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Third Circuit Announces Conspiracy to Commit ‘Crime of Violence’ Not ‘Crime of Violence’ for Purposes of Sentencing Enhancement Under Guideline § 2K2.1(a)(4)

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit held that U.S. Sentencing Guidelines (“U.S.S.G.”) § 2K2.1 does not apply to conspiracy to commit a crime of violence.

Junior Abreu pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Based on Abreu’s prior conviction for conspiracy to commit second-degree assault in New Jersey, the U.S. Probation Office calculated his Guidelines range by using U.S.S.G. § 2K2.1(a)(4), which enhances a sentence if a defendant “committed any part of the instant offense” after a felony conviction for either a “crime of violence” or a “controlled substance offense.” Application of § 2K2.1(a)(4) increased Abreu’s advisory Guidelines range from 27-33 months to a range of 51-63 months.

Abreu objected, arguing that a conspiracy to commit a crime of violence is not a conviction for a crime of violence for purposes of the sentencing enhancement. The U.S. District Court for the District of New Jersey observed that the commentary to § 2K2.1(a)(4) states that “‘[c]rime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” § 2K2.1 cmt. 1. And under § 4B1.2(a)(2) or an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 4B1.2(a)(1). However, the commentary to that Guideline states “[f]or the purposes of this guideline,” the term also encompasses “conspiring … to commit [a crime of violence].” Id. cmt. 1.

The District Court further observed that per United States v. Hightower, 25 F.3d 182 (3d. Cir. 1994), “inchoate crimes like conspiracy counted under the ‘controlled substance offense’ prong of § 4B1.2, so they must also count under its ‘crime of violence’ prong, and that because § 2K2.1’s commentary defined ‘crime of violence’ by reference to § 4B1.2, the same must be true of § 2K2.1.” The District Court concluded § 2K2.1(a)(4) applied and sentenced Abreu to 56 months in prison and three years’ supervised release. Abreu appealed.

The Court observed that in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the U.S. Supreme Court “reinforce[d] the limits” of the deference courts afford to agencies’ interpretations of their regulations, i.e., “the possibility of deference can arise only if a regulation is genuinely ambiguous.” Kisor instructed courts to “exhaust all traditional tools of construction” before concluding that a rule is “genuinely ambiguous.” Id. The Third Circuit, following Kisor’s instruction, took a second look at § 4B1.2; concluded that the text of “controlled substance offense” prong unambiguously excluded inchoate crimes; declined to defer to the commentary; and overruled Hightower in United States v. Nasir, 982 F.3d 144 (3d Cir. 2020), i.e., inchoate crimes don’t qualify as “controlled substance offenses” under § 4B1.2.

The Court explained that the present case is materially analogous to the “controlled substance offenses” rationale in Nasir and applies equally to “crime of violence” for purposes of § 2K2.1. Neither §§ 2K2.1 nor 4B1.2 are ambiguous, according to the Court. Section 2K2.1 states that its definition of “crime of violence” is the same as the definition in § 4B1.2 and the definition of “crime of violence” in § 4B1.2 does not include conspiracies to commit crimes of violence. Even though the commentary to § 4B1.2 instructs that conspiracies are included, the actual text of § 4B1.2 unambiguously does not include conspiracies — just like the text of § 2K2.1 — and the holdings of Kisor and Nasir preclude deference to the commentary, the Court stated.

The Court summarized as follows: “the plain text, structure, and purpose of the Guidelines indicate that ‘there is only one reasonable construction’ of ‘crime of violence’ as used in § 2K2.1(a)(4), Kisor [pinpoint citation omitted], and just as in § 4B1.2(a), that construction excludes conspiracy offenses.” Thus, the Court held that Abreu’s previous conviction for conspiracy to commit second-degree aggravated assault doesn’t qualify him for a sentence enhancement under § 2K2.1(a)(4).

Accordingly, the Court vacated Abreu’s sentence and remanded for resentencing consistent with its opinion. See: United States v. Abreu, 32 F.4th 271 (3d Cir. 2022). 

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