United States v. Gore

Case: 09-41064 Document: 00511425053 Page: 1 Date Filed: 03/25/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 25, 2011

No. 09-41064 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,
v.

THOMAS GORE,

Defendant–Appellant.

Appeal from the United States District Court
for the Eastern District of Texas

Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
In this direct appeal Thomas Gore contends that his prior Texas conviction
for conspiracy to commit aggravated robbery is not a violent felony within the
meaning of the Armed Career Criminal Act (ACCA)1 and that the district court
erred in sentencing him as a career offender. We affirm.

I
Gore pled guilty to possessing a firearm after being convicted of a felony,
in violation of 18 U.S.C. § 922(g). The presentence report recommended that the

1
18 U.S.C. § 924(e).
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district court sentence Gore as a career offender pursuant to the ACCA based on
Gore’s three prior state convictions, two for serious drug offenses and the other
for conspiracy to commit aggravated robbery. Gore objected to the presentence
report, arguing that conspiracy to commit aggravated robbery is not a violent
felony under the ACCA and that he therefore should be sentenced within a
Guidelines range of 33-41 months of imprisonment. The district court overruled
the objection and sentenced Gore to 180 months of imprisonment. This appeal
followed.

II
We review de novo the district court’s interpretation and application of a
statute.2 The ACCA provides that a defendant convicted for possession of a
firearm is subject to a mandatory sentence of fifteen years’ imprisonment if he
has three prior convictions “for a violent felony or a serious drug offense, or
both.”3 The ACCA defines “violent felony” to include “any crime punishable by
imprisonment for a term exceeding one year” that
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.4
It is undisputed that conspiracy to commit aggravated robbery is a crime that
is punishable by imprisonment for a term exceeding one year.5

2
United States v. Harrimon, 568 F.3d 531, 533 (5th Cir.), cert. denied, 130 S. Ct. 1015
(2009).
3
18 U.S.C. § 924(e)(1).
4
Id. § 924(e)(2)(B).
5
See TEX . PENAL CODE § 29.03(b) (defining aggravated robbery as a “felony of the first
degree”); id. § 15.02(d) (defining criminal conspiracy as an offense that “is one category lower

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A
Gore contends, and we agree, that under Texas law, a conviction for
conspiracy to commit aggravated robbery does not have “as an element the use,
attempted use, or threatened use of physical force against the person of
another.”6 Three Texas statutes must be considered to obtain the elements of
the offense of conspiracy to commit aggravated robbery. The first is the
conspiracy statute, Texas Penal Code § 15.02, which provides that
A person commits criminal conspiracy if, with intent that a felony
be committed:
(1) he agrees with one or more persons that they or one
or more of them engage in conduct that would
constitute the offense; and
(2) he or one or more of them performs an overt act in
pursuance of the agreement.7
When a conspiracy offense is at issue, our analysis includes “an
examination of the elements of the target offense of the conspiracy conviction.” 8
Accordingly, we must consider the elements of the aggravated robbery statute
and the statute upon which it expressly builds, the robbery statute. The Texas
robbery statute, Texas Penal Code § 29.02, provides that

A person commits an offense if, in the course of committing theft as
defined in Chapter 31 and with intent to obtain or maintain control
of the property, he:

than the most serious felony that is the object of the conspiracy”); id. § 12.33(a) (“An individual
adjudged guilty of a felony of the second degree shall be punished by imprisonment in the
Texas Department of Criminal Justice for any term of not more than 20 years or less than 2
years.”).
6
18 U.S.C. § 924(e)(2)(B)(i).
7
TEX . PENAL CODE § 15.02(a).
8
United States v. Coleman, 609 F.3d 699, 705 (5th Cir. 2010) (analyzing the elements
of a conspiracy offense to determine whether the business practice exception to the federal
felon in possession statute applied to defendant).

