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WHEN IT COMES TO VIOLENCE, A CONSPIRACY WITHOUT AN OVERT ACT JUST AIN’T A CONSPIRACY
Taison McCollum was a felon in possession of a gun, a violation of 18 USC 922(g). At sentencing, his district court applied the Guidelines 2K2.1(a)(4)(A) sentencing enhancement, which sets a higher sentencing range for felons-in-possession if they have a prior conviction for a crime of violence. The enhancement was based on Taison’s prior conviction under 18 USC 1959(a)(5) for conspiracy to commit murder in aid of racketeering.
To most reasonable people, a conspiracy to commit murder sounds like it ought to be a crime of violence. But in a remarkable decision last week, the 11th Circuit disagreed, and vacated Taison’s sentence.
Garden-variety conspiracy, both federal and state, requires an overt act. If you all get drunk one night during the NCAA Final Four games, and agree to shoot an especially blind referee, you haven’t committed a crime if you wake up the next morning sober and think better of it. But if after you agree to shoot the ref (which may have even seemed like a good idea when you were drunk), your buddy goes out and buys a gun and tickets to the next playoff game, an overt act has been committed toward the conspiracy’s goal. Then, even if you never shoot the guy, that overt act makes you guilty of the conspiracy.
The Feds have passed several conspiracy laws that do not require an overt act, such as 21 USC 846 drug conspiracies and conspiracy in aid of racketeering, (which is what Taison had been convicted of). The 11th Circuit noted that 36 US states and territories, regular federal conspiracy under 18 USC 371, and two other circuits, the 9th and 10th, all hold that the general conspiracy needs an overt act.
Because 1959(a)(5) does not require an overt act, the 11th said, the statute “criminalizes a broader range of conduct than that covered by generic conspiracy.” Taison’s 1959(a)(5) conviction “therefore cannot support his enhanced sentence because it is not categorically a crime of violence.”
United States v. McCollum, Case No. 17-4296 (11th Cir. Mar. 20, 2018)
– Thomas L. Root
