United States v. Yonas Eshetu

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2017 Decided July 25, 2017

No. 15–3020

UNITED STATES OF AMERICA,
APPELLEE

v.

YONAS ESHETU, ALSO KNOWN AS YONAS SEBSIBE,
APPELLANT

Consolidated with 15–3021, 15–3023

Appeals from the United States District Court
for the District of Columbia
(No. 1:13–cr–00262–5)
(No. 1:13–cr–00262–2)
(No. 1:13–cr–00262–1)

Carmen D. Hernandez, appointed by the court, argued the
cause for the appellants. Mary E. Davis, Christopher M.
Davis and Anthony D. Martin, all appointed by the court, were
with her on briefs.

Peter S. Smith, Assistant United States Attorney, argued
the cause for the appellee. Elizabeth Trosman, Emory V. Cole
and Karla-Dee Clark, Assistant United States Attorneys, were
with him on brief.
 2

Before: HENDERSON, KAVANAUGH and MILLETT, Circuit
Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Opinion concurring in part and concurring in the judgment
filed by Circuit Judge MILLETT.

KAREN LECRAFT HENDERSON, Circuit Judge: Pablo
Lovo, Joel Sorto and Yonas Eshetu were friends. On
September 5, 2013, they met an undercover police officer at a
Washington, D.C., storage facility in preparation for a robbery.
But before departing for the robbery, the police arrested them.
The three were tried by a jury and convicted of conspiracy.
Lovo and Sorto were also convicted of using, carrying or
possessing a firearm during a crime of violence. For the
following reasons, we affirm the district court in all but one
claim; that one claim is remanded.

I. BACKGROUND

THE PLOTTED ROBBERY1

At least twice in 2012 and 2013, defendant Lovo helped
his friend, Jonathan Avila, obtain drugs to sell to “Santos.”
Unbeknownst to Lovo, however, Avila was cooperating with
law enforcement and “Santos” was Miguel Rodriguezgil, an

1
We draw these facts from the evidence adduced at trial.
Lovo presented a different version of the facts which we discuss
infra.
 3
officer with the District of Columbia Metropolitan Police
Department (MPD).

During summer 2013, Rodriguezgil began investigating
Lovo for a different crime—conspiracy to rob a liquor store.2
The plan came into being over the course of several meetings.
It began on August 13, when Lovo, Rodriguezgil and Avila met
at a Washington, D.C., restaurant. There, Rodriguezgil asked
Lovo about his experience with robbery and Lovo responded
that he and his “crew” often robbed brothels. Rodriguezgil
offered to obtain information about a potential robbery target.
They parted ways, agreeing to meet in the days ahead.

A second meeting followed on August 16. This time,
Lovo met with Rodriguezgil and Janice Castillo, a special agent
with the United States Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF). Castillo posed as a courier for a drug-
trafficking organization. Disgruntled because the
organization failed to pay her, Castillo proposed robbing its
cocaine “stash house.” Lovo expressed interest and, again,
emphasized his crew’s experience robbing brothels.

Rodriguezgil and Lovo made plans to meet a third time
and did so on August 24 at another Washington, D.C.,
restaurant. This time, Lovo was accompanied by his friend,
defendant Sorto. Rodriguezgil told the two men that Castillo
was meeting with another potential robbery crew in New York
because she was worried about Lovo’s crew’s inexperience.
Lovo protested and also volunteered to supply guns for the
robbery, including a “TEC-9” semiautomatic pistol. Sorto
interjected that he would be armed with a machete. The three
continued to discuss the robbery’s target and logistics and
concluded their meeting with the understanding that

2
2013 is the year of all relevant actions unless otherwise
noted.
 4
Rodriguezgil was to inform the others once he received more
information from Castillo.

Rodriguezgil and Lovo spoke by telephone several days
later. Rodriguezgil proposed meeting so that he could show
Lovo a vehicle suitable for the robbery. They met on
September 2. Lovo arrived in a Kia; Rodriguezgil in an SUV.
Lovo examined it, including a secret compartment
Rodriguezgil suggested could hide the guns and the two parted
ways. The next time they would see one another was the day
set for the robbery.

On the evening of September 5, Rodriguezgil and Lovo
met at a storage unit in Northwest Washington, D.C., outfitted
to resemble a cocaine-processing facility. Rodriguezgil
arrived in the same undercover vehicle as before; Lovo drove
his Kia and was accompanied by Sorto, defendant Yonas
Eshetu and two other men. Rodriguezgil removed a gun from
his person, stored it in his vehicle’s secret compartment and
told Lovo to do the same. Lovo and Sorto then opened the
Kia’s trunk but did not retrieve any weapons from it. Instead,
they manipulated a bag in the trunk and left it there. Lovo
explained to Rodriguezgil that he intended to leave the guns in
the Kia because they might use two vehicles in the robbery.

The men then entered the storage facility and Rodriguezgil
closed its door behind them. Once inside, Raul Cruz, Jr.,
another conspirator, demanded to see whether Rodriguezgil
was concealing anything under his clothes. Rodriguezgil
insisted they do the same and Cruz removed a large butcher
knife and a shank from his person. Rodriguezgil again told
them they were free to back out but they wanted to proceed.
In Rodriguezgil’s estimation, Eshetu assumed something of a
leadership role, assigning his confederates specific tasks for the
robbery. The meeting ended when Rodriguezgil opened the
 5
storage unit gate from within and waiting police officers
arrested the defendants.