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(1) intentionally, knowingly, or recklessly causes bodily
injury to another; or
(2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death.9
The Texas aggravated robbery statute, Texas Penal Code § 29.03, provides that
A person commits an offense when he commits robbery as defined
in Section 29.02, and he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens
or places another person in fear of imminent bodily
injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.10
A factfinder could convict a defendant of conspiracy to commit aggravated
robbery by concluding that there was an agreement to (1) commit robbery and
(2) engage in one or more of the acts enumerated in the aggravated robbery
statute, without finding that physical force against the person of another was
actually used or that there was an attempted or threatened use of such force.11
Accordingly, conspiracy to commit aggravated robbery does not come within the
definition of “violent felony” in subsection (i) of 18 U.S.C. § 924(e)(2)(B).12

9
TEX . PENAL CODE § 29.02(a).
10
Id. § 29.03(a).
11
See, e.g., Thompson v. State, 54 S.W.3d 88, 95 (Tex. App.—Tyler 2001, pet. denied)
(concluding that the act of using deception to separate two intended robbery victims satisfied
the overt-act requirement of a conspiracy to commit robbery).
12
See United States v. White, 571 F.3d 365, 369 (4th Cir. 2009) (holding that a
conviction under North Carolina law for conspiracy to commit robbery with a dangerous
weapon “does not have ‘as an element the use, attempted use, or threatened use of physical
force against the person of another’”), cert. denied, 130 S. Ct. 1140 (2010); United States v.
King, 979 F.2d 801, 803 (10th Cir. 1992) (holding that a conviction under New Mexico law for
conspiracy to commit armed robbery was not a violent felony within the meaning of

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We respectfully disagree with the Third Circuit’s reasoning in this regard.
That court held that a conspiracy to commit robbery came within the “force”
clause because Pennsylvania law, under which the prior conviction was obtained,
“requires that the crime that was the object of the conspiracy be defined for the
jury” and therefore that “the elements of criminal conspiracy to commit robbery
. . . subsume the elements of robbery.”13 In our view, this conclusion was
incorrect. “[A]n element of a crime is a fact that must be proven beyond a
reasonable doubt to obtain conviction.”14 The state of Pennsylvania could obtain
a conviction of conspiracy without proving beyond a reasonable doubt that the
defendant committed the crime that was the conspiracy’s object.

B
The primary question presented by this appeal is whether a conviction
under Texas law for conspiracy to commit aggravated robbery is within what
many courts have called the “residual clause”15 of the definition of “violent
felony,” which is the phrase “or otherwise involves conduct that presents a
serious potential risk of physical injury to another” that follows the enumerated
offenses (burglary, arson, extortion, or an offense that involves use of explosives).
Gore’s first contention is that applying the familiar “categorical”16 or “modified

§ 924(e)(2)(B)(i) after examining the elements of the New Mexico offense).
13
United States v. Preston, 910 F.2d 81, 86 (3d Cir. 1990).
14
United States v. Villegas-Hernandez, 468 F.3d 874, 881 (5th Cir. 2006) (citation and
internal quotation marks omitted).
15
See, e.g., Johnson v. United States, __ U.S. __, 130 S. Ct. 1265, 1274 (2010); Chambers
v. United States, 555 U.S. 122, 129 S. Ct. 687, 689 (2009); United States v. Davis, 487 F.3d 282,
285 (5th Cir. 2007).
16
See, e.g., James v. United States, 550 U.S. 192, 201-02 (2007) (determining whether
“attempted burglary, as defined by Florida law, is an offense that ‘involves conduct that
presents a serious potential risk of physical injury to another’” by “employ[ing] the ‘categorical

