US v. Scott: Scott was convicted of being a felon in possession of a firearm. At sentencing, his base offense level was enhanced due to a prior conviction being classified as a “crime of violence.” That offense was a Virginia conviction for “Use of Firearm in Commission of a Felony,” with the particular felony at issue being robbery. Over Scott’s objection, the district court concluded that the offense required the use or threatened use of force and was, therefore, a crime of violence. Scott was sentenced to 33 months in prison, the bottom of the advisory Guideline range.
On appeal, a divided Fourth Circuit reversed the district court’s decision and vacated Scott’s sentence. At bottom, the court concluded that either the firearm offense itself or the underlying felony (the elements of which must be proven beyond a reasonable doubt) had to require the use or threatened use of force, but neither did in this case. The court primarily focused on the underlying robbery offense, relying on its prior decisions in White and Parham, that held that Virginia robbery is not a crime of violence because of the rare (if not unique) means of potentially committing it by threatening to allege someone of committing sodomy, to conclude that, categorically, there was no requirement of force or the threat of force.
Judge Niemeyer dissented, noting that this decision creates a split with the First Circuit on the issue using a “commonsense reading of the statute.”
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