested solely on the misinstruction, for
such a showing would establish only that the error was not
harmless. … [He] must demonstrate that the erroneous []
instruction given by the district court resulted in his
conviction.” United States v. Hastings, 134 F.3d 235, 243-44
(4th Cir. 1998) (citation omitted). Furthermore, “we adhere to
the crucial assumption underlying our constitutional system of
trial by jury that jurors carefully follow instructions.” United
States v. Franz, 772 F.3d 134, 152 (3d Cir. 2014) (quoting
Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)).
Valentin also challenges the District Court’s failure to
instruct the jury on the definition of “physical force” in a
special interrogatory relating to Count Three, brandishing a
firearm during a crime of violence, namely, Hobbs Act
robbery.12 He again failed to object to that instruction, and
cannot now show that the instruction was error or that it
resulted in his conviction. To begin with, the Court’s
instruction was taken nearly verbatim from our model jury
instructions. Compare (Supp. App. at 921-25, 928-29), with
12 The special interrogatory asked whether “the
defendant’s conduct involve[d] a substantial risk that physical
force would be used against the person or property of another?”
(App. at 4.)

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3d Cir. Model Jury Instructions 6.18.924B, 6.18.1951–1951-7
(only minor stylistic differences). “We have a hard time
concluding that the use of our own model jury instruction can
constitute error[.]” United States v. Petersen, 622 F.3d 196,
208 (3d Cir. 2010) (noting that, as in this case, the defendant
“d[id] not even contend that the model instruction is wrong”).
Furthermore, the jury’s answer to the interrogatory at
issue, which is related to what is known as the “residual clause”
of 18 U.S.C. § 924(c)(3)(B) is superfluous to Valentin’s
conviction because Hobbs Act robbery is a crime of violence
under another provision of the statute, known as the “elements
clause,” § 924(c)(3)(A).13 United States v. Stoney, 62 F.4th
108, 112-13 (3d Cir. 2023) (“[J]oin[ing] the unanimous Circuit
authority in holding that a completed Hobbs Act robbery
qualifies as a crime of violence under § 924(c)(3)(A)[.]”). The
jury confirmed in an additional special interrogatory that it
13 According to 18 U.S.C. § 924(c)(3),
a crime of violence is “an offense that is a
felony” and “(A) has as an element the use,
attempted use, or threatened use of physical
force against the person or property of another,
or (B) 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
committing the offense.”
United States v. Davis, 588 U.S. 445, 449 (2019). The
Supreme Court in United States v. Davis, which postdated the
trial at issue here, struck down subsection (B), the residual
clause, as unconstitutionally vague and violative of the Due
Process Clause. Subsection (A), the elements clause, remains.

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found that “the defendant brandish[ed] the firearm during a
crime of violence, that is, the Hobbs Act robbery charged in
Count Two.” (App. at 4.) Thus, since brandishing a firearm is
a “threatened use of physical force against … another” under
§ 924(c)(3)(A), the first interrogatory was irrelevant. Cf.
United States v. Griffin, 946 F.3d 759, 761 (5th Cir. 2020)
(“[R]eliance on the residual clause [i]s harmless if
[defendant’s] … conviction[] also satisfie[s] the other, still-
valid definitions … under the elements clause.”).
Accordingly, neither instruction was in error, and even if
they were, they did not affect the validity of the verdict.
B. Sentencing Challenges
Finally, Valentin argues that his sentence is both
procedurally and substantively unreasonable. Specifically, he
contends that the Court incorrectly held that brandishing a
firearm during a crime of violence is itself a crime of violence
under the guidelines, making him a career offender. He also
argues that the District Court should have departed downward
from his career offender range, should have granted a
downward variance due to mitigating circumstances, and erred
by imposing a substantively unreasonable sentence. All of
those arguments fail.
1. Career Offender Challenge14
Valentin argues that the District Court plainly erred in
finding that his conviction under 18 U.S.C. § 924(c) for
14 We review the District Court’s interpretation of the
sentencing guidelines de novo, United States v. Adair, 38 F.4th