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categorical” approach,17 rather than considering the actual conduct underlying
his prior conviction, compels the conclusion that the statutes defining conspiracy
to commit aggravated robbery are over inclusive in that they include conduct
that would constitute a “violent felony” and conduct that would not. Gore
contends that his prior conviction did not require him to commit an overt act,
threaten an individual, or possess a firearm in the commission of the offense.
The only document pertaining to Gore’s prior conviction in our record is
the indictment. Gore correctly observes that we cannot deduce from the
indictment whether his conviction was for a conspiracy to commit conduct
described in subsection (a)(3) of the Texas aggravated robbery statute or another
subsection of that statute.18 Gore, Sara Gore, and Ronald Robinette were
charged with “intentionally and knowingly with intent that the felony offense of
aggravated robbery be committed, agree[ing] among themselves and with one
another that [Robinette] would engage in conduct that would constitute the
offense of aggravated robbery.” The indictment further alleged that Robinette,
not Gore, “performed an overt act in pursuance of that agreement,” which

approach,’” that is, considering “whether the elements of the offense are of the type that would
justify its inclusion within the residual provision, without inquiring into the specific conduct
of this particular offender”); Taylor v. United States, 495 U.S. 575, 598, 602 (1990) (construing
the ACCA to mean that enumerated offenses were intended by Congress to be given their
“generic, contemporary meaning” and that this approach “generally requires the trial court to
look only to the fact of conviction and the statutory definition of the prior offense”; “[t]his
categorical approach, however, may permit the sentencing court to go beyond the mere fact of
conviction in a narrow range of cases where a jury was actually required to find all the
elements of [the] generic [offense]”).
17
See, e.g., Johnson, 130 S. Ct. at 1273 (“When the law under which the defendant has
been convicted contains statutory phrases that cover several different generic crimes, some
of which require violent force and some of which do not, the ‘modified categorical approach’
that we have approved permits a court to determine which statutory phrase was the basis for
the conviction by consulting the trial record—including charging documents, plea agreements,
transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms.” (internal citation omitted)).
18
See TEX . PENAL CODE § 29.03.

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included “intentionally and knowingly” placing a woman “in fear of imminent
bodily injury and death by using and displaying a deadly weapon, namely a
firearm,” while committing theft of money from her. The indictment does not
charge that the conspiracy specifically contemplated that Robinette would use
or exhibit a firearm to place the intended victim in fear of bodily injury or death.
Gore asserts that the least culpable19 means of committing a conspiracy to
commit aggravated robbery under Texas law is an agreement to commit robbery
and threaten or place a person in fear of imminent bodily injury or death if that
person is 65 years of age or older or is disabled.20 Gore does not contend that
Texas law can plausibly be construed to permit a conviction based on an
agreement to recklessly21 cause bodily injury to a person who is disabled or is 65
years or older while committing robbery.22 Such a construction could arguably
be the least culpable means of committing a conspiracy to commit aggravated
robbery. While a very literal reading of the three pertinent statutes would allow
a conviction based on such an agreement, we note that applying the categorical

19
See, e.g., Johnson, 130 S. Ct. at 1269 (analyzing whether a prior conviction for battery
was a “violent felony” within the meaning of the ACCA by considering “the least of” three
disjunctive means of committing the offense under a state statute and concluding “nothing in
the record of . . . conviction permitted the District Court to conclude that it rested upon
anything more than the least of these acts”); United States v. Rosas-Pulido, 526 F.3d 829, 831
(5th Cir. 2008) (explaining that in determining if a prior conviction was for a “crime of
violence” within the meaning of the United States Sentencing Guidelines, “we ‘consider each
aspect of the offense’s definition, including alternative bases for conviction, and determine
whether the least culpable act constituting a violation of that statute constitutes [an
enumerated offense]’” (brackets omitted) (quoting United States v. Gonzalez-Ramirez, 477 F.3d
310, 315-16 (5th Cir. 2007)).
20
See TEX . PENAL CODE § 29.03(a)(3).
21
See id. § 29.02(a)(1) (defining “robbery,” an element of aggravated robbery, to include
“recklessly” causing bodily injury to another in the course of committing theft and with the
intent to obtain or maintain control of the property).
22
See id. § 29.03(a)(3) (requiring, in relevant part, “bodily injury” to a person who is
disabled or 65 years or older in order for robbery to become aggravated robbery under this
subsection).