THE PROSECUTION, CONVICTION AND POST-TRIAL MOTION

After the arrest, MPD Officer Jason Best drove the Kia to
an MPD facility. There, he searched the car’s interior but not
its glove compartment or trunk. He recovered a bag and some
black clothing. An MPD officer drove the car to an ATF
facility where it was secured pending a second, more thorough
search. After obtaining a warrant, an MPD officer searched
the car on September 6 and recovered, among other items, a
TEC-9 and other pistols, wire, ammunition, magazine clips, a
facemask wrapper and two long machetes.

On September 12, a grand jury indicted Lovo, Sorto and
Eshetu on one count of conspiring to interfere with interstate
commerce by robbery, see 18 U.S.C. § 1951, and a second
count of using, carrying or possessing a firearm during a crime
of violence and aiding and abetting that offense, see 18 U.S.C.
§§ 2, 924(c).3 Lovo and Sorto moved to suppress the physical
evidence found in the Kia. The district court denied the
motion, concluding that the men lacked a reasonable
expectation of privacy in the car and that the police conducted
the second search pursuant to a lawful warrant.

Trial began on May 14, 2014. Rodriguezgil and Castillo
testified for the government. During their testimony, the
prosecution played excerpts—often in Spanish—from video
and audio recordings of their conversations with the
defendants. Each witness repeatedly described the excerpt’s
substance without providing a verbatim translation.

3
Cruz and a fifth defendant, Ariel Flores, were also indicted
but both men pleaded guilty.
 6
Lovo also testified, offering a starkly different version of
events. He asserted that the August 13 meeting was to discuss
potential granite work for “Santos” (Rodriguezgil). But
during that meeting, Rodriguezgil supposedly said his
girlfriend had a proposed drug transaction she wished to
discuss with Lovo. The men therefore arranged a time for
Lovo to meet her. Although Lovo concedes the girlfriend—in
truth, Castillo—proposed a robbery during their August 16
meeting, he claims to have told Rodriguezgil he was
uninterested. But Lovo testified Rodriguezgil nevertheless
asked Lovo to sell him weapons and he agreed.

The jury returned its verdict on May 28, 2014. It found
Lovo and Sorto guilty on both counts but Eshetu guilty only on
the conspiracy charge. In March 2015—nearly ten months
after the jury returned its verdicts—Lovo moved for a
judgment of acquittal or a new trial, arguing, inter alia,
entrapment, outrageous government conduct, selective
prosecution and various arguments pertaining to 18 U.S.C.
§ 924(c), the firearm statute Sorto and Lovo were convicted of
violating. The district court denied the motion, rejecting it as
untimely and largely without merit.

II. ANALYSIS

Lovo, Sorto and Eshetu raise a number of challenges on
appeal. In our view, only four merit discussion.

MOTION TO SUPPRESS

The defendants challenge the district court’s denial of their
motion to suppress evidence removed from the Kia on
September 5. They argue that Best’s search—conducted, as it
was, without a warrant—violated the Fourth Amendment. We
consider the issue de novo, United States v. Holmes, 505 F.3d
 7
1288, 1292 (D.C. Cir. 2007), and find no constitutional
infirmity.

The Fourth Amendment provides that

[t]he right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.

U.S. CONST. amend. IV. “Although the text of the Fourth
Amendment does not specify when a search warrant must be
obtained, th[e] [Supreme Court] has inferred that a warrant
must generally be secured.” Kentucky v. King, 563 U.S. 452,
459 (2011). Nevertheless, this “usual requirement” comes
“subject to a number of exceptions.” Birchfield v. North
Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173 (2016). One is
the automobile exception. It permits the warrantless search of
a car that is “readily mobile” so long as “probable cause exists
to believe it contains contraband[.]” Pennsylvania v. Labron,
518 U.S. 938, 940 (1996) (per curiam).

We believe this exception covers Best’s search. As we
have explained before, “all that is required for an automobile
to be ‘readily mobile’ within the meaning of the automobile
exception is that it is ‘used on the highways, or . . . is readily
capable of such use.’” United States v. Williams, 773 F.3d 98,
105–06 (D.C. Cir. 2014) (ellipses in original) (quoting
California v. Carney, 471 U.S. 386, 392–93 (1985)). Lovo
drove the Kia to the storage facility. He had driven it to meet
Rodriguezgil days before. And Lovo planned to drive it to the
robbery. On these facts, its mobility was plain.
 8
Probable cause also existed to search the car. Probable
cause, we have said, is “more than bare suspicion but . . . less
than beyond a reasonable doubt” or even “a preponderance of
the evidence.” United States v. Burnett, 827 F.3d 1108, 1114
(D.C. Cir. 2016). It is an “objective standard . . . met by
applying a totality-of-the-circumstances analysis.” Id.
(internal quotation marks omitted). And probable cause
abounded on September 5. Rodriguezgil testified Lovo “had
made it clear . . . in all of the prior meetings that they were
ready and they were coming armed.” Joint Appendix 1091.
More than that, Lovo and Sorto had previously spoken about
their access to weapons—Lovo boasted of his TEC-9 and Sorto
expressed a preference for machetes. Lovo also told
Rodriguezgil that he intended to leave guns in the Kia. Under
the totality of the circumstances, the officers had probable
cause to conduct the September 5th search. See United States
v. Sheffield, 832 F.3d 296, 305 (D.C. Cir. 2016) (“If probable
cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents
that may conceal the object of the search.” (internal quotation
marks omitted)).4

4
The government also contends the defendants lacked
standing to contest Best’s search. As we have previously said,
however, “Fourth Amendment ‘standing’ . . . has nothing to do with
jurisdiction[;]” it is “merely an aspect of the substantive merits of a
Fourth Amendment claim[.]” Sheffield, 832 F.3d at 303–04.