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brandishing a weapon during a crime of violence was itself a
separate crime of violence. As Valentin sees it, calling the
§ 924(c) conviction a crime of violence has resulted in him
being misclassified as a career offender.15 Section 4B1.1 of the
guidelines provides that a defendant is a career offender if: (1)
he was at least eighteen years old at the time of the instant
offense; (2) the instant offense is a felony that is either a crime
of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense. U.S.S.G.
§ 4B1.1(a). The District Court applied that section to Valentin
after deciding that his brandishing of a gun during the Elegant
Creations robbery was a crime of violence.
The guidelines define a “crime of violence” as “any
offense under federal or state law, punishable by imprisonment
for a term exceeding one year, … that has as an element the
use, attempted use, or threatened use of physical force against
341, 347 (3d Cir. 2022), but we accept its findings of fact
“unless they are clearly erroneous and, … [we] give due
deference to the [D]istrict [C]ourt’s application of the
guidelines to the facts.” 18 U.S.C. § 3742(e); United States v.
Richards, 674 F.3d 215, 218, 219 n.2 (3d Cir. 2012).
15 Valentin never raised this argument before the
District Court, despite challenging his career offender
classification on other grounds, including that his Hobbs Act
conviction in the instant offense was not a violent felony under
U.S.S.G. § 4B1.2. He must now demonstrate reversible plain
error on these grounds. United States v. Dahl, 833 F.3d 345,
349 (3d Cir. 2016).

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the person of another[.]” U.S.S.G. § 4B1.2(a)(1). Despite that
clear definition, Valentin argues that we should instead be
guided by the commentary to section 4B1.2.16 He fails,
however, to show that the guideline is ambiguous, as our
decision in United States v. Nasir says is required before
turning to commentary. 17 F.4th 459, 469-71 (3d Cir. 2021)
(en banc). That is fatal to his argument. We therefore have no
basis to disagree with the District Court’s classification of
Valentin as a career offender.
Even if he had done more to carry his burden on this
point, the end would be the same. To determine whether a
conviction qualifies as a crime of violence, we apply the
“categorical approach” to “compar[e] the guidelines’
definition of ‘crime of violence’ to the elements of the statute
under which the defendant was … convicted.” United States
v. Abdullah, 905 F.3d 739, 744 (3d Cir. 2018). The jury
convicted Valentin under 18 U.S.C. § 924(c)(1)(A)(ii) of
brandishing a firearm during a crime of violence, which
16 The commentary says, “A violation of 18 U.S.C.
§ 924(c) … is a ‘crime of violence’ … if the offense of
conviction established that the underlying offense was a ‘crime
of violence.’” U.S.S.G. § 4B1.2 cmt. n.1. Valentin argues that
the underlying crime of Hobbs Act robbery is not a crime of
violence under the guidelines, and he has support for that.
United States v. Scott, 14 F.4th 190, 193-98 (3d Cir. 2021)
(holding that the underlying offense here – Hobbs Act robbery
– is not a crime of violence under the sentencing guidelines).
But Scott does not control the question before us: whether the
brandishing of a gun is a crime of violence under the
sentencing guidelines.

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necessitated a finding that Valentin “brandished” a firearm17
and that he did so during a crime of violence – here, Hobbs Act
robbery.18 Cf. Alleyne v. United States, 570 U.S. 99, 115
(2013) (“[B]ecause the fact of brandishing aggravates the
legally prescribed range of allowable sentences, it constitutes
an element of a separate, aggravated offense that must be found
by the jury[.]”). A finding of brandishing requires the jury to
have found that the defendant “display[ed] all or part of the
firearm, or otherwise ma[d]e the presence of the firearm known
to another person, in order to intimidate that person, regardless
of whether the firearm is directly visible to that person.” 18
U.S.C. § 924(c)(4) (emphasis added).
The “in order to intimidate” language of section
924(c)(4) satisfies section 4B1.2(a)(1)’s requirement that the
crime of violence offense “has as an element the use, attempted
use, or threatened use of physical force against the person of
another[.]” U.S.S.G. § 4B1.2(a)(1). In other words,
brandishing a firearm “to intimidate [a] person[,]” 18 U.S.C.
§ 924(c)(4), necessarily involves a “threatened use of physical
17 “[A]ny person who, during and in relation to any
crime of violence … uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence
… if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years[.]” 18 U.S.C.
§ 924(c)(1)(A) (emphasis added).
18 We held in United States v. Stoney that “a completed
Hobbs Act robbery qualifies as a crime of violence under
§ 924(c)(3)(A)[.]” 62 F.4th 108, 113 (3d Cir. 2023).