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approach does not require courts to conceive of every imaginable means by which
a statute might possibly be violated. The Supreme Court has explained that
to find that a state statute creates a crime outside the generic
definition of a listed crime in a federal statute requires more than
the application of legal imagination to a state statute’s language. It
requires a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime.23
The Supreme Court has held that a defendant “must at least point to his own
case or other cases in which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues.”24 Gore has not done so nor
attempted to do so. We therefore accept, with one modification, Gore’s
contention that the least culpable means of committing conspiracy to commit
aggravated robbery under Texas law is to agree to 1) commit robbery and 2)
threaten or place a person, who is 65 years of age or older or is disabled, in fear
of imminent bodily injury or death.25 Gore attempts to ignore the requirement
under Texas law that one or more of the conspirators “performs an overt act in
pursuance of the agreement” as an element of a conviction for conspiracy.26 Gore
could not have been convicted unless an overt act in pursuance of the conspiracy
was performed.
We must determine, therefore, whether the least culpable means of
committing aggravated robbery under Texas law, including an overt act by one

23
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
24
Id.
25
See TEX . PENAL CODE § 29.03(a)(3).
26
See id. § 15.02(a)(2).

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of the conspirators, “involves conduct that presents a serious potential risk of
physical injury to another.” 27

III
Gore asserts that the residual clause of the ACCA categorically excludes
conspiracy offenses, arguing that if Congress had intended for the residual
clause to include conspiracies, it would have said so.28 Gore relies upon our
court’s decision in United States v. Martinez, in which we held that a conviction
under Texas law for attempted burglary was not a “violent felony” within the
meaning of the ACCA.29 Part of our reasoning in that case was that “if Congress

27
18 U.S.C. § 924(e)(2)(B)(ii).
28
See, e.g., 18 U.S.C. § 3559(c)(2)(F)(i), defining “serious violent felony”:

(F) the term “serious violent felony” means–

(i) a Federal or State offense, by whatever designation and wherever
committed, consisting of murder (as described in section 1111);
manslaughter other than involuntary manslaughter (as described in
section 1112); assault with intent to commit murder (as described in
section 113(a)); assault with intent to commit rape; aggravated sexual
abuse and sexual abuse (as described in sections 2241 and 2242); abusive
sexual contact (as described in sections 2244(a)(1) and (a)(2));
kidnapping; aircraft piracy (as described in section 46502 of Title 49);
robbery (as described in section 2111, 2113, or 2118); carjacking (as
described in section 2119); extortion; arson; firearms use; firearms
possession (as described in section 924(c)); or attempt, conspiracy, or
solicitation to commit any of the above offenses; and

(ii) any other offense punishable by a maximum term of imprisonment
of 10 years or more that has as an element the use, attempted use, or
threatened use of physical force against the person of another or that, by
its nature, involves a substantial risk that physical force against the
person of another may be used in the course of committing the
offense . . . .

(emphasis added).
29
954 F.2d 1050, 1054 (5th Cir. 1992).

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had wished to include attempted burglary as an offense warranting sentence
enhancement, it easily could have done so.”30 We observed that “[t]he
Government . . . presents no argument from the legislative history that the
Congress even considered including the crime of attempted burglary—or any
other attempt—when it was considering § 924(e).” 31
Our decision in Martinez issued more than a decade before the Supreme
Court’s decision in James v. United States, in which the Supreme Court held
that attempted burglary as defined by Florida law was a “violent felony” within
the meaning of the ACCA’s residual clause.32 In James, the Court expressly
rejected the argument that the ACCA categorically excludes “attempt” offenses
from the residual clause.33 The Court first examined the text and structure of
the ACCA.34 The Court reasoned that “the most relevant common attribute of
the enumerated offenses of burglary, arson, extortion, and explosives use is not
‘completion.’”35 Instead, these enumerated offenses “create significant risks of
bodily injury or confrontation that might result in bodily injury.” 36 The Court
concluded, “[n]othing in the statutory language supports the view that Congress
intended to limit this category solely to completed offenses.” 37
The Supreme Court in James then examined the legislative history of the
ACCA. We will not repeat that discussion here, in the interest of brevity. We

