US v. Taison McCollum, No. 17-4296 (4th Cir., filed 3/20/18): Conspiracy to Commit Murder in Aid of Racketeering Not So Violent-y.
Remand for Re-Sentencing After Categorical Approach Reveals Conspiracy to Commit Murder in Aid of Racketeering is not “Crime of Violence.”
So no one is particularly happy about this opinion . . . except Mr. McCollum. The majority was “reluctant” to vacate the sentence, Judge Traxler’s concurrence essentially asks either Congress or the United States Supreme Court to “help” them out, and the dissent laments “Heaven help us.” All this because the incredibly turgid Federal Sentencing Guidelines are so complex that you don’t see this sort of thing until it’s raised on appeal by a very capable lawyer (shout out, W.D.N.D. Public Defender’s Office).
Here’s what happened. McCollum had a prior conviction that the district court used to enhance his sentence, conspiracy to commit murder in aid of racketeering, 18 U.S.C. 1959(a)(5). Sounds pretty violent, right? McCollum’s base offense jumped from 14 to 20 based on this prior conviction. On appeal, he argued that this conviction was, in fact, not a “crime of violence.”
Under 2K2.1 of the Guidelines, the base offense for a §922(g) conviction (possession of a firearm by a convicted felon) is 20 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. That means that 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…
It also includes “the offense of aiding and abetting, conspiring, and attempting to commit such offenses. Id. cmt. n.1.
So, a defendant cannot receive an enhanced sentence just because of the label attached to his crime; he must be, in fact, guilty of all of the elements of the enumerated offense. See Taylor v. United States, 495 U.S.575, 599 (1990).
In Taylor, the Supreme Court held 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. The Court noted that the Ninth Circuit had recently engaged in an analysis of conspiracy statutes, and found that 36 states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands define conspiracy to require an overt act. See United States v Garcia-Santana, 774 F.3d 528, 534-35 (9th Cir. 2014).
So, what happened here is that conspiracy to commit murder in aid of racketeering does not require an “overt act” in its furtherance, but conspiracy, as it is used in the criminal code of most states does require an overt act (and also the general federal conspiracy statute requires an overt act as an element, too. See 18 U.S.C. 371).
While it may seem completely counter-intuitive, under the Guidelines (as they currently exist), conspiracy to commit murder in aid of racketeering is not, then, a “crime of violence” because its lacking the element of an overt act.
Judge Wilkinson offered a thorough and well-constructed dissent, and it’s not easy to tell who has the better argument, in my opinion. It’s important to know that this case is out there, and I suspect we’ll see this argument crop up again until either Congress or the Supremes weigh in.