Argued: January 25, 2018
from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn,
Jr., District Judge. (3:16-cr-00199-MOC-DCK-1)
B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant.
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Anthony Martinez, Federal Public Defender, Caleb H. Newman,
FEDERAL PUBLIC DEFENDER WESTERN DISTRICT OF NORTH CAROLINA,
Charlotte, North Carolina, for Appellant.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
DUNCAN, CIRCUIT JUDGE:
Taison McCollum pleaded guilty in federal court to possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g). At his sentencing, the district court applied
a sentencing enhancement under § 2K2.1(a)(4)(A) of the
Sentencing Guidelines based on McCollum's prior
conviction under 18 U.S.C. § 1959(a)(5) for conspiracy
to commit murder in aid of racketeering. McCollum argues that
the district court erred because conspiracy under §
1959(a)(5) does not require an overt act and is therefore
broader than generic conspiracy. As we explain below, we are
constrained by the Guidelines text and precedent to agree.
The dissent, on the other hand, achieves the result it
prefers by overlooking inconvenient Supreme Court and circuit
precedent interpreting the Guidelines language at
issue. As we are reluctant to do so, we vacate
McCollum's sentence and remand for resentencing.
pleaded guilty in the Western District of North Carolina to
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g). The presentence investigation report
asserted that McCollum had two prior convictions that
qualified as crimes of violence under § 2K2.1, the
Guidelines provision that establishes the base offense level
for a felon in possession of a firearm: a New Jersey
conviction for aggravated manslaughter, and a conviction
under 18 U.S.C. § 1959(a)(5) for conspiracy to commit
murder in aid of racketeering. These two convictions
supported an enhancement that increased McCollum's base
offense level from fourteen to twenty-four. The district
court sustained McCollum's objection to classification of
his New Jersey conviction as a crime of violence but held
that McCollum's § 1959(a)(5) conviction was properly
classified as such. Accordingly, the district court concluded
McCollum had one prior conviction that qualified as a crime
of violence under § 2K2.1 and that McCollum's base
offense level was twenty.
argues that his enhanced sentence is unlawful because
conspiracy to commit murder in aid of racketeering is not a
"crime of violence" since it does not require an
overt act, while conspiracy under the Guidelines does.
review de novo whether a prior conviction qualifies as a
crime of violence under the Guidelines. United States v.
Salmons, 873 F.3d 446, 448 (4th Cir. 2017). We conclude
that § 1959(a)(5) is not categorically a crime of
violence because conspiracy under that provision is, in fact,
broader than generic conspiracy, and precedent directs that
we consider the inchoate crime of conspiracy and its object
independently. We therefore remand for
§ 2K2.1 of the Guidelines, the base offense level for a
§ 922(g) conviction is twenty if the defendant has a
prior "felony conviction of either a crime of violence
or a controlled substance offense." U.S.S.G. §
2K2.1(a)(4)(A). The felon-in-possession Guideline defines a
"crime of violence" via cross-reference "to
the career-offender guideline, U.S.S.G. § 4B1.2."
United States v. Shell, 789 F.3d 335, 340 (4th Cir.
2015); U.S.S.G. § 2K2.1 cmt. n.1. Accordingly, for
purposes of the felon-in-possession Guideline, a crime of
violence includes "any offense under federal or state
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion,
or the use or unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as defined in
18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a). Further, a "crime of
violence" includes "the offenses of aiding and
abetting, conspiring, and attempting to commit such
offenses." Id. cmt. n.1.
generally follow a well-established procedure to determine
whether a defendant's prior conviction qualifies as an
enumerated crime of violence under the Guidelines. A
defendant may not receive an enhanced sentence merely because
the label attached to his crime of conviction is listed in
the enumerated offense clause. Instead, an enhanced sentence
is lawful only if the prior conviction necessarily
establishes that the defendant "has been found guilty of
all the elements" of the enumerated offense. See
Taylor v. United States, 495 U.S. 575, 599 (1990).
Taylor, the Supreme Court instructed that, with
regard to the undefined enumerated offenses, courts must look
to the "generic, contemporary meaning" of the
crime, which will typically correspond to the "sense in
which the term is now used in the criminal code of most
states, " id. at 598, rather than the
term's common law meaning, see id. at
Taylor instructed that we apply this categorical
approach to ensure that the elements of the crime of
conviction are no broader than those of the generic
enumerated offense. See 495 U.S. at 602.
Taylor's categorical approach "serves as
the cornerstone of our analysis [of] whether a prior offense
qualifies as a 'crime of violence' under Section
4B1.2(a)." Carthorne, 726 F.3d at 511.
"The point of the categorical inquiry is not to
determine whether the defendant's conduct could
support a conviction for a crime of violence, but to
determine whether the defendant was in fact
convicted of a crime that qualifies as a crime of
violence." United States v. Cabrera-Umanzor,
728 F.3d 347, 350 (4th Cir. 2013).
evaluating a defendant's prior conviction for an inchoate
offense listed in the commentary to § 4B1.2(a),
"two sets of elements are at issue: the elements of [the
inchoate crime] and the elements of the underlying .
. . offense." United States v. Dozier, 848 F.3d
180, 185-86 (4th Cir. 2017). Both the inchoate crime and the
underlying offense are subject to Taylor's
categorical approach. An enhanced sentence may follow a
conviction for an inchoate crime only if the defendant's
conviction necessarily establishes that he was found guilty
of a crime whose elements encompass both the generic inchoate
crime and the generic underlying crime. Id.
argues that § 1959(a)(5) does not support an enhanced
sentence because it does not require an overt act, while
generic conspiracy does. The government disagrees. It argues
as a threshold matter that we should not employ the
categorical approach to evaluate a predicate federal
crime because we have never previously done so.
Alternatively, the government continues, even if the
categorical approach could be applied to some predicate
federal crimes, it should not be applied to § 1959(a)(5)
because it would be unreasonable to believe the Commission
intended to exclude obviously violent crimes like
conspiracies to commit murder in aid of racketeering from its
definition of "crime of violence." Moreover, the
government contends that generic conspiracy, like common law
conspiracy, does not require proof of an overt act. We
address these issues below.
first consider whether the categorical approach applies to
federal crimes like conspiracy to commit murder in aid of
racketeering. We conclude that it does for two reasons.
First, although the Commission has not expressly addressed
the issue, the text of § 4B1.2 and other Commission
publications strongly suggests that it does. Second, we find