30
Id. at 1053.
31
Id.
32
550 U.S. 192, 195 (2007).
33
Id. at 198.
34
Id. at 198-200.
35
Id. at 199.
36
Id.
37
Id. at 200.

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note only that the Court recognized that in the deliberations leading up to the
ACCA’s adoption in 1984, the House rejected a version that would have imposed
increased incarceration periods if there were two prior convictions for “‘any
robbery or burglary offense, or a conspiracy or attempt to commit such an
offense.’”38 However, the Court then noted that Congress expanded the range of
predicate offenses under the ACCA in 1986, and, therefore, the Court concluded
that “Congress’ rejection of express language including attempt offenses in the
1984 provision is not dispositive. Congress did not consider, much less reject,
any such language when it enacted the 1986 amendments.” 39 The Court held
that what Congress “did consider, and ultimately adopted, was a broadly worded
residual clause that does not by its terms exclude attempt offenses, and whose
reach is broad enough to encompass at least some such offenses.” 40
The Supreme Court’s reasoning with regard to attempted offenses and
Congress’ intent in adopting the residual clause applies with equal force to
conspiracies. The residual clause does not by its terms exclude all conspiracy
offenses. Its “reach is broad enough to encompass at least some such offenses.” 41
We therefore reject Gore’s argument to the contrary.

IV
Gore contends that his prior offense of conspiring to commit aggravated
robbery does not present “a serious potential risk of physical injury to another”
because he did not commit any overt act, he did not threaten an individual or
possess a firearm, and he was not in the vicinity of any robbery. He also notes

38
Id. (quoting S. 52, 98th Cong., 2d Sess., § 2 (1984)).
39
Id. at 201.
40
Id.
41
Id.

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that under Texas law, merely stating “I’ve got a gun” satisfies the requirement
of threatening or placing a person in fear of imminent bodily injury or death.42
Possession of a gun is not necessary.
In determining if a prior conviction is a “violent felony,” we are guided by
three relatively recent decisions of the Supreme Court construing and applying
the ACCA’s residual clause, James v. United States,43 Begay v. United States,44
and Chambers v. United States.45 These precedents persuade us that Gore’s
conviction for conspiracy to commit aggravated robbery was a crime that
presented a serious potential risk of physical injury to another.
In James, the Supreme Court concluded that in order to determine
whether an offense, including an “attempt” offense, was a “violent felony” within
the meaning of § 924(e)(2)(B)(ii)’s residual clause, courts consider “whether the
elements of the offense are of the type that would justify its inclusion within the
residual provision, without inquiring into the specific conduct of this particular
offender.”46 The Court then observed that although the Florida attempt statute
under consideration was broad, “the Florida Supreme Court has considerably
narrowed its application in the context of attempted burglary, requiring an ‘overt
act directed toward entering or remaining in a structure or conveyance.’” 47
“Mere preparation is not enough” under Florida law, the Supreme Court
observed.48 The Supreme Court then framed its inquiry under the residual

42
See United States v. Davis, 487 F.3d 282, 286 (5th Cir. 2007).
43
550 U.S. 192 (2007).
44
553 U.S. 137 (2008).
45
555 U.S. 122, 129 S. Ct. 687 (2009).
46
550 U.S. at 202.
47
Id. (quoting Jones v. State, 608 So. 2d 797, 799 (Fla. 1992)).
48
Id.

