by David M. Reutter

The United States Court of Appeals for the Seventh Circuit held that “conspiring” in U.S.S.G. § 4B1.2 incorporates the generic 1989 definition of conspiracy, which requires genuine agreement by at least two participants. Because Indiana Code § 35-41-5-2 also criminalizes unilateral conspiracy with an undercover agent, Indiana conspiracy convictions cannot categorically qualify as “crimes of violence.” The Court vacated the defendant’s 96-month sentence and remanded for resentencing.

Background

In 2024, Christopher Lloyd pleaded guilty under the felon-in-possession statute, 18 U.S.C. § 922(g)(1). The Presentence Investigation Report treated Lloyd’s Indiana cocaine-dealing conviction as a controlled substance offense and his armed-robbery conspiracy conviction as a crime of violence under U.S.S.G. § 2K2.1(a)(2), producing a higher base offense level.

Lloyd argued that Indiana’s statute reaches conduct outside § 4B1.2 because an undercover agent may supply the only purported agreement. Although his conspiracy was bilateral, the categorical approach disregards actual conduct. The U.S. District Court for the Southern District of Indiana treated 2023 as controlling, concluded that generic conspiracy included unilateral liability, and imposed 96 months within a 77-to-96-month range. Lloyd timely appealed the classification of his conspiracy conviction.

Analysis

The Court began its analysis by applying the categorical approach, which compares the least-culpable conduct covered by state law with generic federal elements and disregards the defendant’s actual acts. United States v. Pemberton, 85 F.4th 862 (7th Cir. 2023); Mathis v. United States, 579 U.S. 500 (2016). A broader state offense cannot support the enhancement. Pugin v. Garland, 599 U.S. 600 (2023); Taylor v. United States, 495 U.S. 575 (1990). Because review in Pemberton was for plain error, the Court did not determine whether generic conspiracy was bilateral. Indiana permits bilateral and unilateral conspiracies. Garcia v. State, 394 N.E.2d 106 (Ind. 1979); Tidwell v. State, 644 N.E.2d 557 (Ind. 1994).

The Court next determined that 1989 controls because the Sentencing Commission first included conspiracy within § 4B1.2 that year through an application note. U.S.S.G. § 4B1.2 cmt. n.1 (1989). The 2023 amendment moved the unchanged inchoate-offense language into § 4B1.2(d) to address a circuit conflict over application notes; it did not alter “conspiring.” U.S.S.G. § 4B1.2(d) (2023). Thus, the Court rejected the Government’s 2023 enactment-date argument.

Generic Definition
of Conspiracy

The Court then examined 1989 federal and state law, dictionaries, and the Model Penal Code (“MPC”). Traditional conspiracy was bilateral. Garcia; State v. Marian, 405 N.E.2d 267 (Ohio 1980). The general federal statute required “two or more persons.” 18 U.S.C. § 371 (1988). The Supreme Court characterized conspiracy as “a partnership in crime” and stated that it requires agreement among separate persons. Pinkerton v. United States, 328 U.S. 640 (1946); Ziglar v. Abbasi, 582 U.S. 120 (2017). The Seventh Circuit’s precedents do not permit liability where only an agent or informant feigns participation. United States v. Corson, 579 F.3d 804 (7th Cir. 2009); United States v. Mahkimetas, 991 F.2d 379 (7th Cir. 1993).

The MPC adopted unilateral conspiracy in 1962 as a departure from the traditional rule. Model Penal Code § 5.03(1) (Am. L. Inst. 1962). In 1989, at least 28 states, the District of Columbia, Puerto Rico, and the Virgin Islands still required bilateral agreement. Courts in three states retained that rule despite MPC-like statutory language. People v. Foster, 457 N.E.2d 405 (Ill. 1983); State v. Grullon, 562 A.2d 481 (Conn. 1989); State v. Pacheco, 882 P.2d 183 (Wash. 1994). Contemporaneous legal dictionaries likewise defined the offense as an agreement between at least two people. The Supreme Court has recognized such dictionaries as relevant to generic meaning. Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017); Pugin.

The Court held that bilateral conspiracy represented the 1989 consensus. It rejected the Government’s reliance on the MPC-inspired trend because a trend does not establish a generic offense without majority support. The Court reasoned that because Indiana permits unilateral conspiracy liability, § 35-41-5-2 is broader than § 4B1.2 regardless of Lloyd’s actual conduct. The Court acknowledged that conspiracy offenses under at least 20 current unilateral statutes cannot qualify under § 4B1.2 and that interstate disparities may result but concluded that the categorical approach requires that outcome.

Conclusion

Accordingly, the Court vacated Lloyd’s sentence and remanded for resentencing. See: United States v. Lloyd, 2026 U.S. App. LEXIS 24365 (7th Cir. 2026).  

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