NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 21-2178 & 22-1203
______________
UNITED STATES OF AMERICA
v.
MARCELLAS HOFFMAN,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-01-cr-00169-002)
U.S. District Judge: Honorable Joel H. Slomsky
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2023
______________
Before: SHWARTZ, BIBAS, and FUENTES, Circuit Judges.
(Filed: February 6, 2023)
______________
OPINION
______________
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SHWARTZ, Circuit Judge.
Marcellas Hoffman appeals various rulings, including those associated with his
sentence. Only one of Hoffman’s challenges has merit, so we will affirm in part, vacate
in part, and remand for resentencing.
I
Hoffman’s conviction arises from his conspiracy to distribute drugs and his armed
robbery of his drug supplier. More specifically,
[i]n early 2001, Hoffman decided to rob [the leader of a multi-million dollar
drug organization, Juan] Rosado[,] and enlisted the help of a former co-
worker, Gary Oliver. Hoffman telephoned Rosado and told him that he was
coming to Philadelphia with $30,000 to purchase 500 grams of heroin and a
kilogram of cocaine. Oliver testified that on the morning of January 20,
2001, he drove to Hoffman's house [in Virginia] to pick him up . . . . The
two men then drove to Camden, New Jersey where they met Hoffman's
cousin [Gary McGahee]. The three men then drove to meet Rosado . . . .
[Rosado picked up 390 grams of heroin and ordered one of his employees,
David Vasquez, to bring Hoffman and the others to his stash house. After
they arrived, Hoffman and Oliver entered the house while McGahee waited
outside. Rosado was not yet present.]
Once inside, . . . Hoffman and Oliver pointed guns at Vasquez, and Hoffman
handcuffed him and demanded to know where the drugs and money were
located. Vasquez answered that Rosado was bringing the drugs, and he was
then thrown on the floor and pistol whipped by Hoffman, who shot him in
the leg.
When Rosado arrived [with his wife and mother-in-law who both stayed in
his truck parked outside the house], he met Hoffman . . . [who] demanded
the drugs. Rosado told him the drugs were in the truck and that he would get
them. Before they went to the truck, Hoffman searched Rosado and took
$1,000 in cash, his credit cards, and his license . . . . Hoffman also took 800
[to] 900 grams of cocaine from the kitchen.
After exiting the [stash] house, Hoffman placed Rosado in his truck with
[McGahee] and walked towards Rosado's truck. Rosado freed himself,
2
jumped out of Hoffman's truck, and ran towards his own truck. Hoffman
chased Rosado and fired at him, hitting him once in the buttocks and grazing
his leg. Rosado's wife began driving the truck towards the two men.
Hoffman shot at the truck but ran out of bullets. Rosado then jumped into
the truck and drove away . . . .
United States v. Hoffman, 148 F. App’x 122, 124-25 (3d Cir. 2005).
A grand jury returned a six-count superseding indictment against Hoffman,
charging him with violations of federal drug, firearms, and robbery laws, and a jury
convicted him on all counts.1 Id. at 126. The District Court sentenced Hoffman “to life
imprisonment on [C]ounts [O]ne, [T]wo, and [S]ix, ten years on [C]ount [T]hree, twenty
years on [C]ount [F]our, and twenty-five years on [C]ount [F]ive.” Id. We affirmed his
conviction but vacated his sentence so the District Court could apply United States v.
Booker, 543 U.S. 220 (2005), which was decided while Hoffman’s direct appeal was
1
The superseding indictment charged Hoffman with: (1) conspiracy to distribute
and possess with intent to distribute in excess of 100 grams of heroin and in excess of
500 grams of cocaine in violation of 21 U.S.C. § 846 (Count One); (2) attempt to possess
with intent to distribute in excess of 100 grams of heroin in violation of 21 U.S.C. §§
841, 846 (Count Two); (3) using and carrying a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three); (4) Hobbs Act
robbery, in violation of 18 U.S.C. § 1951 (Count Four); (5) using and carrying a firearm
during and in relation to a violent crime (Hobbs Act robbery), in violation of 18 U.S.C. §
924(c) (Count Five); and (6) being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1) (Count Six).