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clause in that case: “The pivotal question, then, is whether overt conduct
directed toward unlawfully entering or remaining in a dwelling, with the intent
to commit a felony therein, is ‘conduct that presents a serious potential risk of
physical injury to another.’”49
Texas law requires “an overt act in pursuance of the agreement” as an
element of a conspiracy conviction.50 This is similar to the Model Penal Code’s
requirement of “an overt act in pursuance of such conspiracy” except when the
object of the conspiracy is to commit a felony in the first or second degree.51
While we have found no Texas cases delineating the outer limits of what
constitutes an overt act, Texas courts have held that the overt act need not itself
be a criminal act but must take “the conspiracy beyond a mere meeting of the
minds.”52 The overt act must be taken in pursuance of the “agreement,” which
must be that the conspirators agree, “with the intent that a felony be
committed,” that “they or one or more of them engage in conduct that would
constitute the offense.”53 Applying the “least culpable,” “modified categorical
approach,” Gore could not have been convicted under Texas law and his
indictment unless he, with intent that a felony be committed, agreed that

49
Id. at 203 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
50
TEX . PENAL CODE § 15.02(a)(2).
51
MODEL PENAL CODE § 5.03(5) (“Overt Act. No person may be convicted of conspiracy
to commit a crime, other than a felony of the first or second degree, unless an overt act in
pursuance of such conspiracy is alleged and proved to have been done by him or by a person
with whom he conspired.”).
52
McCann v. State, 606 S.W.2d 897, 900 (Tex. Crim. App. 1980) (holding that an overt
act in furtherance of a conspiracy to commit burglary of a habitation had been shown by
evidence that the conspirators discussed robbing a safe located in a home, one of them drew
a sketch of the home and the layout of the utility room in which the safe was located, they
drove to the home and into its driveway, one of them pointed out a sliding glass door that was
usually left open for the maid, and there were discussions about how to split the contents of
the safe among the conspirators).
53
TEX . PENAL CODE § 15.02(a).

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Robinette would commit robbery and threaten or place a disabled person or a
person 65 years of age or older in fear of imminent bodily injury or death, and
unless Robinnette committed an overt act in furtherance of this agreement. We
conclude that this is “conduct that presents a serious potential risk of physical
injury to another.” 54
This court has previously recognized that the “defining feature of robbery
under the Texas statute is the actual or threatened assaultive conduct.” 55 We
observed that “[t]o commit robbery, an individual must interact with the victim
in order to cause bodily injury or place the victim in fear of it. Such interaction
to take another’s property creates a serious potential risk of a violent
confrontation between the robber and the victim.”56 This is true “[e]ven when
the robber has no weapon” because of “the very real possibility of confrontation
between the robber and victim.” 57
There was no requirement that an actual confrontation occur to sustain
Gore’s conviction under Texas law. However, the Supreme Court’s reasoning in
James with respect to attempted burglary seems to us equally applicable to
Gore’s offense. The Supreme Court recognized that “[t]he main risk of burglary
arises not from the simple physical act of wrongfully entering onto another’s
property, but rather from the possibility of a face-to-face confrontation between
the burglar and a third party—whether an occupant, a police officer, or a

54
18 U.S.C. § 924(e)(2)(B)(ii).
55
United States v. Davis, 487 F.3d 282, 286 (5th Cir. 2007) (citing Purser v. State, 902
S.W.2d 641, 647 (Tex. App.—El Paso 1995, pet. ref’d) (stating “[t]he gravamen of robbery is
the assaultive conduct, and not the theft”)).
56
Id. (internal citation and footnote omitted).
57
Id. at 287.