The defendants also challenged the officer’s search of the Kia’s
trunk, which uncovered multiple weapons. We affirm the district
court’s denial of the motion to suppress that search as well. At
bottom, the defendants’ argument reduces to a fact dispute about
whether the search warrant was issued before or after the trunk’s
search and we find no clear error in the district court’s finding that
the search of the trunk occurred after the warrant issued.
 9
SECTION 924(C) CONVICTION

Lovo and Sorto also maintain we must vacate their
convictions for using, carrying or possessing a firearm during
a crime of violence. In their view, the portion of the statutory
crime-of-violence definition that affects them—set forth in 18
U.S.C. § 924(c)(3)(B)—is unconstitutionally vague. We
disagree. Before we address the merits, we must respond to
the government’s contention that they have waived the
argument.

The government contends Lovo and Sorto cannot attack
section 924(c)(3)(B)’s constitutionality now because they
failed to do so before trial. For this contention, they rely on
Federal Rule of Criminal Procedure 12, which, before
December 2014, provided that certain enumerated motions
were “waive[d]” if not raised before trial. FED. R. CRIM. P.
12(b)(3), (e) (2013). But the government overlooks important
language included in Rule 12: “[A]t any time while the case is
pending, the court may hear a claim that the indictment . . .
fails . . . to state an offense[.]” Id. 12(b)(3)(B). Challenging
section 924(c)(3)(B)’s constitutionality undoubtedly qualifies.
See, e.g., United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir.
1973) (“The defense of failure of an indictment to charge an
offense includes the claim that the statute apparently creating
the offense is unconstitutional.”).

It is true that this carve-out was deleted in December 2014.
But we conclude that deletion—effected after their May 2014
trial—does not retroactively foreclose their challenge here.
The United States Supreme Court announced that new Rule 12
applies to pending proceedings only “insofar as just and
practicable[.]” Supreme Court Order Amending Fed. R.
 10
Crim. P. 12 (Apr. 25, 2014).5 And because the operative Rule
12 in May 2014 permitted post-trial attacks on section
924(c)(3)(B)’s constitutionality, we do not think it fair to deem
the argument waived. See United States v. Bankston, 820 F.3d
215, 229 (6th Cir. 2016) (It “would . . . be unjust” to prohibit a
defendant’s invocation of Rule 12’s “‘failure to state an
offense’ exception” when pre-amendment Rule 12 “was in
effect during [her] trial and when she filed [her] appeal[.]”).

Turning to the merits, we conclude Lovo’s and Sorto’s
section 924(c) challenge must fail. Their argument is rooted
in the Fifth Amendment, which guarantees no person shall be
“deprived of life, liberty, or property, without due process of
law[.]” U.S. CONST. amend. V. This provision “prohibits the
Government from taking away someone’s life, liberty, or
property under a criminal law so vague that it fails to give
ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement.” Beckles v.
United States, 580 U.S. ___, 137 S. Ct. 886, 892 (2017)
(internal quotation marks omitted). “[T]he void-for-
vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory
enforcement.” Id. (internal quotation marks omitted).

Section 924(c) generally penalizes using, carrying or
possessing a firearm “during and in relation to,” inter alia, a
federally cognizable “crime of violence.” 18 U.S.C
§ 924(c)(1)(A). Its “residual clause” defines a crime of

5
The Rules Enabling Act grants the Supreme Court “the
power to prescribe general rules of practice and procedure . . . for
cases in the United States district courts.” 28 U.S.C. § 2072(a).
The High Court is generally permitted to “fix the extent” to which
amended rules apply to pending proceedings. Id. § 2074(a).
 11
violence to include any felony 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.” Id. § 924(c)(3)(B). 6 We “ordinarily
designate[]” an offense a crime of violence by “looking to [its]
statutory definition . . . , rather than the evidence presented to
prove it.” United States v. Kennedy, 133 F.3d 53, 56 (D.C.
Cir. 1998). This approach is called the “categorical”
approach, Taylor v. United States, 495 U.S. 575, 600 (1990),
and it is used for other statutes as well.

Lovo’s and Sorto’s challenge analogizes to one of those
statutes—the Armed Career Criminal Act of 1984 (ACCA).
See 18 U.S.C. § 924(e). The ACCA imposes a heightened
minimum sentence on a felon who illegally possesses a firearm
and has previously been convicted of three or more qualifying
offenses, including a “violent felony.” Id. § 924(e)(1). The
ACCA defines “violent felony” to include “any crime
punishable by imprisonment for a term exceeding one year . . .
that . . . is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]” Id.
§ 924(e)(2)(B) (emphasis added). The italicized language is
also known as the “residual clause.”