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21
force against [a] person[,]” U.S.S.G. § 4B1.2(a)(1); see United
States v. Wilson, 880 F.3d 80, 85 n.4 (3d Cir. 2018) (“The word
‘intimidate’ is defined in the dictionary as ‘to make … fearful’
or ‘to compel or deter by or as if by threats[.]’” (first alteration
in original) (quoting Merriam-Webster Dictionary)); see also
Intimidation, Black’s Law Dictionary (11th ed. 2019) (“The
wrong of intimidation includes … harm [] inflicted by the use
of unlawful threats[.]” (quoting R.F.V. Heuston, Salmond on
the Law of Torts 364 (17th ed. 1977))). Thus, we hold that
brandishing a gun during a crime of violence (here, Hobbs Act
robbery) qualifies as a crime of violence under guidelines
section § 4B1.2(a)(1).
It follows that the District Court did not plainly err in
applying section 4B1.1 to Valentin, classifying him as a career
offender, and sentencing him under the corresponding
guidelines range.
2. Reasonableness Challenges19
When we review the reasonableness of a sentence, we
first determine whether the district court committed any
significant procedural errors. Gall v. United States, 552 U.S.
38, 51 (2007). Such errors include “failing to calculate (or
improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the §3553(a)
19 We review the procedural and substantive
reasonableness of a sentence for abuse of discretion. United
States v. Woronowicz, 744 F.3d 848, 851 (3d Cir. 2014).
Unpreserved challenges to the reasonableness of the sentence
are reviewed only for plain error. See Dahl, 833 F.3d at 349.

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22
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence – including
an explanation for any deviation from the [g]uidelines range.”
Id. We then turn to the substantive reasonableness of the
sentence based on “the totality of the circumstances,” and
“apply a presumption of reasonableness” if the sentence is
within the guidelines range. Id. We will not reverse a sentence
as substantively unreasonable “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) (en banc). The party challenging the sentence has the
burden to show that a sentence is substantively unreasonable.
United States v. Friedman, 658 F.3d 342, 360 (3d Cir. 2011).
Valentin contends that the Court should have departed
downward from the career offender range under U.S.S.G.
§ 4A1.3(b)(1) because his criminal history category was
substantially overstated.20 His argument is a non-starter. We
decline to review a district court’s discretionary decision to
deny a sentencing departure. United States v. Cooper, 437
20 His argument depends on the District Court
erroneously counting convictions that fell outside U.S.S.G.
§ 4A1.1(a)’s fifteen year limit. Valentin concedes the error of
his own argument – that his predicate convictions fell outside
of the relevant time frame of U.S.S.G. § 4A1.2(e) – when he
admits that the offense at issue occurred “inside the 15-year
look back period.” (Opening Br. at 43; see also Supp. App. at
1078 (“[H]ad there not been a delay between the two sentences
… those two cases would have been out of the applicable 15-
year limitation.” (emphasis added)).)

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23
F.3d 324, 333 (3d Cir. 2006), abrogated on other grounds by
Rita v. United States, 551 U.S. 338 (2007).
Valentin next says the COVID-19 pandemic and
consequent prison conditions should have resulted in him
receiving a lower sentence. Not so. The District Court
correctly found that a variance based on jail conditions during
the pandemic was unwarranted. The Court explicitly
considered Valentin’s argument as it weighed the § 3553(a)
factors, and “we [do not] find that [the] [D]istrict [C]ourt’s
failure to give mitigating factors the weight [the] defendant
contends they deserve renders the sentence unreasonable.”21
United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007).
Finally, despite his protestations that his “sentence
cannot be described as ‘reasonable[,]’” Valentin received a
within-guidelines sentence. (Opening Br. at 50.) And “[a]s
long as a sentence falls within the broad range of possible
sentences that can be considered reasonable in light of the
§ 3553(a) factors, we must affirm.”22 United States v. Wise,
515 F.3d 207, 218 (3d Cir. 2008). And so, we will.
21 Valentin calls his request for a variance a “departure”
numerous times in his briefing. (See, e.g., Opening Br. at 47,
49.) To the extent that his claim is that the District Court
abused its discretion in denying a downward departure, that
claim is unreviewable, as discussed above. See, e.g., United
States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006).
22 Moreover, Valentin’s lengthy sentence was largely
driven by his correct classification as a career offender under
U.S.S.G. § 4B1.1(a).

