United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM AND OPINION ORDER
R. Goodwin United States District Judge
before the court is Defendant Cooper's objection to
designating his 2015 conviction for conspiracy to commit
first degree robbery in West Virginia as a “crime of
violence” pursuant to § 4B1.2 of the United States
Sentencing Guidelines. For the reasons stated herein, the
objection is SUSTAINED.
8, 2019, Defendant Cooper plead guilty to Felon in Possession
of Firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
the sentencing hearing on July 31, 2019, Defendant Cooper
objected to designating his previous conviction for
conspiracy to commit first degree robbery in West Virginia as
a “crime of violence” under U.S.S.G. §
4B1.2. Under U.S.S.G. § 2K2.1(a)(4)(A), if the
Defendant's predicate felony offense was a “crime
of violence” as defined in U.S.S.G. § 4B1.2(a),
then a base level offense of 20 applies. If the predicate
felony is not a “crime of violence, ” then a base
level of 14 would apply in this case.
court ordered supplemental briefing at the July 31, 2019
hearing. The parties submitted their briefs, and the court
ruled on August 26, 2019 that the Defendant's previous
conviction of conspiracy to commit robbery does not qualify
as a “crime of violence” under U.S.S.G. §
4B1.2. This opinion follows that ruling.
question before the court is whether conspiracy to commit
first degree robbery in West Virginia qualifies as a
“crime of violence” under U.S.S.G. §
4B1.2(a). “The felon-in-possession Guideline defines a
‘crime of violence' via cross-reference ‘to
the career-offender guideline, U.S.S.G. §
4B1.2.'” United States v. McCollum, 885
F.3d 300, 304 (4th Cir. 2018); U.S.S.G. § 2K2.1 cmt.
n.1. This court will first determine whether the West
Virginia conspiracy statute qualifies as a “crime of
violence” under the Sentencing Guidelines. Next, the
court will decide whether the commentary to the Sentencing
Guidelines can designate conspiracy to commit robbery as a
“crime of violence.”
Whether Conspiracy to Commit Robbery in West Virginia is a
Crime of Violence.
order for conspiracy to commit robbery in West Virginia to be
considered a “crime of violence, ” it must be one
of the enumerated offenses under the text of the Sentencing
Guidelines, or one of the elements of the conspiracy statute
must include the “use, attempted use, or threatened use
of physical force, ” the so-called force
clause. See U.S.S.G. §4B1.2(a).
Conspiracy to commit robbery is not one of the offenses
listed in the text of U.S.S.G. §4B1.2(a). Thus, for
conspiracy to qualify as a “crime of violence”
under the text of the Guidelines, it must contain an element
that qualifies under the force clause. See id.
determine whether a statute is a “crime of
violence” under the force clause, courts use the
categorical approach and look at “the full range of
conduct covered by [the] statute, ‘including the most
innocent conduct.'” Shell, 789 F.3d at 339
(brackets added). If the statute includes some violations
which are “crimes of violence” and others that
are not, “then the state offense is deemed
‘categorically overbroad' and § 4B1.2 does not
apply.” Id. For purposes of the force clause,
“the Supreme Court held in Johnson v. United
States, ‘physical force' means ‘violent
force-that is, force capable of causing physical pain or
injury to another person.'” Id. (quoting
Johnson v. United States, 559 U.S. 133, 140 (2010).
order to be convicted of conspiracy to commit robbery in West
Virginia, the government must prove (1) “the defendant
agreed with others to commit an offense against the State,
” and (2) “that some overt act was taken by a
member of the conspiracy to effect the object of that
conspiracy.” State v. Less, 294 S.E.2d 62, 67
(1981); see W.Va. Code § 61-10-31. The overt
act element for conspiracy is undefined and could include
actions which are not crimes of violence, as the United
States conceded. See Tr. Sentencing Hr'g [ECF
No. 33] 6:22-24 (“THE COURT: Does [the overt act
requirement] of necessity have to be a crime of violence to
be an adequate overt act? MR. TESSMAN: I don't believe
so, Your Honor.”). For example, an overt act could
include giving someone money to buy a gun. See State v.
Burd, 419 S.E.2d 676, 680-81 (1991). Other states have
found overt acts for conspiracy can include innocuous and
nonviolent activities. See e.g., People v.
Carlock, No. C085983, 2019 WL 2588793, at *5
(Cal.Ct.App. 2019) (finding sufficient “…the
overt act of defendant renting the car.”); State v.
Faust, 127 A.3d 1028, 1044 (Conn. 2015) (deciding an
overt act can be monitoring a store prior to a robbery.);
State v. Johnson, No. A04-1653, 2005 WL 2352109, at
*3 (Minn.Ct.App. 2005) (holding overt acts include providing
“directions, a map, and a picture...”). The overt
act in this case does not require “violent force-that
is, force capable of causing physical pain or injury to
another person.” See Johnson, 559 U.S. at 140.
Thus, conspiracy to commit robbery in West Virginia does not
have an element which includes the “use, attempted use,
or threatened use of physical force, ” and therefore is
not a “crime of violence.” See Shell,
789 F.3d at 339; see U.S.S.G. §4B1.2(a).
the Fourth Circuit recently held that when deciding whether
an inchoate offense is a “crime of violence, ”
the court must consider whether the underlying object of the
crime must be completed as an element of the inchoate
offense. See United States v. Dinkins, 928 F.3d 349,
358-59 (4th Cir. 2019). In that case, because an element of
being an accessory before the fact of armed robbery is that
the principal committed the underlying offense, it is a
violent felony. Id. Importantly, the court
specifically distinguished “other inchoate offenses,
such as conspiracy, which do not require that the object
crime be completed.” Id. at 359, n.7. Though
this court has held first degree robbery is a violent crime,
see Clements v. United States, No. 2:14-cr-00174-1,
2018 WL 6584477, at *3 (S.D. W.Va. Dec. 14, 2018) (citing
W.Va. Code § 61-2-12), in this case, Defendant
Cooper's conspiracy conviction did not require the
underlying crime be completed. See Less, 294 S.E.2d
at 67 (holding conspiracy can occur “regardless of
whether the crime agreed upon actually is committed.”).
Thus, Defendant Cooper's previous conviction for
conspiracy to commit robbery in West Virginia cannot qualify
as a “crime of violence.”
Whether the Commentary Makes Conspiracy a ...