U.S. v. King, No. 92-2004

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtBefore LOGAN, HOLLOWAY and BARRETT; LOGAN
Citation979 F.2d 801
Docket NumberNo. 92-2004
Decision Date13 November 1992
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Algie KING, Defendant-Appellee.

Page 801

979 F.2d 801
UNITED STATES of America, Plaintiff-Appellant,
v.
Algie KING, Defendant-Appellee.
No. 92-2004.
United States Court of Appeals,
Tenth Circuit.
Nov. 13, 1992.

Stephen R. Kotz, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellant.

Jeffrey J. Buckels, Albuquerque, N.M., for defendant-appellee.

Before LOGAN, HOLLOWAY and BARRETT, Circuit Judges.

LOGAN, Circuit Judge.

The only issue in this appeal is whether a New Mexico state conviction for conspiracy to commit a violent felony is a conviction of a violent felony for purposes of the sentence enhancement provisions of 18 U.S.C. § 924(e). We hold that it is not, and therefore affirm the district court's judgment to that effect.

After a jury trial, defendant Algie King was convicted of being a previously convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Section 924(e)(1) of the same title provides for a mandatory enhanced penalty of not less than fifteen years imprisonment for defendant if he "has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." In this case, defendant's criminal history included New Mexico state court convictions for involuntary manslaughter and for aggravated battery, both conceded to be "violent felonies," and for conspiracy to commit armed robbery. 1 The district court refused to accord

Page 802

the conspiracy conviction "violent felony" status for purposes of § 924(e), finding that the elements required to prove a conspiracy in New Mexico--that the defendant and another person agreed together to commit an offense and that they intended to commit that offense--did not meet the statutory definition. See N.M. Unif. Jury Instr.--Criminal, No. 14-2810 (Michie 1986). The government has appealed.

The definition of "violent felony" for purposes of 18 U.S.C. § 924 is as follows:

T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.

Id. § 924(e)(2)(B). Because the issue is one of statutory interpretation, we review the district court's judgment de novo. United States v. Maines, 920 F.2d 1525, 1527 n. 4 (10th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 263, 116 L.Ed.2d 216 (1991). For purposes of § 924(e), the courts do not inquire into the particular factual circumstances surrounding the past offenses. We look "only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990). This formal categorical approach was mandated by the Supreme Court to avoid "the practical difficulties and potential unfairness of a factual approach" to each prior conviction. Id. at 601, 110 S.Ct. at 2159.

The only appellate decision to have considered a conspiracy conviction under § 924(e)(2)(B) is United States v. Preston, 910 F.2d 81 (3d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1002, 112 L.Ed.2d 1085 (1991). There the court ruled that the defendant's Pennsylvania state court conviction for conspiracy to commit robbery was indeed a "violent felony" under § 924(e) for sentence enhancement purposes. The court reasoned that "Pennsylvania law requires that the crime that was the object of the conspiracy be defined for the jury. Thus, the elements of criminal conspiracy to commit robbery ... subsume the elements of robbery, which is a violent felony for purposes of § 924(e)." Id. at 86 (footnote omitted). The court held that a conviction for conspiracy to commit a violent felony fell within the first of the two alternative definitions: that it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Although the Third Circuit's interpretation may be proper under Pennsylvania law, we think that it is not a proper construction as applied to New Mexico law.

To convict a defendant of conspiracy in New Mexico, the state must prove that the defendant and another person agreed together to commit a felony and that they intended to commit the felony. Although the crime forming the basis of the conspiracy must be explained to the jury, New Mexico law is clear that "[t]he overt act which constitutes the object of the conspiracy is no part of the crime of conspiracy; indeed, an overt act is not required, but the crime is...

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40 practice notes
  • U.S. v. Begay, No. 05-2253.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 12, 2006
    ...the enumerated add-ons. Id. (internal citation omitted). (This circuit relied on this same legislative history in United States v. King, 979 F.2d 801, 803 (10th Cir.1992), to declare that the crimes covered by the "otherwise" clause were not restricted to property Finally, address......
  • United States v. Chandler, No. 12–10331.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 20, 2014
    ...between the defendant and an individual interacting with the conspirator while the overt act is being committed.”); United States v. King, 979 F.2d 801, 804 (10th Cir.1992) (explaining that the Tenth Circuit “look[s] only to the elements of the conspiracy crime” and holding that conspiracy ......
  • Austin v. United States, 16–cv–4446 (JSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 4, 2017
    ...latter requires some outward expression or indication of an intention to inflict pain, harm or punishment."); United States v. King, 979 F.2d 801, 803 (10th Cir. 1992) (the " ‘threatened use of physical force’ means both an intent to use force and a communication of that intent&qu......
  • United States v. Hammond, Criminal Action No. 02-294 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 7, 2018
    ...prior crime was not a crime of violence because the crime could be committed through reckless use of force); United States v. King , 979 F.2d 801, 803 (10th Cir. 1992) (considering only whether conspiring to commit a violent felony is equivalent to threatening to use force). Thus, Hammond's......
  • Request a trial to view additional results
41 cases
  • U.S. v. Begay, No. 05-2253.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 12, 2006
    ...the enumerated add-ons. Id. (internal citation omitted). (This circuit relied on this same legislative history in United States v. King, 979 F.2d 801, 803 (10th Cir.1992), to declare that the crimes covered by the "otherwise" clause were not restricted to property Finally, addressing the Fi......
  • United States v. Chandler, No. 12–10331.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 20, 2014
    ...between the defendant and an individual interacting with the conspirator while the overt act is being committed.”); United States v. King, 979 F.2d 801, 804 (10th Cir.1992) (explaining that the Tenth Circuit “look[s] only to the elements of the conspiracy crime” and holding that conspiracy ......
  • Austin v. United States, 16–cv–4446 (JSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 4, 2017
    ...The latter requires some outward expression or indication of an intention to inflict pain, harm or punishment."); United States v. King, 979 F.2d 801, 803 (10th Cir. 1992) (the " ‘threatened use of physical force’ means both an intent to use force and a communication of that intent"). Indee......
  • United States v. Hammond, Criminal Action No. 02-294 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 7, 2018
    ...prior crime was not a crime of violence because the crime could be committed through reckless use of force); United States v. King , 979 F.2d 801, 803 (10th Cir. 1992) (considering only whether conspiring to commit a violent felony is equivalent to threatening to use force). Thus, Hammond's......
  • Request a trial to view additional results

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