Week of March 19, 2018 through March 23, 2018
Pedro Jimenez-Cedillo v. Jefferson Sessions III (Harris 3/20/2018): The Fourth Circuit held that the Board of Immigration Appeals may not order an alien be removed based on its new position on “crimes of moral turpitude,” unless the Board first explains its rationale for adopting a position contrary to its own long-standing precedent. The court remanded the case to the Board to provide suitable reasons for the change in policy and to decide whether the new policy should apply retroactively to the petitioner and to others who may have made guilty pleas in reliance on the old rule. Full Opinion
United States v. Taison McCollum (Duncan 3/20/2018): The Fourth Circuit held that conspiracy to commit murder under 18 U.S.C. § 1959(a)(5) is not a crime of violence giving rise to a sentencing enhancement under § 2K2.1(a)(4)(A) of the U.S. Sentencing Guidelines. The court vacated the district court’s enhanced sentence and remanded the case for resentencing. Full Opinion
United States v. Taison McCollum, No. 17-4296
Decided: March 20, 2018
The Fourth Circuit held that conspiracy to commit murder under 18 U.S.C. § 1959(a)(5) is not a crime of violence for the purposes of § 2K2.1(a)(4)(A) of the U.S. Sentencing Guidelines. Since the enumerated offenses in the Guidelines are to be given their “generic, contemporary meaning,” and since the generic meaning of conspiracy requires an overt act while the statutory meaning does not, a prior conviction for conspiracy under the statute does not categorically qualify as a prior conviction for conspiracy under the generic definition adopted by the Guidelines. It was therefore improper for the district court to apply an enhanced sentence in a case where the defendant had been previously convicted of conspiracy to commit murder under the statute.
Appellant Taison McCollum was convicted of illegal possession of a firearm under 18 U.S.C. § 922(g). The district court imposed an enhanced sentence on the grounds that McCollum’s prior conviction for conspiracy to commit murder in aid of racketeering under 18 U.S.C. § 1959(a)(5) qualified as a crime of violence increasing McCollum’s base offense level under the U.S. Sentencing Guidelines. The Guidelines impose a higher base offense level for 922(g) violations if the defendant has a prior conviction for any of multiple enumerated offenses, including murder, or for conspiracy to commit any such offense.
In vacating the enhanced sentence, the court relied on the Supreme Court’s opinion in Taylor v. United States, 495 U.S. 575 (1990). In Taylor, the Supreme Court mandated that the undefined offenses in the Sentencing Guidelines be given their generic meanings as used in the criminal codes of a majority of states. The Fourth Circuit followed the Ninth and Tenth Circuits in holding that the generic definition of conspiracy requires an overt act, based on its usage in the criminal codes of thirty-six states, the District of Columbia, Puerto Rico, Guam and the Virgin Islands. Since § 1959(a)(5) does not share that requirement, the minimum conduct sufficient to satisfy § 1959(a)(5) would not meet the elements of the generic meaning of conspiracy. The court therefore held that § 1959(a)(5) violations did not categorically count as crimes of violence meriting sentencing enhancement. Judge Traxler, concurring, expressed the hope that the law would change to avoid such unintuitive results in the future. Judge Wilkinson, dissenting, urged a common sense, plain text reading of the Guidelines such that “plotting to murder one’s fellow human beings” would constitute a crime of violence.
Accordingly, the court vacated the sentence imposed by the district court and remanded the case for resentencing.
Zachary W. Jones