United States v. McCollum

• Decision Date: 20 March 2018
• Docket Number: No. 17-4296,17-4296
• Citation: 885 F.3d 300
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Taison MCCOLLUM, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

885 F.3d 300

UNITED STATES of America, Plaintiff–Appellee,

v.Taison MCCOLLUM, Defendant–Appellant.

No. 17-4296

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2018

Decided: March 20, 2018

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, Caleb H. Newman, FEDERAL PUBLIC DEFENDER WESTERN DISTRICT OF NORTH CAROLINA, Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge Duncan wrote the opinion, in which Judge Traxler joined. Judge Traxler wrote a concurring opinion. Judge Wilkinson wrote a dissenting opinion.

DUNCAN, Circuit Judge:

Appellant 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.¹ As we are reluctant to do so, we vacate McCollum’s sentence and remand for resentencing.

I.

McCollum 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.

II.

McCollum 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.

We 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 resentencing.²

A.

Under § 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 law" that:

(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.

Courts 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

In 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, 110 S.Ct. 2143, rather than the term’s common law meaning, see id. at 594, 110 S.Ct. 2143.³ 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, 110 S.Ct. 2143. 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).

When 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).⁴ 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.

McCollum 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.

B.

We 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 no textual or analytical basis in our precedent for distinguishing the treatment of state and federal statutes.

1.

Our starting point is the Guidelines text. The fact that under § 4B1.2(a) a "crime of violence" includes qualifying offenses "under federal or state law," U.S.S.G. § 4B1.2(a), suggests that the two are to be treated similarly. And treating federal predicates similarly necessarily implicates the categorical approach. It is beyond debate that we utilize the Taylor construct and the categorical approach to determine whether a prior state conviction constitutes a crime of violence. See, e.g. , Taylor , 495 U.S. at 590, 110 S.Ct. 2143 ; Dozier , 848 F.3d at 183 ; Shell , 789 F.3d at 338 ; Carthorne , 726 F.3d at 512–13.⁵

Notably, too, the Commission’s 2016 Supplement to Appendix C explains that courts employ the categorical approach when applying the enumerated offense clause, and it offers no exception for federal crimes: "The ‘enumerated offense clause’ identifies specific offenses that qualify as crimes of violence. In applying this clause, courts compare the elements of the predicate offense of conviction with the elements of the enumerated offense in its ‘generic, contemporary definition.’ " U.S.S.G. Supp. to App. C, amend. 798 (2016), at 129. If the Commission had intended for courts to apply the categorical approach only to state crimes, it could easily have made that clear. When the Commission wants to single out federal laws, it can—and does—do so explicitly. For example, the text of § 4B1.2(a)(2) includes as crimes of violence "unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or...