In Johnson v. United States, the United States Supreme
Court struck down the ACCA residual clause as
unconstitutionally vague. 576 U.S. ___, 135 S. Ct. 2551,
2556, 2563 (2015). The Court explained that “[t]wo
features . . . conspire[d] to make it” so. Id. at 2557. For one,
the ACCA created “grave uncertainty about how to estimate

6
Section 924(c) alternatively defines a crime of violence as a
felony that “has as an element the use, attempted use, or threatened
use of physical force against the person or property of another[.]”
18 U.S.C. § 924(c)(3)(A).
 12
the risk posed by a crime” because it “tie[d] the judicial
assessment of risk to a judicially imagined ‘ordinary case’ of a
crime, not to real-world facts or statutory elements.” Id. As
the Court explained, the “ordinary instance of witness
tampering” could “involve offering a witness a bribe”—but,
then again, it could involve threats of violence. Id.

The second problematic feature was “uncertainty about
how much risk it takes for a crime to qualify as a violent
felony.” Id. at 2558. The uncertainty stemmed from the
ACCA’s enumeration of four specific crimes immediately
before the residual clause that were meant to “illustrate the
kinds of crimes that fall within the statute’s scope,” Begay v.
United States, 553 U.S. 137, 142 (2008), and presumably
“provide[d] guidance” in determining whether an unlisted
offense “presents a serious potential risk of physical injury to
another,” Sykes v. United States, 564 U.S. 1, 8 (2011). In
practice, they fell short. The risk inherent in each of the listed
crimes was “far from clear.” Johnson, 135 S. Ct. at 2558
(internal quotation marks omitted). Consequently, the
Supreme Court declared the residual clause void for vagueness.
Id. at 2557.

Lovo and Sorto contend section 924(c)(3)(B) contains the
same defects. We conclude it stands on surer footing,
however, for several reasons. First and most obviously, it
contains no “confusing list” of enumerated crimes. Id. at
2561. The ACCA list made it harder to determine whether a
crime described in the residual clause was a violent felony.
See id. (“The phrase ‘shades of red,’ standing alone, does not
generate confusion or unpredictability; but the phrase ‘fire-
engine red, light pink, maroon, navy blue, or colors that
otherwise involve shades of red’ assuredly does so.”
(emphasis in original) (internal quotation marks omitted)).
Reviewing courts had to “analogiz[e] the level of risk involved
 13
in a defendant’s conduct” to crimes that were themselves
dissimilar. United States v. Taylor, 814 F.3d 340, 377 (6th
Cir. 2016). Not here. A court applying section 924(c)(3)(B)
need only assess the “substantial risk” of force in a single
crime, an easier task.

Second, section 924(c)(3)(B) calls for a different sort of
risk assessment from that of the ACCA. Unlike the ACCA,
which asks whether an offense presents a “potential risk of
physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii),
section 924(c)(3)(B) requires a “substantial risk that physical
force . . . may be used in the course of committing the
offense[,]” id. § 924(c)(3)(B) (emphasis added). “[I]njury”
and “force” are very different things. Injury is often a crime’s
consequence; force, its method of execution. Estimating the
risk of physical injury can be difficult. See Johnson, 135 S.
Ct. at 2558 (“Does the ordinary burglar invade an occupied
home by night or an unoccupied home by day?”). But force is
often planned. The facts of this case bear witness: Castillo
testified that she understood Lovo’s robbery plan, as described
on August 16, to call for “utiliz[ing] as much . . . force as [his
crew] could [muster] in order to make sure that they weren’t
hurt.” Joint Appendix 790 (emphasis added). Force, then,
was no mere side effect; it was the prescription. This is
telling. A court can forecast with relative ease whether a
crime “by its nature” presents a “substantial risk” that force
“may” be used.

Third, section 924(c)(3)(B) contains a temporal limitation
not included in the ACCA. Section 924(c)(3)(B) considers the
“risk that physical force . . . may be used in the course of
committing the offense.” 18 U.S.C. § 924(c)(3)(B) (emphasis
added). The ACCA more broadly asks if the offense
“otherwise involves conduct that presents a serious potential
risk of physical injury to another[.]” Id. § 924(e)(2)(B)(ii).
 14
“[I]n the course of” is important narrowing language. It
ensures that a court will confine its analysis to the conduct that
constitutes the offense. See Leocal v. Ashcroft, 543 U.S. 1, 10
(2004) (language mirroring section 924(c)(3)(B) in different
statute “relates not to the general conduct or to the possibility
that harm will result from a person’s conduct, but to the risk
that the use of physical force against another might be required
in committing a crime”). Determining whether the offense
itself involves force is far easier than puzzling over a crime’s
epilogue.

These differences may seem subtle but experience
confirms their significance. The Supreme Court noted
“repeated attempts and repeated failures to craft a principled
and objective standard out of the [ACCA’s] residual clause.”
Johnson, 135 S. Ct. at 2558. By contrast, section 924(c)(3)(B)
has no such history. United States v. Hill, 832 F.3d 135, 148
(2d Cir. 2016). We cannot chalk this up to happenstance. A
unanimous Supreme Court determined that driving under the
influence of alcohol was not a “crime of violence” under 18
U.S.C § 16(b), a statutory provision nearly identical to section
924(c)(3)(B). See Leocal, 543 U.S. at 11. But fewer than
four years later, a five-justice majority and a new extratextual
test were needed to reach the same conclusion under the
ACCA. See Begay, 553 U.S. at 145, 148. We think the
lesson is clear: Section 924(c)(3)(B) and the ACCA are
different statutory provisions whose different words address
different conduct. Mindful of our obligation to “accord
congressional legislation a presumption of constitutionality,”
Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1069 (D.C. Cir.
2003) (internal quotation marks omitted), we conclude that
section 924(c)(3)(B) does not violate the Fifth Amendment.