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24
III. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s judgment of conviction and sentence.

-- 24 of 40 --

1
USA v. William Valentin, No. 21-2639
McKEE, Circuit Judge, concurring.
I concur with my colleagues’ opinion except for the
discussion of the identifications that occurred in this case.
I believe the District Court erred in both of its lay
opinion identification rulings. The District Court’s
identification rulings were upside down, and I have no idea
how the court could have ruled as it did. The Essex County
detectives had enough familiarity with Jonathan Arce to
identify him as the person reflected in the security camera
footage that was captured shortly before the robbery. By
contrast, Officer Ashley Arce was not sufficiently familiar with
Valentin to identify him as the person in the footage. Further,
I am concerned that Officer Arce’s identification testimony
was not rationally based on her perception but was instead the
product of suggestion and coercion. Accordingly, I cannot join
the Majority opinion, but I join in the judgment and write
separately to explain these concerns.
I.
The admissibility of a lay opinion identification—such
as a witness’s opinion about the identity of the person in a
picture—is governed by Federal Rule of Evidence 701. Under
that rule, lay opinion identification is admissible so long as it

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2
is “rationally based on the witness’s perception” and is “helpful
to . . . determining a fact in issue.”1
A lay witness’s opinion is not helpful if the witness is
no more familiar with the person being identified than the jury.
In United States v. Fulton,2 for example, two FBI agents
testified that a person captured in surveillance footage was the
defendant and was not an alternative suspect.3 We found both
opinions unhelpful. The first agent’s opinion was unhelpful
because his interactions with the defendant and the alternative
suspect were “very limited” and because he had not
interviewed the alternative suspect until “nearly two months
after” the crime.4 The second agent’s opinion was unhelpful
because his familiarity with the defendant and the alternative
suspect was “even more attenuated”—he met the alternative
suspect for the first time at trial.5 Neither agent had unique
insight into the defendant’s or the alternative suspect’s
appearance at the time the surveillance footage was recorded.6
As a result, neither agent was better equipped than was the jury
1 Fed. R. Evid. 701(a)–(b).
2 837 F.3d 281 (3d Cir. 2016).
3 Id. at 295–97.
4 Id. at 299.
5 Id.
6 Id. (“These minimal relations provided neither [agent] with
familiarity with the defendant’s appearance at the time the
crime was committed, the defendant’s customary manner of
dress, or the defendant in a variety of circumstances.”).

-- 26 of 40 --

3
to compare the defendant or alternative suspect to the person
captured in the surveillance footage.7
We have never specified when a witness becomes
sufficiently familiar with a person to provide a helpful lay
opinion identification. However, precedents from other courts
of appeals are instructive. The Court of Appeals for the Ninth
Circuit found a probation officer’s identification helpful
because the officer had seen the defendant “four times in a two-
month period, for a total of more than seventy minutes.”8 The
Court of Appeals for the Tenth Circuit found another probation
officer’s identification helpful because the officer had met the
defendant “for between five and ten minutes on multiple
occasions.”9 And the Court of Appeals for the Eleventh Circuit
found a police officer’s identification helpful because the
officer spent an hour with the defendant while the officer was
placing the defendant under arrest.10
While these precedents might endorse too liberal a
standard for familiarity, it is clear that the Essex County
detectives’ familiarity with Jonathan Arce substantially
exceeded that standard. Prior to identifying the individual in
7 Id. (“These agents were no better equipped than the jurors to
compare the . . . appearance [of the person in the surveillance
footage] with that of [the alternative suspect] and [the
defendant].”).
8 United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005).
9 United States v. Contreras, 536 F.3d 1167, 1171 (10th Cir.
2008).
10 United States v. Ware, 69 F.4th 830, 850–51 (11th Cir.
2023).

