The Criminal Defense Blog


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In United States v. Henderson, No. 18-1894, at *2-3 (3d Cir. Mar. 29, 2023), Henderson was indicted for possession with intent to distribute 40 grams or more of fentanyl, a crime to which she pleaded guilty without a plea agreement. The District Court applied the career offender enhancement, raising the applicable Guideline range from 70 to 87 months' imprisonment to 188 to 235 months' imprisonment. This enhancement was based on two prior convictions: one for possession with intent to deliver heroin, and the other for conspiracy to commit robbery. The District Court deemed the latter as a "crime of violence," leading to Henderson's appeal against the application of the career offender enhancement. Tyler Criminal Defense Blog 

On appeal, the Third Circuit noted that he District Court deviated from the traditional understanding that conspiracy does not qualify as a "crime of violence." The Sentencing Guideline's commentary includes inchoate offenses like conspiracy, yet United States v. Abreu explicitly excluded such offenses from the definition of a "crime of violence."

Abreu objected on the ground that conspiracy to commit a crime of violence requires only an agreement to commit an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1), and does not itself include that element. 

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, Kisor139 S. Ct. at 2415, 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.

United States v. Abreu, 32 F.4th 271, 278 (3d Cir. 2022)

In United States v. Preston, the Court deviated from Abreu, suggesting that the elements of the target offense of a conspiracy could subsume the elements of the conspiracy itself, thus making a conspiracy to commit a crime of violence a crime of violence itself. However, this interpretation went against the Supreme Court's decision in United States v. Mathis, which highlighted that a crime's elements are those parts that must be proved beyond a reasonable doubt.

In coming to this conclusion, however, we explicitly noted that it went "beyond the general elements of criminal conspiracy"-an approach disallowed by the Supreme Court in United States v. Mathis. As the Mathis Court noted, a crime's elements are "the constituent parts of a crime's legal definition, which must be proved beyond a reasonable doubt."

United States v. Henderson, No. 18-1894, at *11 (3d Cir. Mar. 29, 2023).

The Third Circuit went on to hold that Henderson's case satisfied all four prongs of the plain error review standard—the error was clear and obvious, affecting substantial rights and impacting the outcome of the proceedings. Despite Henderson receiving a lower sentence than the guideline range, the sentence was above the range that would have otherwise applied without the career offender enhancement.

“Because the District Court plainly erred, we will vacate Henderson's sentence and remand for resentencing. In doing so, we also hold that Preston is overruled by the Supreme Court's decisions in Kisor and Mathis.” United States v. Henderson, No. 18-1894, at *17 (3d Cir. Mar. 29, 2023)

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

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