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United States v. Mack

United States Court of Appeals, Fourth Circuit

May 1, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JERROD LAQON MACK, Defendant-Appellant.

          Argued: December 8, 2016

         Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:15-cr-00255-CCE-1)

         ARGUED:

          Mireille P. Clough, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North Carolina, for Appellant.

          Kyle David Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

         ON BRIEF:

          Louis C. Allen, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant.

          Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

          Before NIEMEYER, KING, and AGEE Circuit Judges.

          NIEMEYER, Circuit Judge.

         After Jerrod Laqon Mack pleaded guilty to possession of a stolen firearm knowing that it was stolen, in violation of 18 U.S.C. § 922(j) and § 924(a)(2), the district court sentenced him to 70 months' imprisonment, a sentence at the low end of the range recommended by the Sentencing Guidelines. In calculating the recommended Guidelines range, the court applied U.S.S.G. § 2K2.1(a)(2) (2014), which provided for a base offense level of 24 for the firearm offense at issue when the defendant has "at least two [prior] felony convictions of either a crime of violence or a controlled substance offense." The court relied on Mack's two prior North Carolina convictions for (1) attempted first-degree burglary and conspiracy to commit first-degree burglary, and (2) felony breaking and entering, concluding that they were crimes of violence as defined in U.S.S.G. § 4B1.2(a) (2014). With respect to the first of these prior convictions, the court relied on the commentary to § 4B1.2, which provided that the term "'[c]rime of violence' . . . include[s] the offense of . . . conspiring[] and attempting to commit such offenses." Id. cmt. n.1.

         Challenging his sentence on appeal, Mack argued that because conspiracies and attempts to commit burglary do not constitute the completed crime of burglary, as enumerated in the text of § 4B1.2(a), the Guidelines Commentary relied on by the district court to include conspiracies and attempts must be a construction of § 4B1.2(a)(2)'s "residual clause." The residual clause includes in the definition of crime of violence any crime involving "conduct that presents a serious potential risk of physical injury to another." He reasoned that because the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015), found the same residual-clause language, as contained in the Armed Career Criminal Act of 1984 ("ACCA"), unconstitutionally vague, the residual clause in § 4B1.2(a)(2) is likewise unconstitutionally vague, thus invalidating the text for which the Commentary provides explanation.

         The government conceded that Johnson prevented the district court from relying on the residual clause in U.S.S.G. § 4B1.2(a)(2). But it contended that Mack's prior conviction for attempting and conspiring to commit first-degree burglary nonetheless qualified as a crime of violence because the Commentary's inclusion of inchoate offenses such as conspiracies and attempts was a valid construction of the broader term "crime of violence, " rather than necessarily being an interpretation of the residual clause.

         After we heard oral argument, the Supreme Court decided Beckles v. United States, 137 S.Ct. 886 (2017), which held that the Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause and therefore that § 4B1.2(a)(2)'s residual clause is not void for vagueness. Based on Beckles, we now reject Mack's vagueness challenge to ยง 4B1.2(a). Concluding that Mack's North Carolina conviction for attempting and conspiring to ...


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