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4
the security footage as Jonathan Arce, the Essex County
detectives had spent two hours interviewing him within the
close confines of an interrogation room. The record does not
disclose much about the circumstances of this interview, but it
is reasonable to assume that the detectives had ample
opportunity to study Arce’s appearance. Both detectives
would have been sitting within feet of Arce, focusing their
attentions on him and with no distractions in their
surroundings. Further, this interview took place just three
weeks before the security footage was recorded. It is therefore
unlikely that Arce’s appearance had significantly changed.
The government argues that the Essex County
detectives’ identifications were unhelpful because the
detectives were not familiar with Valentin and would not,
therefore, have been able to say whether the person in the
security footage looked like Valentin. This argument misses
the point. Certainly, the ultimate question at trial was whether
the man in the footage was Valentin. It follows that any
reliable opinion bearing on that question would have been
helpful to the jury. If two witnesses who were familiar with
Arce believed the person in the footage was Arce, then their
opinions would have made it more likely that the person in the
footage was Arce. By corollary, unless Arce and Valentin were
identical twins, the same opinions would have made it less
likely that the person in the footage was Valentin.
The government also argues that the Essex County
detectives’ opinions were unhelpful because they were
“wrong.”11 But the very reason lay witnesses were asked to
identify the person in the photograph is that the person’s
11 Gov’t Br. 18.

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5
identity remained in dispute. The government does not point
to any evidence that would have indisputably removed Arce
from the cohort of individuals who could have been the person
in the security footage. To the contrary, much of the evidence
that implicated Valentin also implicated Arce, leaving Arce as
the most plausible alternative suspect to be the person in the
footage.
On the other hand, I simply do not see how one could
reasonably conclude that Officer Arce had sufficient
familiarity with Valentin to tender a helpful identification of
him.
Prior to identifying Valentin, Officer Arce had not seen
Valentin—either in person or through social media—for more
than a decade. The last time Officer Arce would have seen
Valentin, Officer Arce would have been about sixteen years
old, and Valentin would have been about twenty-eight. Officer
Arce had no idea how Valentin’s appearance had changed in
the more-than-decade since she had last seen him. No one can
dispute the fact that we all change with age, and the ways
Valentin could have changed since Officer Arce last saw him
are innumerable.12 Based on the record before us, there is no
basis to conclude that Officer Arce was familiar with
Valentin’s appearance when the security footage was recorded.
Of course, a witness may be able to help the jury
identify the person in a picture even when the witness is not
familiar with how the person looked when the picture was
taken. For example, we have previously reasoned that an
12 There is a reason that organizers of high school reunions give
attendees name badges.

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6
identification opinion could be appropriate from a lay witness
who had previously become “intimately familiar” with the
person being identified “over time and in a variety of
circumstances.”13 The logic underlying this theory of
helpfulness is that repeated interactions in changing settings
enable a witness to distill the defining features of a person’s
appearance, even when those features are subtle.14
However, Officer Arce was not intimately familiar with
Valentin. She testified that she had seen Valentin between 50
and 100 times over the course of her life, but only amidst
family gatherings and possibly during one family vacation. It
is unclear how many other people attended these gatherings or
this vacation, but it is doubtful that the events facilitated close
interactions between Officer Arce and Valentin. Officer Arce
could not recall ever seeing Valentin in anything besides a t-
shirt and jeans. She did not know whether Valentin had any
siblings. Because of the age difference between Officer Arce
and Valentin, Officer Arce had neither “grow[n] up with”
Valentin nor “h[u]ng in the same crowds” as him.15 Officer
Arce had never even seen any of Valentin’s social media pages,
did not know where Valentin lived, and did not even have
13 Fulton, 837 F.3d at 298 (quoting Beck, 418 F.3d at 1015).
14 See id. (citing United States v. Jackman, 48 F.3d 1, 5 (1st
Cir. 1995) (“Human features develop in the mind’s eye over
time. These witnesses had interacted with defendants in a way
the jury could not, and in natural settings that gave them a
greater appreciation of defendants’ normal appearance.”
(quoting United States v. Allen, 787 F.2d 933, 936 (4th Cir.
1986))).
15 Supp. App. 226–227.

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7
Valentin’s phone number. Most tellingly, she could not say at
trial, one way or the other, whether the man in the security
footage was Valentin.16
Prior to trial, Officer Arce had identified Valentin in the
security footage during an interview with the Elizabeth Police
Department. But the recording of this interview provides little
evidence that Officer Arce was intimately familiar with
Valentin.
In the video, Officer Arce identified Valentin in
essentially three different pictures taken from the security
footage. When prompted to explain how she knew the person
in the first picture was Valentin, Officer Arce hesitated, then
said: “I kinda know it’s him because . . . I just know. Like, I
can see it in the ears and the nose and the eyes . . . the body.”17
As for the second picture, Officer Arce explained that she
identified Valentin because the man in that picture was
“wearing the same hat, same clothes as the other photo.”18 For
the third picture, Officer Arce explained that she had identified
Valentin “because of the previous photos.”19
Officer Arce’s references to the body parts she could see
in the first picture of the robbery suspect were too vague and
conclusory to provide assurance that her identification was
16 Supp. App. 264 (“Q. [A]s you sit here today, are you sure
that that was William Valentin in those photos? A. No.”).
17 See Dkt. No. 86, Recording of Ashley Arce Interview at
19:10:20–42.
18 Id. at 19:11:37–43.
19 Id. at 19:12:45–55.