Hoffman contends that the Government constructively amended Count Three of
the indictment, but we previously rejected his claim “that there was a variance in the
proof presented” at trial, Hoffman, 148 F. App’x at 127, and he has not identified any
new evidence, intervening law, or manifest injustice caused by adhering to that holding.
In re City of Phila. Litig., 158 F.3d 711, 717-18 (3d Cir. 1998).
Hoffman also challenges his felon-in-possession conviction (Count Six) based on
Rehaif v. United States, 139 S. Ct. 2191 (2019), but the District Court properly declined
to consider the Rehaif claim because it was then the subject of a § 2255 motion. The
District Court has since denied that motion and we denied Hoffman’s request for a
certificate of appealability, see No. 22-1711, ECF No. 13.
3
pending. Id. at 131. On remand, the District Court resentenced Hoffman to 360 months
on Counts One, Two, and Six, 240 months on Count Four, a consecutive ten-year
sentence on Count Three, and a consecutive twenty-five-year sentence on Count Five, for
a total sentence of sixty-five years. Hoffman appealed again, and we affirmed. United
States v. Hoffman, 271 F. App’x 227, 229-30 (3d Cir. 2008).
B
In November 2019, we granted Hoffman permission to file a second or successive
habeas motion based on United States v. Davis, 139 S. Ct. 2319 (2019). Applying Davis,
the District Court held that the predicate offense for Hoffman’s § 924(c) conviction in
Count Five—conspiracy to commit Hobbs Act robbery—was no longer categorically a
crime of violence, so it vacated the conviction on that count and ordered resentencing.
Before the resentencing, the District Court granted Hoffman’s request to represent
himself with the assistance of standby counsel because of a conflict of interest with his
existing attorneys2 and denied Hoffman’s requests for discovery.3
2
Hoffman’s continued complaints about counsel’s conflicts lack merit. The
District Court addressed the conflict by granting his requests that counsel withdraw and
to proceed pro se following a “penetrating and comprehensive examination,” as required
under United States v. Peppers, 302 F.3d 120, 135-36 (3d Cir. 2002). Moreover, his
ineffective assistance claims against his various counsel are more properly presented in a
§ 2255 motion. United States v. Olfano, 503 F.3d 240, 246-47 (3d Cir. 2007) (“This
Court generally does not review Sixth Amendment ineffective assistance of counsel
claims on direct appeal.”). Nothing herein, however, should be construed as granting
Hoffman leave to file a successive § 2255 petition or opining that an ineffective
assistance of counsel claim can be brought against standby counsel. See United States v.
Morrison, 153 F.3d 34, 55 (2d Cir. 1998) (holding that no such claim exists).
3
The District Court did not abuse its discretion in denying Hoffman’s discovery
requests. See United States v. Berrigan, 482 F.2d 171, 181-82 (3d Cir. 1973). First, the
4
At the resentencing, the District Court calculated an offense level of 37 and a
criminal history category of VI, both under a straight Guidelines calculation and under
the career offender provision, U.S.S.G. § 4B1.1. As a result, Hoffman’s Guidelines range
was 360 months to life. The PSR also noted that he was subject to a ten-year mandatory
minimum on Counts One and Two because he had a previous drug felony conviction, 21
U.S.C. § 841(b)(1)(B), a consecutive ten-year mandatory minimum sentence on Count
Three under 18 U.S.C. § 924(c)(1)(A), and a fifteen-year mandatory minimum sentence
on Count Six because he was classified as an armed career criminal, 18 U.S.C. 924(e)(1).
