Not a COV: federal crime of conspiracy to commit murder in aid of racketeering

US v. McCollum:  McCollum pleaded guilty to possession of a firearm by a convicted felon.  The PSR indicated McCollum had two prior convictions that qualified as crimes of violence: one for aggravated manslaughter in NJ, and one for conspiracy to commit murder in aid of racketeering.  McCollum objected, and the district court sustained his objection to the NJ conviction, but not the conspiracy conviction.  That conviction elevated his base offense level from 14 to 20.  McCollum raised the issue of whether this prior conviction was a crime of violence. 

The Fourth Circuit held, under constraint, that conspiracy to commit murder in aid of racketeering is not a crime of violence since it does not require an overt act, while conspiracy under the Guidelines does. It found conspiracy to commit murder in aid of racketeering is broader than generic conspiracy. 

The Fourth Circuit began its analysis with a determination that the categorical approach applies to federal crimes, like conspiracy to commit murder in aid of racketeering, as the Sentencing Commission publications and the guidelines text strongly suggest that it does, and there is no textual or analytical basis in precedent to distinguishing the treatment of state and federal statutes to determine whether a predicate offense is a crime of violence. 

The Fourth Circuit then proceeded to conduct the 4-part categorical approach.  First, it determined the relevant offense of comparison.  Second, it determined the elements of generic conspiracy, and found that generic conspiracy requires an overt act (more than 32 states require an overt act, which it found sufficient to establish the contemporary definition as such).  Third, it compared the elements of the crime of conviction to those of the enumerated offense.  Last, it considered whether the scope of the conduct criminalized by statute is categorically overbroad when compared to the generic definition of the Guideline crime. 

The government did not dispute that McCollum’s conspiracy conviction did not require an overt act.  As such, it criminalizes a broader range of conduct than that covered by generic conspiracy, and it is not categorically a crime of violence.