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8
based on intimate familiarity with Valentin’s basic features,
much less any subtle ones.20 Officer Arce did not explain what
features of Valentin she saw in the man’s ears, nose, eyes and
body that an ordinary jury member would not have noticed.
And it is clear that Officer Arce’s two other identifications
were based not on any of Valentin’s or the man’s features but
entirely on the fact that the robbery suspect was wearing the
same clothing in each picture.
Because Officer Arce had not seen Valentin in so much
as a social media post over the decade preceding the robbery,
could not describe the basis of her pre-trial identification with
any insightful specificity, and went on to recant that
identification at trial, she simply was not sufficiently familiar
with Valentin to help the jury identify him as the person in the
security footage.
II.
There is also reason to doubt that Officer Arce’s
identification was even based on her perception (i.e.
20 Fulton, 837 F.3d at 298 (“At least in theory, a witness who
is intimately familiar with a defendant’s appearance can
perceive similarities and differences that jurors might not
notice.”); see also United States v. Howell, 17 F.4th 673, 684
(6th Cir. 2021) (“When a witness has not identified the
objective bases for their opinion, the proffered opinion
obviously fails completely to meet the requirements of Rule
701 . . . because the opinion does not help the jury but only tells
it in conclusory fashion what it should find.” (brackets omitted)
(quoting United States v. Hampton, 718 F.3d 978, 981 (D.C.
Cir. 2013))).

-- 32 of 40 --

9
“reliable”). The circumstances surrounding Officer Arce’s
identification were certainly suggestive and very possibly
coercive.
Officer Arce testified that she first identified Valentin
about a week before she gave her recorded interview. At that
time, six to eight federal and local law enforcement officers
had detained Officer Arce and her family in a jetway as they
were boarding a flight for a family vacation. As some of the
agents searched Officer Arce’s carry-on bag, FBI agents
questioned Officer Arce and asked her to identify a man in a
series of pictures. First, they showed Officer Arce a “very clear
picture” of Valentin wearing a dark baseball cap, though not
the same baseball cap that the suspect was wearing in the
security footage.21 The agents then showed Officer Arce
pictures of one of the robbery suspects from the security
footage. Officer Arce testified that she initially told the agents
she could not identify the robbery suspect. Rather than respect
that response, one of the agents responded: “You know what
the fuck your family does. We’ll fuckin’ charge you, you’ll
lose your fuckin’ job.”22
Unsurprisingly, Officer Arce then identified the suspect
as Valentin. When she did, two of the detectives who were
present looked at each other as though “a light bulb went off in
their head[s].”23 Also unsurprisingly, the agents then finally
permitted Officer Arce and her family to board their flight.
21 Supp. App. 260.
22 Supp. App. 228.
23 Supp. App. 219.

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10
When Officer Arce returned from vacation, two
Customs and Border Protection agents approached her at the
airport and instructed her to come with them. They brought
Officer Arce to a room in which another six to eight law
enforcement officers were waiting. These law enforcement
officers told Officer Arce that they wanted her to come to the
Elizabeth Police Department for an interview. The law
enforcement officers also told Officer Arce that they had
notified her Internal Affairs captain that they would be
speaking to her, but the agents did not explain why they had
notified Internal Affairs. Officer Arce acquiesced and went to
the Elizabeth Police Department.
There, she gave her recorded statement identifying
Valentin in the security footage. This interview was conducted
by two detectives who had been investigating the robbery and
who knew Valentin was a suspect for the robbery—the same
detectives who had detained Officer Arce in the jetway.
During the interview, immediately before the detectives
showed Officer Arce pictures of the robbery suspect, they
showed her a relatively clear picture of a man wearing black
clothing and a black baseball cap who was staring straight into
the camera. Officer Arce had no difficulty identifying the man
in this picture as Valentin. The detectives briefly whispered to
each other and then informed Officer Arce that they would like
to show her a different set of pictures. The detectives then
showed Officer Arce pictures of the robbery suspect taken
from the security footage in which the robbery suspect was also
wearing black clothing and a black baseball cap. Only after
Officer Arce had completed the identification procedure and
positively identified Valentin did the agents tell her they had

