Harmless Guidelines-Grouping Error and Discretion to Impose Consecutive Sentences for Hobbs Act Conspiracy and Attempted Robbery

1. Introduction

In United States v. Xavier Holley (4th Cir. Apr. 20, 2026) (unpublished), the Fourth Circuit affirmed a 480-month sentence imposed at resentencing after two firearm convictions were vacated in light of United States v. Taylor, 142 S. Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not categorically a “crime of violence.”

The underlying conduct involved two attempted pawn-shop robberies; the second attempt resulted in a clerk’s murder by a co-conspirator using Holley’s gun while Holley waited as the getaway driver. After the vacatur of Holley’s 18 U.S.C. § 924(c) and § 924(j) counts, the district court resentenced him on the remaining Hobbs Act attempt and conspiracy convictions.

On appeal, Holley challenged (i) the Guidelines grouping analysis, (ii) the imposition of a consecutive sentence for the conspiracy count, (iii) the district court’s handling of § 3553(a)(6) disparity concerns, and (iv) asserted ineffective assistance of counsel at sentencing due to an alleged conflict of interest.

2. Summary of the Opinion

The Fourth Circuit affirmed, holding in substance that:

Any potential error in grouping under U.S.S.G. § 3D1.2 was harmless because it did not change the total offense level, the Guidelines recommendation remained “life” (capped by statute at 720 months), and nothing in the record suggested the sentence would have differed.
The district court had authority under 18 U.S.C. § 3584(a) to run the conspiracy term consecutive to the attempted robbery terms, consistent with United States v. Oliver, 133 F.4th 329 (4th Cir. 2025), and did not abuse its discretion in doing so.
The district court did not plainly err by failing to sua sponte consult national sentencing statistics not presented below, and permissibly considered Holley’s lack of remorse when assessing disparity among co-defendants.
Holley failed to show ineffective assistance based on a conflict of interest because he did not demonstrate an adverse effect on counsel’s sentencing performance.

3. Analysis

3.1 Precedents Cited

A. Sentencing framework and standards of review

Gall v. United States, 552 U.S. 38 (2007): The court used Gall’s two-step framework—first procedural reasonableness (including Guidelines calculation and § 3553(a) consideration), then substantive reasonableness under abuse-of-discretion review.
United States v. Martinovich, 810 F.3d 232 (4th Cir. 2016): The opinion relied on Martinovich for the proposition that procedural sentencing errors are subject to harmless-error review.
United States v. Baronette, 46 F.4th 177 (4th Cir. 2022): The court applied Baronette’s harmlessness test for Guidelines error—whether the same result would have been reached and the sentence would remain reasonable.
United States v. Louthian, 756 F.3d 295 (4th Cir. 2014): The court noted the presumption of substantive reasonableness for within- or below-Guidelines sentences, which Holley did not rebut.

B. Authority to impose consecutive sentences

Setser v. United States, 566 U.S. 231 (2012): Cited for the general rule that district courts have discretion to impose concurrent or consecutive terms when sentencing on multiple offenses.
United States v. Oliver, 133 F.4th 329 (4th Cir. 2025): Central to rejecting Holley’s “no authority” argument; Oliver held consecutive sentences are lawful for Hobbs Act conspiracy and attempted Hobbs Act robbery that was the object of the conspiracy.

C. Disparity analysis and plain-error review

United States v. Walton, 145 F.4th 476 (4th Cir. 2025): Used to frame Holley’s unpreserved national-statistics argument as reviewed only for plain error.
United States v. Abed, 3 F.4th 104 (4th Cir. 2021): Supported the court’s skepticism about national sentencing statistics, emphasizing individualized sentencing and describing reliance on such statistics as “treacherous.”

D. Conflict-of-interest ineffective assistance

Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001) (en banc), aff'd, 535 U.S. 162 (2002): Provided the governing standard—defendant must show an actual conflict and that it adversely affected counsel’s performance; also supplied the three-part “adverse effect” test applied here.
Cuyler v. Sullivan, 446 U.S. 335 (1980): Source of the “actual conflict” plus “adverse effect” formulation.
United States v. Glover, 8 F.4th 239 (4th Cir. 2021): Explained one paradigm for conflicts—counsel’s incentive not to argue their own serious misconduct—used to frame Holley’s claimed conflict.
United States v. Nicholson, 611 F.3d 191 (4th Cir. 2010): Reinforced that adverse effect is not presumed even if a conflict exists.

3.2 Legal Reasoning

A. Guidelines grouping: error assumed, but harmless

Holley argued the district court violated U.S.S.G. § 3D1.2 by creating two groups (separating the two attempted robberies) rather than one, while also grouping the conspiracy count with each attempt “individually.” The Fourth Circuit did not resolve whether the grouping analysis was correct; instead it treated the issue through harmless error.

The harmlessness logic was largely arithmetic and record-based:

Under the court’s approach, the total offense level was 45, which is above the Guidelines cap of 43.
Even if all three counts were in a single group, the level would still be driven by the most serious count and remain 45 (citing U.S.S.G. § 3D1.3(a)).
Either way, the Guidelines recommendation remained “life,” but limited by statutory maxima to 720 months.
The district court did not rely on the existence of multiple groups to select the sentence; instead, it emphasized the crime’s seriousness, criminal history, and lack of remorse, and varied substantially downward from 720 months to 480 months.

This is an important application of United States v. Baronette: if the Guidelines dispute cannot affect the recommended range (or, as here, the effective recommendation), and the record shows the district court would not have sentenced differently, the appellate court can affirm without deciding the Guidelines question.