We recognize that both residual clauses require a court to
employ the categorical approach. Although we also recognize
 15
that “[t]he vagueness of the [ACCA] residual clause rest[ed] in
large part on its operation under the categorical approach,”
Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 1262
(2016), Johnson itself makes clear that the categorical
approach was not the only problem. “Two features of the
[ACCA] residual clause conspire[d] to make it
unconstitutionally vague.” Johnson, 135 S. Ct. at 2557
(emphasis added). As we have explained, section
924(c)(3)(B) lacks at least one—an indeterminate risk analysis.
Johnson also expressly declined to “jettison . . . the categorical
approach” in assessing the ACCA residual clause. Id. at 2562.
Had the Court thought the categorical approach necessarily
produced vagueness, why not jettison it? Cf. Screws v. United
States, 325 U.S. 91, 98 (1945) (“Th[e] [Supreme] Court has
consistently favored that interpretation of legislation which
supports its constitutionality.”).

We must also determine whether section 924(c)(3)(B)
classifies conspiracy to commit a Hobbs Act robbery as a
“crime of violence.” We conclude it does. A Hobbs Act
robbery conspiracy has three elements—(1) an agreement to
commit Hobbs Act robbery between two or more persons, (2)
the defendant’s knowledge of the conspiratorial goal and (3)
the defendant’s voluntary participation in furthering the goal.
In re Pinder, 824 F.3d 977, 979 n.1 (11th Cir. 2016); accord
United States v. Carr, 261 F. App’x 560, 563 (4th Cir. 2008);
United States v. Si, 343 F.3d 1116, 1123–24 (9th Cir. 2003).
Ample authority treats a Hobbs Act robbery conspiracy as a
crime of violence under the residual clause. See United States
v. Turner, 501 F.3d 59, 67 (1st Cir. 2007) (collecting cases).
Considering the offense’s elements, we conclude that makes
good sense. As our sister circuit has explained, “[a Hobbs Act
robbery] conspiracy, by its very nature, is a collective criminal
effort where a common goal unites two or more criminals.”
United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996). And
 16
“[s]uch a meeting of the minds enhances the likelihood that the
planned crime will be carried out.” Id. “[B]y its nature,”
therefore, a Hobbs Act robbery conspiracy “involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.” 18 U.S.C. § 924(c)(3)(B). 7 Accordingly, we
affirm Lovo’s and Sorto’s section 924(c)(3)(B) convictions.

VIDEO AND AUDIO RECORDINGS EVIDENCE

The defendants’ next challenge focuses on the video and
audio recordings of their meetings with law enforcement. The
recordings were often in Spanish and unaccompanied by
English translations. Nevertheless, they were played for the
jury and Rodriguezgil and Castillo testified as to their contents.
The defendants contend this was improper because it allowed
Rodriguezgil and Castillo to, in effect, summarize the meaning
of otherwise unintelligible conversations.

The defendants did not object to the recordings’ admission
at trial and, so, our review is limited to correcting plain error
only. See FED. R. CRIM. P. 52(b). “Pursuant to plain error
review, an appellant must demonstrate (1) that there was an
error, (2) that the error was clear or obvious, (3) that it affected
the appellant’s substantial rights, and (4) that it seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Gooch, 665 F.3d 1318,

7
Even if we did not use the categorical approach, we would
nonetheless conclude that Lovo’s and Sorto’s offense—as they
committed it—was a crime of violence. The men planned a
robbery, which crime necessarily involves at least a threat of force.
See 18 U.S.C. § 1951(b)(1). They met Rodriguezgil with a car full of
weapons. And they repeatedly declared their desire to see the plot
through. A “substantial risk” of “physical force against [another]
person” plainly inhered in their conduct.
 17
1332 (D.C. Cir. 2012) (citing United States v. Olano, 507 U.S.
725, 732–37 (1993)).

Here, we believe the district court erred but not plainly so.
Generally speaking, the decision to admit tape recordings “falls
within the sound discretion of the trial court.” United States
v. White, 116 F.3d 903, 920 (D.C. Cir. 1997) (per curiam)
(internal quotation marks omitted). We have cautioned,
however, that a recording must be “authentic, accurate and
trustworthy,” United States v. Dale, 991 F.2d 819, 842 (D.C.
Cir. 1993) (per curiam), and “audible and comprehensible
enough for the jury to consider the contents,” United States v.
Slade, 627 F.2d 293, 301 (D.C. Cir. 1980). We do not think
the untranslated Spanish-language audio sufficed. See United
States v. Gutierrez, 757 F.3d 785, 788 (8th Cir. 2014)
(“[W]here the evidence is a foreign-language recording, the
jury usually cannot understand the audio recording.”). As
other courts have recognized, “[t]ranscripts of recorded
conversations are a virtual necessity when the conversations
take place in Spanish and are admitted into evidence before an
English-speaking jury.” United States v. Nunez, 532 F.3d 645,
651 (7th Cir. 2008). The district court therefore erred in
admitting the audio recordings of the meetings without
accompanying English-language transcripts.