Hoffman requested a downward departure from the Guidelines range based on (1)
his mental health issues, (2) his age when he committed the crimes, and (3) racial
sentencing disparities. The District Court concluded that these circumstances did not
warrant a departure but could provide a basis for a variance. The Court also heard from
Hoffman’s family members who testified about his difficult upbringing and from
Hoffman himself about his rehabilitative efforts while incarcerated.
requested materials relating to Hoffman’s co-conspirator’s § 2255 proceeding do not
constitute Brady material, Brady v. Maryland, 373 U.S. 83 (1963), because he has not
shown how any of the information in that proceeding is favorable to him, id. at 87
(requiring prosecution turn over only “material” evidence “favorable” to defendant).
Second, Hoffman was not entitled to any Giglio material because the Government did not
present any witnesses at the resentencing hearing. See Giglio v. United States, 405 U.S.
150, 154 (1972) (requiring the prosecution to produce impeachment evidence for
government witnesses). Finally, the confidential informant information is not “essential
to a fair determination[] of his guilt” because his conviction is already final, and he has
not shown that this information was relevant to his defense or the resentencing. United
States v. Gatlin, 613 F.3d 374, 379-380 (3d Cir. 2010) (quoting Roviaro v. United States,
353 U.S. 53, 60-61 (1957)).
5
In determining Hoffman’s sentence, the District Court noted “the serious nature of
the facts of this case,” which “involve[d] drugs, the use of firearms, [and] the shooting of
people,” Supp. App. 235, Hoffman’s long criminal history, and Hoffman’s lack of
remorse for his own actions.4 The Court, however, acknowledged Hoffman’s
rehabilitative efforts, his age at the time he committed the crimes, his family
circumstances, and “the need to avoid unwarranted sentence disparity from other
defendants with similar records,” Supp. App. 241. Ultimately, the Court imposed
sentences of 330 months on each of Counts One and Two, 240 months on Count Four,
and 180 months on Count Six to run concurrently, as well as a ten-year mandatory
minimum consecutive sentence on Count Three, for a total sentence of 450 months.5
4
Hoffman contends that the District Court violated his Fifth Amendment right
against self-incrimination because it drew an adverse inference from his failure to express
remorse about his own conduct. Hoffman, however, did not invoke his right to remain
silent at the resentencing but rather voluntarily spoke on his own behalf during the
allocution portion of the proceedings. United States v. Stanley, 739 F.3d 633, 652 (11th
Cir. 2014) (explaining that a sentencing court “may not weigh the exercise of Fifth
Amendment rights against the defendant” but “may take into account a defendant’s freely
offered statements indicating a lack of remorse” (alteration omitted) (quoting United
States v. Rodriguez, 959 F.2d 193, 197 (11th Cir. 1992))). Therefore, the District Court
properly considered Hoffman’s failure to express remorse in fashioning its sentence.
United States v. King, 454 F.3d 187, 195 (3d Cir. 2006) (concluding that the defendant’s
“lack of remorse” was an appropriate consideration supporting the district court’s
sentence); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider for the purpose of imposing
an appropriate sentence.”).
Hoffman’s participation in a video interview with the probation office before his
resentencing also did not violate his Miranda rights because he was not compelled to
participate in that interview.
5
Hoffman contends that the audio recording of the resentencing shows that the
District Court did not properly resolve Hoffman’s motion to correct the record. The
6
Hoffman appeals.
II6
A
We have considered each of Hoffman’s arguments and have concluded that only
one has merit, namely, that the District Court erroneously imposed a ten-year mandatory
minimum consecutive sentence on Count Three, which charged Hoffman with
“knowingly us[ing] and carr[ying]” a firearm “during and in relation to a drug trafficking
crime.” D. Ct. ECF No. 91 at 6. The “use and carry” offense carries a mandatory
consecutive sentence of at least five years, 18 U.S.C. § 924(c)(1)(A)(i), whereas an
offense in which a defendant “discharge[s]” a firearm during a drug trafficking crime
carries a ten-year mandatory minimum, 18 U.S.C. § 924(c)(1)(A)(iii). Because Hoffman
was indicted for one crime (using and carrying a firearm) and apparently sentenced for a
different crime (discharging a firearm), the imposition of the ten-year consecutive
mandatory minimum on this record violated his constitutional rights. Alleyne v. United
States, 570 U.S. 99, 115-16 (2013); see also United States v. Lewis, 802 F.3d 449, 454
purported omissions, however, relate to discussions about documents reflecting his prior
convictions. The District Court adequately considered his argument that the Government
had failed to prove his prior convictions, and the record shows that the documents
concerning those convictions were made available to Hoffman during the resentencing.
