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Third Circuit: USSG Commentary not Controlling over Guidelines: Abreu

The Third Circuit followed the text of the United States Sentencing Guidelines, which held that “crime of violence” did not encompass conspiracy crimes even though the guidelines did encompass them.

FACTS:  Felon in Possession case with Enhancement for Prior Crime of Violence

Abreu pled guilty to felon in possession of a weapon.  In preparing his guidelines the probation department stated that USSG 2k2.1(a)(4) applied.  That thing sets a base offense level of 20 if:

the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.

Here, that enhancement was based on a conviction of conspiracy to commit second-degree aggravated assault from New Jersey.  The impact was that the total offense level was 22 and an advisory range of 51-63 months (without this enhancement Abreu argued for an offense level of 16 and a guidelines range of 27-33 months).

The government argued that the court should accept this enhancement because that conspiracy charge should be considered a crime of violence.  The government argued that the COMMENTARY (not the actual guidelines, but the commentary) to 2k2.1 gives the same meaning to “crime of violence” as USSG 4B1.2 and the COMMENTARY to USSG 4B1.2 includes conspiracy to commit a crime of violence.  So in other words, the guidelines themselves don’t say anything about conspiracy to commit a crime of violence counting but the comments do.

Abreu argued that the conspiracy charge requires only an agreement to commit an offense and does not include the actual offense of crime of violence.  Abreu argued that the commentary is inconsistent with the text of the guidelines and that his conspiracy conviction did not qualify him for an enhancement.  The district court sided with the government.  Abreu was sentenced to 56 months.  Abreu appealed, citing Nasir.

Holding:  the District Court Erred, the Commentary should not be considered

Agencies and Regulations

The United States Sentencing Commission is an agency and the United States Sentencing Guidelines are Regulations.  Agencies are given deference as to their regulations but only if the regulation is genuinely ambiguous.  Kisor v. Wilkie, 139 S. Ct. 2400 (2019).  In order for the court to determine whether the regulations are ambiguous the court should look at all the traditional tools of construction.

The Third Circuit took all this up in Nasir vs. United States, where they “took a second look at 4B1.2 and concluded that the text of the ‘controlled substance offense’ prong unambiguously excluded inchoate crimes” and “declined to defer to the commentary, …, and vacated the defendant’s sentence under the Career-Offender Guideline, holding that inchoate crimes do not qualify as ‘controlled substance offenses’ under 4B1.2.

How to Interpret These Regulations

There are two applicable ways to interpret this regulation:  the first is the whole act rule, as in definitions of terms that appear in other sections may be designed for general applicability.  The second is the case-by-case basis rule, meaning that a definition’s “applicability to sections other than those expressly referenced . . . on a case by case basis.”

The court indicated that conspiracy offenses did not apply under 2K2.1 because first of all, “crime of violence” means the same thing in 2K2.1 as it does in 4B1.2, excluding conspiracies.  “And if the parties apply the case-by case approach, this is a case where § 4B1.2’s definition does carry over to a section ‘other than [that] expressly referenced.’ Id. After all, the same phrase not only appears in both sections, but it is also used in the same way: to enhance sentences based on prior convictions.”  Based on this, the court determined that conspiracies did not count as crimes of violence:

“In short, the plain text, structure, and purpose of the Guidelines Indicate that “there is only one reasonable construction” of “crime of violence” as used in § 2K2.1…and, just as in 4B1.2(a), that construction excludes conspiracy offenses. As a result, Abreu’s prior conviction for conspiracy to commit second-degree aggravated assault does not qualify him for an enhancement under 2K2.1(a)(4), and the District Court erred in applying that enhancement.”

The Third Circuit Court vacated Abreu’s sentence and sent the case back down.

 No. 20-2786

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