Nevertheless, we cannot say the error meets the stringent
plain-error standard. Gooch, 665 F.3d at 1332. A recording
may be incomprehensible for any number of reasons. Flaws
like garbled audio are often irremediable. But foreign-
language audio is of a different character. It can readily be
understood by speakers of that language. And in this case,
numerous Spanish speakers testified. Through cross-
examination, defense counsel had an opportunity to probe
Rodriguezgil’s and Castillo’s understanding of the recordings’
contents. Moreover, the meetings were not conducted
 18
exclusively in Spanish; portions were in English. In addition,
the jury had before it video footage of certain critical events—
among them, Lovo’s September 2 inspection of Rodriguezgil’s
SUV and the September 5 storage-facility meeting. 8

INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment guarantees a criminal defendant the
right to reasonably effective legal assistance. Roe v. Flores-
Ortega, 528 U.S. 470, 476 (2000). The defendants contend
they were denied this right: First, they contend their counsel
acted ineffectively in failing to request an entrapment
instruction. Second, they argue their counsel should have
objected to the Spanish-language recordings’ admission.

Establishing ineffective assistance of counsel “is never an
easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
The defendant who succeeds “must show both that counsel
performed deficiently and that counsel’s deficient performance
caused him prejudice.” Buck v. Davis, 580 U.S. ___, 137 S.
Ct. 759, 775 (2017). We have described this inquiry as “fact-
intensive.” United States v. Rashad, 331 F.3d 908, 909 (D.C.
Cir. 2003). And as the Supreme Court has recognized, the
district court is “the forum best suited to developing the facts
necessary to determining the adequacy of representation during
an entire trial.” Massaro v. United States, 538 U.S. 500, 505
(2003). For that reason, on direct appeal we do not ordinarily
decide an ineffective-assistance claim in the first instance.
Rashad, 331 F.3d at 909–10. Instead, our “typical practice” is
to remand colorable ineffective-assistance claims to the district
court for its consideration. United States v. Knight, 824 F.3d
1105, 1112 (D.C. Cir. 2016).

8
We do not think any alleged sound-quality problem with the
recordings was serious enough to make their admission plain error.
 19
We follow that course here. Entrapment is a defense
comprising “two related elements,” viz., “government
inducement of the crime, and a lack of predisposition on the
part of the defendant to engage in the criminal conduct.”
Mathews v. United States, 485 U.S. 58, 63 (1988). On this
record, we do not know why defense counsel declined to pursue
one. The trial record does not conclusively show the
defendants’ entitlement vel non to relief and we therefore must
remand. United States v. Bell, 708 F.3d 223, 225 (D.C. Cir.
2013).

So too with the defendants’ contention that counsel should
have objected to the recordings’ admission. The record does
not contain sufficient evidence for us to weigh counsel’s
performance or any resulting prejudice. As our earlier
discussion makes clear, we believe an objection to the tapes’
admission could have been upheld. But that does not
necessarily mean counsel was deficient in failing to object.
Cf. United States v. Vyner, 846 F.3d 1224, 1227 (D.C. Cir.
2017) (“To establish deficient performance, . . . the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.”
(internal quotation marks omitted)). Nor is the extent of
resultant prejudice—if any—clear from the record. We
therefore remand for consideration of this challenge as well. 9

9
Although we have considered the defendants’ remaining
arguments, we find them without merit. Among other arguments,
they contend that the district court should have entered a judgment
of acquittal or ordered a new trial because the government’s “reverse
sting” investigatory technique amounted to selective enforcement.
See Appellants’ Br. 50–52 (citing United States v. Black, 750 F.3d
1053 (9th Cir. 2014) (Reinhardt, J., dissenting from denial of
rehearing en banc)). When raised in March 2015, this contention
was plainly untimely. See United States v. Whitfield, 649 F. App’x
 20
For the foregoing reasons, we affirm the car-search,
section 924(c) and tape-recordings claims and remand the
ineffective-assistance-of-counsel claim.

So ordered.

192, 196 (3d Cir. 2016) (selective enforcement claim must be raised
before trial (citing FED. R. CRIM. P. 12(b)(3)(A) (2013))). On
remand, the defendants may argue that their counsel was
constitutionally ineffective for failing to timely pursue this argument.
MILLETT, Circuit Judge, concurring in part and concurring in
the judgment:

I join all of the court’s opinion except its analysis of the
Defendants’ challenge to their convictions under 18 U.S.C.
§ 924(c). With respect to that issue, I would take a somewhat
different path to rejecting the constitutional challenge and to
concluding that a Hobbs Act conspiracy to commit robbery
qualifies as a crime of violence under Section 924(c).

A

As the court’s opinion explains, this case arises in the wake
of the Supreme Court’s holding in Johnson v. United States,
135 S. Ct. 2551 (2015), that the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
is unconstitutionally vague. The question before us is whether
the Defendants’ convictions under the residual clause of
Section 924(c) must meet the same fate. Section 924(c)
imposes a mandatory five-year minimum sentence for the use
of a firearm in the commission of a “crime of violence.” Id.
§ 924(c)(1)(A)(i). The statute then defines “crime of violence”
as a federal felony that:

(A) has as an element the use, attempted use, or
threatened use of physical force against the
person or property of another, or

(B) * * * by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense.