Thus, any of the purported omissions had no impact on the proceedings.
6
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “Allegations of constitutional error at
sentencing are subject to plenary review.” United States v. Lewis, 802 F.3d 449, 453 (3d
Cir. 2015) (en banc). With respect to assertions of Guideline errors, “we exercise plenary
review of [the] district court’s interpretation of the Guidelines but review its factual
findings for clear error.” United States v. Fountain, 792 F.3d 310, 318 (3d Cir. 2015).
7
(3d Cir. 2015) (en banc).7 Although the District Court had the authority to impose a
sentence above the applicable mandatory minimum of five years, see 18 U.S.C.
924(c)(1)(A)(i) (stating that the sentence shall be “not less than [five] years”), the record
suggests that the Court believed it was statutorily required to impose a mandatory
7
Because Hoffman was subject to a full resentencing and received a new
judgment, which is the subject of this direct appeal, Alleyne applies here even though
Hoffman was originally convicted and sentenced before it was decided. In certain
circumstances, the vacatur of a specific count of conviction triggers “a de novo
resentencing as to all counts of [the] conviction [because] the sentencing judge . . .
‘craft[s] a disposition in which the sentences on the various counts form part of an overall
plan.’” Romansky v. Superintendent Greene SCI, 933 F.3d 293, 300 (3d Cir. 2019)
(quoting United States v. Miller, 594 F.3d 172, 180 (3d Cir. 2010)). A de novo
resentencing creates new final judgments as to all counts of conviction. Id.; see also
Lesko v. Sec’y Pa. Dep’t of Corr., 34 F.4th 211, 225 (3d Cir. 2022). Here, the District
Court undertook a de novo resentencing after Count Five of Hoffman’s conviction was
vacated. Thus, the resentencing created new judgments as to all counts of Hoffman’s
conviction, including Count Three. Contrary to its letter, the Government’s appellee
brief correctly recognized that the District Court viewed the new sentence as an
aggregated, interrelated package.
Although the resentencing was preceded by an order granting relief under 2255,
Hoffman received a new judgment, which he has appealed. A judgment reflecting a new
sentence after a § 2255 resentencing is “a hybrid order that is both part of the § 2255
proceeding and part of his criminal case.” United States v. Hadden, 475 F.3d 652, 664
(4th Cir. 2007). “To the extent the order vacates the original sentence and enters a new
criminal sentence, [it] is part of the prisoner’s criminal case, and, accordingly. . . . if the
petitioner seeks to appeal the order by challenging the relief granted, i.e., . . . whether the
new sentence was in conformity with the Constitution or Sentencing Guidelines, etc., he
is appealing a new criminal sentence.” Id. (emphasis omitted). Because such a challenge
is considered a direct appeal, the defendant is not limited by the retroactivity rules
governing collateral attacks. See Ajan v. United States, 731 F.3d 629, 634 (6th Cir.
2013) (directing the district court to apply Booker on resentencing after a successful §
2255 motion even though the defendant was originally sentenced before Booker was
decided). Therefore, because Hoffman received relief on his habeas petition, was
resentenced, obtained a new criminal judgment, and has now directly appealed that
judgment, he is entitled to the application of the law in effect at the time of his
resentencing, which includes Alleyne. United States v. Johnson, 899 F.3d 191, 199 (3d
Cir. 2018) (holding that Alleyne applies to cases pending on direct appeal at the time it
was decided).
