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United States v. Cooper

United States District Court, S.D. West Virginia, Charleston Division

October 8, 2019

UNITED STATES OF AMERICA,
v.
COLE DYLAN COOPER

          MEMORANDUM AND OPINION ORDER

          Joseph R. Goodwin United States District Judge

         Pending 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.

         I. Background

         On May 8, 2019, Defendant Cooper plead guilty to Felon in Possession of Firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

         During 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.

         The 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.

         II. Discussion

         The 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.”

         a) Whether Conspiracy to Commit Robbery in West Virginia is a Crime of Violence.

         In 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.[1] 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.

         To 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).

         In 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).

         Further, 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.”

         b) Whether the Commentary Makes Conspiracy a ...


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