B. Consecutive sentencing: statutory authority plus Guidelines-consistent discretion

Holley argued that the district court could not (or should not) make the conspiracy sentence consecutive to the attempt sentences. The court resolved authority first: 18 U.S.C. § 3584(a) generally permits consecutive or concurrent terms, and United States v. Oliver specifically approved consecutive terms for Hobbs Act conspiracy and attempted robbery.

Holley invoked § 3584(a)’s limitation that “the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt.” The court’s response was categorical: the “sole objective” clause did not apply because “conspiracy is not the sole objective of attempted robbery.”

On discretion, the court emphasized the interplay of 18 U.S.C. § 3584(b) (requiring consideration of the Guidelines and § 3553(a)) and the Guidelines’ direction in U.S.S.G. § 5G1.2(d) to run sentences consecutively to the extent needed to reach the total punishment (here, 720 months). The district court imposed one consecutive term, but still did not “stack” all counts to reach 720 months—supporting the conclusion that it reasonably exercised discretion while remaining attentive to the Guidelines structure.

The court acknowledged Holley’s policy argument based on 28 U.S.C. § 994(l)(2) (Congress’s direction to reflect the “general inappropriateness” of consecutive terms for conspiracy and its sole-object offense), but treated it as insufficient here because Holley did not challenge § 5G1.2(d)’s validity or argue the district court should vary from it on policy grounds.

C. Sentencing disparities: no duty to search statistics; individualized comparisons permitted

The district court addressed 18 U.S.C. § 3553(a)(6) and compared Holley to co-conspirators. On appeal, Holley faulted the court for not consulting national statistics. Applying United States v. Walton, the Fourth Circuit reviewed for plain error and found none: the district court had no obligation to independently locate and apply statistical comparisons never presented by the parties. United States v. Abed further underwrote skepticism toward statistics untethered to individualized facts.

Holley also objected to the court’s use of remorse/acceptance-of-responsibility differences when comparing defendants. The Fourth Circuit treated this as a permissible factual and discretionary determination: the district court did not clearly err in finding Holley minimized responsibility and lacked remorse, and it was not an abuse of discretion to weigh that in the § 3553(a) mix.

D. Conflict of interest at sentencing: adverse effect required and not shown

Holley claimed his lawyer (who also represented him at trial) had a conflict because counsel suggested it could be a “conflict of interest” to file a new-trial motion implying counsel “missed” an issue at trial. The Fourth Circuit assumed arguendo there might be a conflict, but affirmed because Holley failed the “adverse effect” requirement under Mickens v. Taylor and Cuyler v. Sullivan, reinforced by United States v. Nicholson.

Applying Mickens’ three-part adverse-effect test, the court found:

Holley did not identify a plausible, objectively reasonable alternative sentencing strategy “clearly suggested by the circumstances.”
He did not link any omitted strategy to the alleged conflict; his assertions were speculative (e.g., counsel was “distracted”).
The record suggested the opposite: counsel obtained a continuance, investigated the issue, and used resulting evidence to argue for mitigation; the outcome was a sentence 20 years below the Guidelines recommendation.

3.3 Impact

Although unpublished and expressly nonbinding, the decision has practical significance in four ways:

Guidelines litigation triage: It illustrates how the Fourth Circuit may affirm without deciding a disputed Guidelines issue when the total offense level and effective recommendation cannot change and the record supports harmlessness—encouraging parties to show concrete sentencing consequences, not just formal error.
Consecutive-sentence authority after vacatur resentencings: In the post-United States v. Taylor landscape, resentencings often require judges to reassemble “total punishment” on remaining counts; this opinion reinforces that consecutive terms remain an available tool under 18 U.S.C. § 3584, particularly when aligned with U.S.S.G. § 5G1.2(d) and supported by § 3553(a) reasoning.
Disparity arguments: The opinion signals that statistical disparity arguments are most effective when presented in the district court with context; appellate courts are unlikely to find plain error where the judge did not independently consult extra-record statistics.
Conflict claims at sentencing: Even where counsel flags a potential conflict in adjacent proceedings (e.g., a new-trial motion implicating trial performance), defendants must still identify a concrete alternative sentencing course and causally connect its omission to the conflict.

4. Complex Concepts Simplified

Grouping (U.S.S.G. § 3D1.2): A Guidelines method for combining multiple counts that cause “substantially the same harm” to avoid double-counting; grouping affects the combined offense level.
Harmless Guidelines error: Even if the judge made a technical Guidelines mistake, the sentence can be affirmed if the mistake did not change the outcome (or would not have changed it) and the sentence remains reasonable.
Consecutive vs. concurrent sentences (18 U.S.C. § 3584): Concurrent terms run at the same time; consecutive terms stack back-to-back. Federal judges generally have discretion to choose, guided by the Guidelines and § 3553(a).
Plain-error review (Fed. R. Crim. P. 52(b)): A demanding appellate standard for issues not raised below; the error must be clear/obvious and affect substantial rights, among other requirements.
Conflict-of-interest ineffective assistance (Cuyler/Mickens): Not every tension or potential conflict warrants reversal. The defendant must show an actual conflict and that it adversely affected counsel’s performance (i.e., it caused counsel to forgo a reasonable strategy).

5. Conclusion

United States v. Xavier Holley affirms a lengthy resentencing in a post-United States v. Taylor posture and clarifies, in practical terms, how appellate review operates when (i) an asserted grouping error does not change the offense level or effective Guidelines recommendation, (ii) the district court uses 18 U.S.C. § 3584 and U.S.S.G. § 5G1.2(d) to impose a partially consecutive sentence to reach a tailored total punishment, (iii) disparity arguments depend on what was presented below and individualized comparisons, and (iv) conflict-based ineffective assistance claims require a concrete showing of adverse effect, not speculation.