8
minimum of ten years under the discharge provision because Hoffman in fact discharged
a weapon even though he was not charged under the discharge provision. As a result, we
cannot conclude that this error was harmless, Lewis, 802 F.3d at 454-55, and we will
therefore vacate Hoffman’s sentence on Count Three and remand for resentencing.
B
Although Hoffman will face resentencing, we nevertheless address his other
sentencing challenges, all of which are meritless, so that the District Court and the parties
have the benefit of rulings on those issues and need not revisit them on remand. See
United States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) (explaining that when a
sentence on an interdependent count of a multi-count indictment is vacated, “the
resentencing proceeding conducted on remand is de novo unless we specifically limit the
district court’s authority”).
First, the District Court did not violate his double jeopardy and due process rights
by resentencing him on Count Four—the Hobbs Act robbery count—even though he had
fully served the twenty-year term of imprisonment as of the date of the resentencing. For
both double jeopardy and due process purposes, we must determine whether Hoffman
had an expectation of finality in his original sentence. United States v. DiFrancesco, 449
U.S. 117, 139 (1980) (double jeopardy); United States v. Davis, 112 F.3d 118, 123 (3d
Cir. 1997) (due process). He did not. The twenty-year sentence on the Hobbs Act
robbery count was a constituent part of an aggregate sentence or “sentencing package”
consisting of interrelated sentences on each count for which Hoffman was convicted. See
Miller, 594 F.3d at 180. A defendant has no expectation of finality where he has only
9
served a part of a sentencing package.8 Because Hoffman was still serving his aggregate
sentence, resentencing him on the Hobbs Act robbery count did not violate his double
jeopardy or due process rights.9
Second, none of Hoffman’s attacks on the procedural reasonableness of his
sentence have merit. The District Court calculated the Guidelines advisory range, ruled
on Hoffman’s departure motion, and considered the § 3553(a) factors. United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
Hoffman’s objections to the calculation of the advisory Guidelines range fail. We
previously rejected his assertion that the District Court erred in determining that he was
responsible for 390 grams of heroin for Guidelines purposes and that it should have
allowed him to present expert testimony contradicting the evidence supporting this
amount. Hoffman, 271 F. App’x at 230 (affirming the district court’s decision to exclude
Hoffman’s witnesses on drug quantity in light of the trial evidence). That ruling is the
8
United States v. Brown, 26 F.4th 48, 61 (1st Cir.), cert. denied, 143 S. Ct. 238
(2022); United States v. Townsend, 178 F.3d 558, 569-70 (D.C. Cir. 1999); United States
v. Mata, 133 F.3d 200, 202 (2d Cir. 1998); United States v. McClain, 133 F.3d 1191,
1193-94 (9th Cir. 1998); United States v. Easterling, 157 F.3d 1220, 1223-24 (10th Cir.
1998); United States v. Smith, 115 F.3d 241, 247 (4th Cir. 1997); United States v.
Benbrook, 119 F.3d 338, 340-41 (5th Cir. 1997); Pasquarille v. United States, 130 F.3d
1220, 1222-23 (6th Cir. 1997); United States v. Alton, 120 F.3d 114, 116 (8th Cir. 1997);
United States v. Smith, 103 F.3d 531, 535 (7th Cir. 1996).
9
The District Court also properly applied a Guidelines enhancement for
discharging a firearm during the robbery even though Hoffman’s conviction based on
using a firearm in connection with his conspiracy to commit a Hobbs Act robbery was
vacated because relevant sentencing conduct “includes facts that might have formed the
basis of uncharged offenses as well as charges on which the defendant was acquitted.”
United States v. Jackson, 862 F.3d 365, 390 (3d Cir. 2017).
