Murderous Schemes Are Not Violent Crimes?

Murderous Schemes Are Not Violent Crimes?

Legal Sidebari

Murderous Schemes Are Not Violent Crimes?
April 17, 2018
The U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) recently held in U.S. v. McCollum that
conspiracy to murder is not a violent crime for federal sentencing purposes. The comments of a
concurring judge seem to capture the frustration of the panel with the result: “The dissent ends with the …
lament, ‘Heaven help us.’ Frankly, I would be satisfied if Congress or the Supreme Court would help us.
The law in this area, which Judge Duncan faithfully follows, leads to some seemingly odd results with
which I do not think any of us are particularly happy.”
The case marks the latest judicial effort to identify what constitutes a crime of violence for purposes of
federal law. The task has been complicated by the multiplicity of state statutes that often serve as
predicates for federal sentencing enhancements. Congress has made adjustments. For example, it
established a general definition to permit uniform application through the federal criminal code, 18 U.S.C.
§ 16. Yet the difficulties persist.
The Armed Career Criminal Act (ACCA) is primarily responsible for the more than a dozen instances
when the Supreme Court has addressed the “violent crime” question. The ACCA calls for a 15-year
mandatory minimum term of imprisonment for those convicted of unlawful firearm possession that have
three or more prior federal or state serious drug felony or violent felony convictions. A felony is an
ACCA “violent felony” if it qualifies under any of the three categories of offenses. One category includes
crimes that involve the actual, attempted, or threatened use of physical force against another individual. A
second consists of specific crimes, such as burglary, arson, and extortion. A third, the so-called residual
clause, encompasses offenses that “otherwise involve[] conduct that presents a serious potential risk of
physical injury to another.”
Beginning with Taylor v. United States, the Supreme Court developed a “categorical” approach to
determine whether a particular federal or state crime conviction constitutes a violent felony conviction for
ACCA purposes. However, after trying four times, from James v. United States through Sykes v. United
States, to apply the approach to residual clause cases, the Court gave up. In Johnson v. United States, it
declared the ACCA’s residual clause unconstitutionally vague. Johnson raised questions of the continued
validity of the remaining categories of the ACCA violent felony definition, as well as the validity of the
general definition in Section 16 and the sentencing enhancing definition in the Sentencing Guidelines.
The Supreme Court has, or soon will, address these issues.
The Court has two “crime of violence” cases pending. One, Sessions v. Dimaya, addresses the Section 16
issue and the other, Stokeling v. United States, the “use of physical force” category of the ACCA
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definition. The Court has already held, in Beckles v. United States, that the Sentencing Guideline’s crime
of violence definition is not unconstitutionally vague, even though it was modeled after the definition
found unconstitutional in Johnson. The Court in Beckles explained that the constitutional void-for-
vagueness doctrine did not apply to the Guidelines because they are not binding on a sentencing court,
although failure to accurately account for the Guidelines’ recommendations constitutes reversible error.
All of which left the Fourth Circuit with the task of applying the Taylor categorical approach in
McCollum.
McCollum pleaded guilty to possession of a firearm by a convicted felon. In the calculation of
McCollum’s sentence, the U.S. District Court for Western District of North Carolina added in a “crime of
violence” enhancement based on the McCollum’s prior conviction for conspiracy to murder in aid of
racketeering. The Fourth Circuit held that was a mistake. The court determined that the enhancement was
not appropriate because the conspiracy-to-murder statute imposed no overt act requirement.
The Fourth Circuit’s analysis relied on the “categorical” approach, which the Supreme Court first
established in Taylor v. United States and which the Supreme Court and lower courts have used since in
“crime of violence” cases. The approach involves comparing the elements of an offense at issue, here
conspiracy to murder, with the elements of a “crime of violence” as defined in the statute or Guidelines.
The crime at issue is not a crime of violence unless it matches or is narrower than the crime envisioned in
the statute or Guidelines, that is, unless it falls within the same category as the statute or Guideline
description of a crime of violence.
The Sentencing Guidelines define a crime of violence as an “offense under federal or state law” that “(1)
has an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder … or [3] is an offense of … conspiring … to commit such offenses.” (USSG 4B1.2). The
Fourth Circuit concluded that the Taylor line of cases compels use of the generic, contemporary meaning
of “conspiracy” and noted that thirty-six states, the District of Columbia, three U.S. territories, and the
general federal conspiracy statute all define “conspiracy” to include an overt act element. The conspiracy
to commit murder in aid of racketeering statute, however, does not have an overt act requirement. The
Fourth Circuit consequently held that “[b]ecause [the conspiracy statute] does not require an overt act, it
criminalizes a broader range of conduct than that covered by generic conspiracy. McCollum’s
[conspiracy] conviction therefore cannot support his enhanced sentence because it is not categorically a
crime of violence.”
Unless the Supreme Court or Congress clarifies what constitutes a violent crime, results like those in
McCollum are likely to continue to occur.

Author Information

Charles Doyle

Senior Specialist in American Public Law

Congressional Research Service
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