Criminal – Claimed sentencing error deemed harmless

Where the defendant argued the district court erred when it failed to group his two attempted robbery convictions together with his conspiracy count during sentencing, any error was harmless. Nothing in the record suggests the district court would have sentenced him differently if it had combined the counts in a single group. Rather, the seriousness of the crime, his substantial criminal history and his lack of remorse drove the sentence which, in any event, was a significant downward departure.

Background

A federal grand jury charged Xavier Holley with two counts of attempted Hobbs Act robbery, one count of conspiracy to commit Hobbs Act robbery, one count of carrying a firearm in furtherance of a crime of violence and one count of using a firearm during and in relation to a crime of violence causing death. The trial jury convicted Holley on all counts, and the district court sentenced him to life in prison plus 60 months.

After the Supreme Court ruled that attempted Hobbs Act robbery is not categorically a crime of violence, Holley’s two § 924 counts were vacated and a new sentencing hearing was scheduled before the same district court judge who had sentenced him 10 years earlier. This time, the court sentenced Holley to 480 months’ imprisonment, composed of 240 months for each attempted robbery, to be served concurrently, and 240 months for conspiracy, to be served consecutively.

Grouping

The Sentencing Guidelines prescribe certain grouping rules for determining the offense level for an individual convicted of multiple offenses. Rather than grouping all three counts together, the district court divided the attempted robberies into two separate groups and grouped the conspiracy count with each attempt individually. Holley contends this decision contravened Guidelines Section 3D1.2, which instructs that “[a]ll counts involving substantially the same harm shall be grouped together,” such as when “counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.”

This court need not decide whether the district court’s grouping decision was erroneous because it was harmless. As the district court explicitly acknowledged, and the parties do not dispute, the grouping decision had no impact on Holley’s total offense level. Either way, Holley’s criminal history and offense level would result in a Guidelines recommended sentence of life imprisonment, restricted by the statutory maximum term of 720 months.

Nothing in the record suggests the district court would have sentenced Holley differently if it had combined the counts in a single group. Rather, the seriousness of the crime, Holley’s substantial criminal history and his lack of remorse drove the sentence. Moreover, the district court varied significantly downward from the Guidelines recommended sentence of 720 months and, as we discuss later, the resulting sentence was reasonable. Assuming the district court committed a grouping error, it was harmless.

Hobbs Act

Holley next challenges the district court’s decision to run his sentence for Hobbs Act conspiracy consecutive to his sentences for attempted Hobbs Act robbery. He suggests that the district court lacked authority to order consecutive sentences and, in any event, it was an abuse of discretion to do so.

This court recently held that a district court may lawfully impose consecutive sentences for Hobbs Act conspiracy and an attempted Hobbs Act robbery that was the object of that conspiracy. Holley observes that “the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt.”

But conspiracy is not the sole objective of attempted robbery, so that restriction does not apply here. The district court permissibly exercised its discretion to order consecutive sentences in crafting a total sentence that it found was sufficient, but not greater than necessary, to achieve the goals of sentencing in Holley’s case.

Explanation

Holley also asserts that the district court erred in two respects regarding “the need to avoid unwarranted sentence disparities.” This court disagrees. The district court expressly addressed this factor in its sentencing explanation, including a thorough discussion comparing Holley and his co-conspirators.

Counsel

Holley contends that he received ineffective assistance of counsel at sentencing because his attorney labored under a conflict of interest. This court need not decide whether the counsel had an actual conflict of interest because Holley has not shown any adverse effect. Holley offers nothing but speculation and accordingly has not demonstrated an adverse effect on his performance at resentencing. Further, no adverse effect is apparent from the record.

Affirmed.

United States v. Holley, Case No. 24-4432, April 20, 2026. 4th Cir. (Rushing), from EDVA at Norfolk (Smith). David Iraola and Brian Joseph Young for Appellant. Emily Rebecca Gantt for Appellee. VLW 026-2-146. 11 pp.

Full-Text Opinion

VLW 026-2-146
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