18 U.S.C. § 924(c)(3); see id. § 924(c)(1)(A) (limiting the
provision to federal offenses). The Defendants were convicted
under subsection (B), which is commonly referred to as the
“residual clause,” and they argue that it suffers from the same
 2
vagueness problems that rendered ACCA’s residual clause
unconstitutional.

In my view, the answer to this question is far closer than
the court’s opinion indicates. The Achilles’ heel of ACCA was
that statute’s use of the categorical approach. See Welch v.
United States, 136 S. Ct. 1257, 1262 (2016) (“The residual
clause failed not because it adopted a ‘serious potential risk’
standard but because applying that standard under the
categorical approach required courts to assess the hypothetical
risk posed by an abstract generic version of the offense.”). The
Supreme Court concluded in Johnson that “[t]wo features of
the residual clause conspire to make it unconstitutionally
vague.” 135 S. Ct. at 2557. First, “the residual clause leaves
grave uncertainty about how to estimate the risk posed by a
crime.” Id. That is so because the categorical approach “ties
the judicial assessment of risk to a judicially imagined
‘ordinary case’ of a crime, not to real-world facts or statutory
elements.” Id. Second, “the residual clause leaves uncertainty
about how much risk it takes for a crime to qualify as a violent
felony.” Id. at 2558. Because of that “combin[ed]
indeterminacy about how to measure the risk posed by a crime
with indeterminacy about how much risk it takes for the crime
to qualify as a violent felony,” ACCA’s residual clause
“produce[s] more unpredictability and arbitrariness than the
Due Process Clause tolerates.” Id.

We analyze Section 924(c)’s residual clause through that
same troublesome categorical lens, United States v. Kennedy,
133 F.3d 53, 56 (D.C. Cir. 1998), and that extension of the
categorical approach to Section 924(c)’s residual clause plainly
enfeebles the constitutionality of that statute for the same two
reasons given in Johnson. Nevertheless, I conclude that
Section 924(c) does not suffer from quite the same amount of
 3
“unpredictability and arbitrariness” as ACCA’s residual clause,
for four reasons.

First, the Supreme Court has suggested as much. That
matters to a lower federal court like us. In Leocal v. Ashcroft,
543 U.S. 1 (2004), the Supreme Court addressed an
indistinguishably worded provision, 18 U.S.C. § 16(b). 1 In
holding that Section 16(b)’s “crime of violence” residual clause
did not extend to driving under the influence, the Court
emphasized the statute’s cabined reach, holding that it applies
only to “the risk that the use of physical force against another
might be required in committing a crime.” Leocal, 543 U.S. at
10. The Court further explained that, unlike a statute the
application of which turns on a risk of injury to third persons
(such as ACCA), the “substantial risk” in Section 16(b) “relates
to the use of force” “in the course of committing the offense[,]”
and “not to the possible effect of a person’s conduct.” Id. at 10
& n.7.

To be sure, the Supreme Court is currently considering a
constitutional vagueness challenge to Section 16(b) in the wake
of Johnson. See Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), cert. granted, 85 U.S.L.W. 3114 (U.S. Sept. 29, 2016)
(No. 15–1498). For now, though, Leocal’s recognition--that
courts may more manageably evaluate the risk of force being
used in the commission of a crime than they could an ACCA-
like inquiry into the risk of injury to third parties--carries
weight in resolving the Defendants' challenge.

1
That provision provides that “[t]he term ‘crime of violence’
means * * * (b) any other offense that is a felony and 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.” 18 U.S.C. § 16(b).
 4
Second, unlike ACCA’s residual clause, Section 924(c)’s
residual clause does not contain a list of comparator crimes.
Compare 18 U.S.C. § 924(e)(2)(B)(ii) (defining a violent
felony as one that “is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”), with 18
U.S.C. § 924(c)(3)(B) (defining a crime of violence as one
“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”). The Supreme Court in
Johnson was explicit that the enumerated offenses in ACCA’s
residual clause made things constitutionally worse. See 135 S.
Ct. at 2558 (“By asking whether the crime ‘otherwise involves
conduct that presents a serious potential risk,’ moreover, the
residual clause forces courts to interpret ‘serious potential risk’
in light of the four enumerated crimes—burglary, arson,
extortion, and crimes involving the use of explosives. These
offenses are ‘far from clear in respect to the degree of risk each
poses.’”) (emphasis in original and citation omitted).

Indeed, in distinguishing ACCA’s residual clause from the
“dozens of federal and state criminal laws [that] use terms like
‘substantial risk, ‘grave risk,’ and ‘unreasonable risk,” the
Court explained that “[a]lmost none of the cited law links a
phrase such as ‘substantial risk’ to a confusing list of
examples.” Id. at 2561 (emphasis added). Section 924(c)
likewise is not plagued by such an unwieldy list of comparator
offenses.