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11
called her Internal Affairs captain as a mere formality and that
she would not get into any trouble.
This identification procedure was certainly
suggestive.24 First, it was not conducted blindly because it was
administered by the very detectives who were investigating the
robbery. Blinding is critical to prevent the identification’s
administrator from giving, and the witness from observing,
conscious or unconscious cues about the suspect’s identity.25
This source of suggestion is not merely theoretical in this case.
Officer Arce believed a “light bulb” had gone off for the
detectives when she first identified Valentin in the jetway.26
Similarly, during the recorded interview, when the detectives
whispered to each other and suddenly switched to showing
Officer Arce pictures of the robbery suspect after Officer Arce
had identified Valentin in another photo, Officer Arce may
reasonably have inferred that the detectives believed the
robbery suspect was Valentin.
24 See, e.g., Third Circuit Task Force, 2019 Report on
Eyewitness Identifications, 92 TEMPLE L. REV. 1 (2019)
(hereinafter “Third Circuit Report on Eyewitness
Identifications”).
25 Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 321 (3d
Cir. 2016) (McKee, J. concurring) (noting that “[o]ne of the
most important system variables that law enforcement can
control is the blinding of identification procedures” because it
“prevent[s] the officer [administering the identification
procedure] from giving the witness conscious or unconscious
cues that can affect the witness’ identification”).
26 Supp. App. 218:5–219:3.

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12
A second source of suggestiveness was the similarity
between the clothing Valentin was wearing in the first picture
Officer Arce was shown and the clothing the robbery suspect
was wearing in the subsequent pictures.27 Because Officer
Arce was shown a clear picture of Valentin wearing black
clothing and a black baseball cap just before she was shown a
picture of the robbery suspect in similar clothing, Officer Arce
was primed to identify the suspect as Valentin based on the
suspect’s clothing alone.
Beyond mere suggestion, however, Officer Arce’s
testimony also leaves me with serious concern that her
identification was based more on coercion than on her
perception. According to Officer Arce, she first identified
Valentin while she was detained amidst highly stressful
circumstances and only after the agents explicitly threatened
that they would cause her to lose her job if she did not make an
identification. She then provided her recorded identification
only after law enforcement officials detained her again and told
her that they had contacted her Internal Affairs captain—
implying that her job was in danger. The detectives who
conducted Officer Arce’s identification ultimately told her that
27 Cf. Third Circuit Report on Eyewitness Identifications,
supra n.24, at 45 (citing Jennifer E. Dysart et al., Show-ups:
The Critical Issue of Clothing Bias, 20 APPLIED
COGNITIVE PSYCHOL. 1009, 1019 (2006) (finding,
following a substantially randomized and controlled trial, that
“if a person who resembles the perpetrator is apprehended near
the scene of the crime, and is wearing distinct clothing similar
to that described by the eyewitness, the likelihood of false
identification is considerable”)).

-- 36 of 40 --

13
she would not face repercussions for speaking with them, but
they did so only after Officer Arce had identified Valentin.
The timing was certainly not coincidental; and the scare
tactics seem to have worked. Officer Arce testified, “I was
just scared. I thought I was going to lose my job . . . . I was just
scared that if I didn’t basically say what I said in the airport
that I was going to be in trouble.”28 An identification obtained
through coercion surely would not satisfy the requirement of
Rule 701(a). More importantly, courts should discourage this
type of overreach in identification procedures and refuse to
admit any identifications they produce.
III.
To be sure, Officer Arce’s testimony at trial was
somewhat inconsistent with her recorded statement, in which
she stated that she had seen Valentin “thousands” of times and
that she had not been threatened into identifying the suspect as
Valentin.29 We are in no position to decide which version of
the story is true. But the inconsistencies between Officer
Arce’s testimony and recorded statement highlight a more
fundamental problem with the District Court’s ruling: despite
knowing that Officer Arce might recant her recorded
identification, and even though Officer Arce was present and
available, the District Court did not subject Officer Arce to
examination outside the presence of the jury before deciding
whether she was competent to offer a lay opinion
identification.
28 Supp. App. 249:3–9.
29 Supp. App. 192.

