Argued: December 8, 2016
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)
Mireille P. Clough, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Winston-Salem, North Carolina, for Appellant.
David Pousson, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
C. Allen, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant.
Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
NIEMEYER, KING, and AGEE Circuit Judges.
NIEMEYER, Circuit Judge.
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.
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.
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
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 § 4B1.2(a). Concluding
that Mack's North Carolina conviction for attempting and
conspiring to ...