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Fourth Circuit: Federal Conspiracy to Commit Murder in Aid of Racketeering Not a Crime of Violence for Purposes of Sentencing Guidelines Enhancement

by Christopher Zoukis

The United States Court of Appeals for the Fourth Circuit ruled that conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), does not qualify as a crime of violence for purposes of a United States Sentencing Guidelines § 2K2.1 enhancement.

The categorical approach strikes again.

Taison McCollum pleaded guilty in federal court to possession of a firearm by a convicted felon. At sentencing, the district court applied a sentencing enhancement under § 2K2.1 due to McCollum’s previous conviction for conspiracy to commit murder in aid of racketeering. The enhancement increased McCollum’s base offense level from 14 to 20. McCollum objected, arguing that § 1959(a)(5) conspiracy to commit murder in aid of racketeering is not a “crime of violence” because it does not require an overt act, while generic conspiracy does.

The district court overruled McCollum’s objection. He appealed, and the Fourth Circuit reversed. Because the Court found the enhancement improper, it remanded the case to the district court for a corrected offense level calculation.

The Fourth Circuit applied the categorical approach from Taylor v. United States, 495 U.S. 575 (1990), to McCollum’s prior inchoate crime (conspiracy) and underlying offense (murder). Using the categorical approach, the Court found that § 1959(a)(5) conspiracy exceeds the scope of generic conspiracy. As such, conspiracy to commit murder in aid of racketeering could not be a Guidelines “crime of violence.”

In order to reach this decision, the Court first determined that the categorical approach does, in fact, apply to federal crimes used as Guidelines enhancements. The Government argued to the contrary because, in almost every case, the categorical approach concerns prior state crimes. According to the Court, however, the text of the Guidelines (a “crime of violence” includes qualifying offenses “under federal or state law”) and Circuit precedent (none of which said that the categorical approach is for state crimes only) dictate that the categorical approach should be used when determining whether prior federal crimes qualify as crimes of violence under the Guidelines.

The Court then considered the four steps of categorical approach analysis. First, it concluded that the relevant offense for comparison was conspiracy. Next, the Court determined the elements of generic conspiracy. Key to this case was the Court’s finding that contemporary definitions of conspiracy require an overt act, while § 1959(a)(5) conspiracy does not.

The third step of categorical approach analysis requires courts to compare the elements of the prior crime with the generic definition of the crime. If the elements correspond with each other, the prior crime is a crime of violence. If they do not, the fourth step requires courts to decide whether the scope of the prior crime is “categorically overbroad” when compared to the generic definition.

Here, the fourth step was required, and the prior conspiracy crime was overbroad when compared to the generic definition of conspiracy. Therefore, it could not categorically be a crime of violence.

Accordingly, the Court vacated the judgment of the district court and remanded. See: United States v. McCollum, 885 F.3d 300 (4th Cir. 2018). 

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