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14
Had the District Court heard Officer Arce’s reasons for
recanting and been able to assess Officer Arce’s credibility
before it ruled, the District Court may have come to a different
decision. Alternatively, the District Court may have found
Officer Arce’s recantation incredible, and we would defer to
that determination.30 But the District Court made its decision
on the limited information that was available from the video
recording and counsel’s proffers. As a result, I am left with
concerns about Officer Arce’s recantation and doubts about the
reliability of her identification.31
IV.
The dangers of admitting improper identifications
cannot be overstated. False eyewitness identifications are the
leading cause of wrongful convictions.32 While this case
30 Copperweld Steel Co. v. Demag-Mannesmann-Bohler, 578
F.2d 953, 964 (3d Cir. 1978) (“In review of the factual
underpinning for the admission of the evidence, we must
decide only if the findings of fact are clearly erroneous.”).
31 The District Court seems to have shared this concern and
ordered the Government to make Officer Arce available for a
Rule 104 hearing for these very reasons. As the District Court
explained: “[I]f there were someone that says, I identified him
because I was his cousin . . . a month or two after the robbery,
but today [has] no idea [who the suspect is], that would suggest
to me that the person really didn’t have intimate familiarity
with the person [being identified].” Supp. App. 1243.
32 See Third Circuit Report on Eyewitness Identifications,
supra n.24, at 10–11.

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15
concerns lay opinion identifications rather than eyewitness
identifications, the same dangers are present here. Given the
extreme prejudice that typically follows a false identification,
I am reluctant to find harmless error when an identification is
improperly admitted.
Nevertheless, in this particular case, I believe the
evidence of Valentin’s guilt was so overwhelming33 that the
33 My colleagues summarize much of the evidence supporting
Valentin’s convictions at note 7 of their opinion. See Maj. Op.
at 11 n.7. I agree that this evidence establishes harmless error
for Valentin’s robbery and conspiracy convictions. As for
Valentin’s conviction under 18 U.S.C. § 924(c)(1)(A)(ii) for
brandishing a firearm during the robbery, I believe it necessary
to put a finer point on the evidence supporting Valentin’s
conviction.
The evidence my colleagues cite establishes Valentin’s
presence at the scene of the crime, general participation in the
crime, and prior agreement to participate in the crime. For the
§ 924(c) charge, however, the critical question was whether
Valentin was the specific individual who brandished the gun.
As the District Court noted, there was no evidence that anyone
else involved in the robbery had a gun, so Valentin could not
have been convicted under this count on an accomplice theory.
Setting aside Officer Arce’s identification, two other sources
of evidence support the jury’s verdict that Valentin was in fact
the individual who brandished the gun: the pictures from the
security footage themselves and the testimony of Valentin’s
accomplice. While the security footage pictures were not so
clear as to render lay opinion identification entirely

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16
erroneous exclusion of the detectives’ identifications and
admission of Officer Arce’s identification do not undermine
my confidence in Valentin’s convictions.34 Accordingly, I join
my colleagues in their judgment as well as all aspects of their
opinion except their discussion of the District Court’s lay
opinion identification rulings.
unnecessary, they were clear enough that the jury could
reasonably have concluded through its own direct comparison
that Valentin was the man in the pictures.
Further, the accomplice’s testimony was so thoroughly
corroborated by the evidence my colleagues cite that the
accomplice’s specific testimony that Valentin was the leader
and organizer of the robbery and the individual who brandished
the gun was particularly damning. And while Officer Arce’s
identification should never have been presented to the jury for
the reasons I explain above, its potential prejudice was
mitigated by the fact that Valentin’s counsel effectively used
cross examination to inform the jury of the limitations of
Officer Arce’s ability to make an identification and of the
suggestive and coercive circumstances that surrounded her
identification.
34 United States v. Auernheimer, 748 F.3d 525, 539 (3d Cir.
2014) (“In order for an error to be harmless, the Government
must prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”)
(internal quotation marks omitted) (quoting Gov’t of V.I. v.
Davis, 561 F.3d 159, 165 (3d Cir. 2009)).

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