Third, the role that the recondite categorical analysis
fulfills for Section 924(c) is far more limited than in ACCA
because Section 924(c) applies only to federal crimes.
Compare 18 U.S.C. § 924(e)(1) (explaining that ACCA's
sentencing enhancement applies to “a person who violates
section 922(g) of this title and has three convictions by any
 5
court referred to in section 922(g)(1)”) (emphasis added), and
id. § 922(g)(1) (“It shall be unlawful for any person who has
been convicted in any court”) (emphasis added), with id.
§ 924(c)(1)(A) (applying to crimes of violence “for which the
person may be prosecuted in a court of the United States”)
(emphasis added). See also United States v. Gonzalez, 520
U.S. 1, 5 (1997) (“Congress expressly limited the phrase ‘any
crime’ [in Section 924(c)] to only federal crimes[.]”).

As a result, in determining whether there is a substantial
risk that physical force will be used in the commission of a
crime, federal courts need only to analyze the nature of that
particular federal crime; they need not try and discern some sort
of cross-jurisdictional common character for an offense that
could be articulated fifty different ways by fifty different
States, as ACCA required. See, e.g., Sykes v. United States,
564 U.S. 1 (2011). Section 924(c), in other words, simply does
not require courts to overlay a categorical analysis on top of
such broad variation in the nature, elements, and contours of
the predicate crimes, and courts will confront less variation in
how offense conduct is commonly manifested. The courts will
also be dealing with a body of federal law with which they are
more experienced. 2

2
Every criminal statute with which the Supreme Court wrestled
in its “attempt[s] to discern [the] meaning” of ACCA’s residual
clause was a state criminal statute. See Johnson, 135 S. Ct. at 2556
(involving “Minnesota’s offense of unlawful possession of a short-
barreled shotgun”); see also Sykes, 564 U.S. at 4 (involving
“Indiana’s ‘resisting law enforcement’ law”); Chambers v. United
States, 555 U.S. 122, 124–125 (2009) (involving Illinois’ “failing to
report to a penal institution” statute) (alteration omitted); Begay v.
United States, 553 U.S. 137, 140 (2008) (involving New Mexico’s
driving under the influence of alcohol statute); James v. United
States, 550 U.S. 192, 195 (2007) (involving Florida’s attempted
burglary statute).
 6

Fourth, determining whether a criminal offense entails a
substantial risk that physical force will be used is not an
uncommon legal inquiry, and thus there is already
jurisprudential scaffolding that gives structure to the Section
924(c) inquiry. See 18 U.S.C. § 3156(a)(4)(B) (defining a
“crime of violence” for the purposes of release and detention
statutes as “any other offense that is a felony and 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”); 18 U.S.C. § 521 (defining a
sentencing enhancement for persons that are members of a
criminal street gang and have been convicted within five years
of “any Federal or State felony offense that by its nature
involves a substantial risk that physical force against the person
of another may be used in the course of committing the
offense”). Indeed, the Supreme Court in Johnson expressed no
“doubt [about] the constitutionality of laws that call for the
application of a qualitative standard such as ‘substantial risk’
to real-world conduct,” noting that “‘the law is full of instances
where a man’s fate depends on his estimating rightly * * *
some matter of degree[.]’” 135 S. Ct. at 2561 (quoting Nash v.
United States, 229 U.S. 373, 377 (1913)).

For those reasons, I conclude that Section 924(c)’s residual
clause is not unconstitutionally vague under Johnson.

B

The court’s opinion also holds that Hobbs Act conspiracy
to commit robbery qualifies as a crime of violence within the
meaning of Section 924(c). Again I agree, but for somewhat
different reasons.
 7
Under this court’s precedent, by which this panel is bound,
in a Hobbs Act conspiracy, we may look to the object of the
conspiracy—either robbery or extortion—to determine if the
conspiracy itself is a crime of violence. See Kennedy, 133 F.3d
at 57–58; see also United States v. Turner, 501 F.3d 59, 67 (1st
Cir. 2007) (“[T]he object of the conspiracy is the critical
determinant of its nature.”).

The object of the conspiracy here was robbery, and the
Hobbs Act defines its robbery offense as the taking of property
from another “by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his person or
property[.]” 18 U.S.C. § 1951(b)(1). As such, Hobbs Act
robbery itself would seem to be a crime of violence under
Section 924(c)’s elements clause, 18 U.S.C. § 924(c)(3)(A),
without any need to resort to the residual clause. See Kennedy,
133 F.3d at 58. Because the object of the conspiracy
necessarily requires force or the threat of force for its
completion, an agreement to complete that offense also
involves at least a substantial risk that force will be involved.
See United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996)
(“We have held in several circumstances that conspiracy is
itself a crime of violence when its objectives are violent crimes
or when its members intend to use violent methods to achieve
its goals.”); see also United States v. Brown, 200 F.3d 700, 706
(10th Cir. 1999) (“We recognize that conspiracy punishes
collective criminal agreement rather than the substantive
offense. However, at a minimum, an agreement to accomplish
the statutory elements of carjacking necessarily involves a
substantial risk of physical force against the person or property
of a victim[.]”) (citation omitted); cf. Leocal, 543 U.S. at 10
(explaining that language analogous to Section 924(c)’s
residual clause “covers offenses that naturally involve a person
acting in disregard of the risk that physical force might be used
against another in committing an offense”).
 8

Given this circuit’s precedent, I join the court’s judgment
that conspiracy to commit Hobbs Act robbery is a crime of
violence under Section 924(c).