10
law of the case.10 United States v. Johnson, 899 F.3d 191, 209 (3d Cir. 2018) (applying
the law of the case doctrine to bar reconsideration of the defendant’s sufficiency of the
evidence claim even after the Supreme Court vacated and remanded the defendant’s
sentence). Moreover, the District Court had a sufficient record for applying both the
career offender and armed career criminal provisions. The probation office possessed
documents evidencing the predicate convictions, which were made available to Hoffman
during the resentencing. Hoffman declined to review them and so he has no basis to
argue that they were insufficient.11
Hoffman’s arguments that the District Court erroneously denied his motion for a
downward departure also do not provide a basis for relief. The District Court understood
that it had the discretion to grant downward departures on the grounds argued but
declined to do so, and we lack jurisdiction to review that ruling. United States v. Lofink,
564 F.3d 232, 240 (3d Cir. 2009).
10
In any event, the drug quantity calculation does not impact Hoffman’s
Guidelines range. See United States v. Raia, 993 F.3d 185, 195 (3d Cir. 2021)
(explaining that a Guidelines miscalculation is harmless as long as the reviewing court
can be sure it had no effect on the sentence imposed). The two drug counts (Counts One
and Two) and the felon in possession count (Count Six) were grouped and, partly based
on the drug quantity finding, the total offense level associated with the three counts was
26. The Hobbs Act robbery count (Count Four) comprised a separate group, which had
an offense level of 37. Because there was more than a nine-level difference between the
two groups, the District Court properly used the offense level for the higher group.
U.S.S.G. § 3D1.4(c).
11
The career offender designation also did not affect the calculation of Hoffman’s
Guidelines range. As applied to Hoffman, the career offender provision mandated an
offense level of 37 and a criminal history category of VI, U.S.S.G. § 4B1.1, which were
coincidentally the same offense level and criminal history category appliable to him
under a straight Guidelines calculation.
11
Finally, contrary to Hoffman’s view, the District Court fully considered the
§ 3553(a) factors. It cited § 3553(a) and (1) concluded “the nature and circumstances of
the offense” indicated this was “a very serious case . . . involv[ing] drugs, the use of
firearms, [and] the shooting of people,” Supp. App. 234-35; (2) noted Hoffman’s history
and characteristics including his “wonderful family that supports him,” Supp. App. 235,
his prior criminal history, his mental health issues, and his lack of remorse; and (3)
described the need to provide both specific and general deterrence with its sentence and
to avoid unwarranted sentencing disparities. This “explanation [is] sufficient for us to see
that the particular circumstances of the case have been given meaningful consideration
within the parameters of § 3553(a).”12 United States v. Levinson, 543 F.3d 190, 196 (3d
Cir. 2008). As such, Hoffman’s sentence was procedurally reasonable.13
12
The District Court’s discussion of the § 3553(a) factors also provided a basis for
imposing an eight-year term of supervised release. United States v. Bloch, 825 F.3d 862,
869 (7th Cir. 2016) (“Contrary to [the defendant’s] position, the district court was not
required to provide two separate explanations, one for the term of imprisonment and one
for the term of supervised release.”).
Hoffman’s vagueness challenge to the supervised release condition that prohibits
him from interacting with felons fails because the condition only prohibits Hoffman from
interacting with persons he knows have been convicted of a felony and, therefore, does
not punish chance encounters. See United States v. Loy, 237 F.3d 251, 268-69 (3d Cir.
2001) (holding that a similar “associational condition” was not unconstitutionally vague
because, as interpreted by the court, it did not punish “accidental or unavoidable contact”
with a prohibited group). Moreover, the condition was adequately supported by
Hoffman’s criminal history. United States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007)
(“Where a sentencing court fails to adequately explain its reasons for imposing a
condition of supervised release or the condition’s relationship to the applicable
sentencing factors, we may nevertheless affirm the condition if we can ‘ascertain any
viable basis for the . . . restriction in the record before the District Court.’” (quoting
United States v. Warren, 186 F.3d 358, 367 (3d Cir. 1999)).
13
Because we are vacating Hoffman’s sentence on Count Three and remanding for
resentencing, we need not address the substantive reasonableness of his sentence.
12
III
For the foregoing reasons, we will affirm in part, vacate in part, and remand for
resentencing.
13