Tag Archives: conspiracy

5th Circuit Holds Conspiracy to Rob Not a Violent Crime – Update for November 8, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

924(c) AND HOBBS ACT ROBBERY GETS EVEN MORE CONFUSING

We have reported over the past few weeks that a number of Circuits have held, in the wake of Sessions v. Dimaya, that determining whether the crime underlying an 18 USC 924(c) conviction for using or carrying a gun during a crime of violence had to be conduct-specific or case-specific, as opposed to a hypothetical ordinary-case categorical approach.

Robber160229The 5th Circuit reminded us last week that, curiously enough, it is the outlier. In United States v. Lewis, the Circuit repeated its holding last summer in United States v. Davis that conspiracy to commit a Hobbs Act robbery cannot support a conviction for using or carrying a gun under 18 USC 924(c).

How long the 5th Circuit’s position lasts is anyone’s guess. The government filed a petition for writ of certiorari in Davis last month, arguing that the 5th Circuit’s use of the ordinary-case categorical approach in 924(c) cases is at odds with everyone else, and is just plain wrong. Given the stark circuit split and the importance of the issue, we think the government’s chance to win certiorari on the issue is better than even.

United States v. Lewis, Case No. 17-50526 (5th Cir. Nov. 1, 2018)

United States v. Davis, Supreme Court Case No. 18-431 (petition for certiorari filed Oct. 3, 2018)

– Thomas L. Root

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Agreeing to Shoot Someone is Hardly Violent – Update for March 28, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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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.

blind-referee-memeGarden-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

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