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bystander—who comes to investigate.”58 The Supreme Court held in James that
“[a]ttempted burglary poses the same kind of risk.”59
We are cognizant that the decision in James cited our court’s decision in
United States v. Martinez,60 in which we held that attempted burglary under
Texas law did not involve a serious potential risk of bodily injury because the
defendant was not required to have been in the vicinity of any building.
However, the Supreme Court expressed no opinion as to whether that case was
correctly decided and expressly declined to “consider whether the more
attenuated conduct encompassed by such laws presents a potential risk of
serious injury under ACCA.”61 But other analysis in James weighs against
Gore’s argument that his prior crime presented no serious risk of injury to
another.
In James, the Supreme Court looked to the United States Sentencing
Commission’s career offender enhancement as “evidence that a crime like
attempted burglary poses a risk of violence similar to that presented by the
completed offense.”62 Noting that the career offender enhancement’s “definition
of a predicate ‘crime of violence’ closely tracks ACCA’s definition of ‘violent
felony,’” the Supreme Court recognized that “[t]he Commission has determined
that ‘crime[s] of violence’ . . . ‘include the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.’”63 The Commission, the

58
James v. United States, 550 U.S. 192, 203 (2007).
59
Id.
60
Id. at 205 n.4 (citing United States v. Martinez, 954 F.2d 1050, 1054 (5th Cir. 1992)).
61
Id. at 206.
62
Id. at 207.
63
Id. at 206 (quoting U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2) & cmt. n.1
(2006)).

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Supreme Court observed, based this judgment on review of empirical sentencing
data, and the Commission’s judgment “presumably reflects an assessment that
attempt crimes often pose a similar risk of injury as completed offenses.”64 While
the Court was “not bound by the Sentencing Commission’s conclusion,” it was
“further evidence” that attempted burglary presented a serious risk of injury to
another person.65 We likewise find the Commission’s judgments in this area to
be evidence that a conspiracy to commit aggravated robbery presents a risk of
injury similar to that of aggravated robbery, even if the defendant was far from
the victim at the time of the crime.
There is additional reasoning in James that is persuasive in the present
case. It had been argued that courts “cannot treat [a crime] as an ACCA
predicate offense unless all cases present” a serious risk of bodily injury.66 This
construction of the statute was rejected. “One could, of course, imagine a
situation in which attempted burglary might not pose a realistic risk of
confrontation or injury to anyone—for example, a break-in of an unoccupied
structure located far off the beaten path and away from any potential
intervenors.”67 This was immaterial because the “ACCA does not require
metaphysical certainty. Rather, § 924(e)(2)(B)(ii)’s residual provision speaks in
terms of a ‘potential risk.’ These are inherently probabilistic concepts.” 68 The
Supreme Court held that the approach championed by the defendant in James
“misapprehends Taylor’s categorical approach. We do not view that approach
as requiring that every conceivable factual offense covered by a statute must

64
Id.
65
Id. at 207.
66
Id.
67
Id.
68
Id.

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No. 09-41064

necessarily present a serious potential risk of injury before the offense can be
deemed a violent felony.”69 The Court gave two examples: “an attempted murder
where the gun, unbeknownst to the shooter, had no bullets,” and “an extortion
scheme where an anonymous blackmailer threatens to release embarrassing
personal information about the victim unless he is mailed regular payments.” 70
The Court explained, “[i]n both cases, the risk of physical injury to another
approaches zero. But that does not mean that the offenses of attempted murder
or extortion are categorically nonviolent.”71 The Court held, “[a]s long as an
offense is of a type that, by its nature, presents a serious potential risk of injury
to another, it satisfies the requirements of [the] residual provision.” 72
An agreement to commit aggravated robbery presents a serious potential
risk of injury even if it is agreed that a conspirator other than the defendant
whose conviction is at issue would actually carry out the aggravated robbery.
The existence of the agreement itself presents a serious potential risk that the
agreement will be carried forward. As the Supreme Court has recognized in
other contexts, a “conspiracy poses a ‘threat to the public’ over and above the
threat of the commission of the relevant substantive crime—both because the
‘combination in crime makes more likely the commission of other crimes’ and
because it ‘decreases the probability that the individuals involved will depart
from their path of criminality.’”73 This is particularly true when an overt act in

69
Id. at 208.
70
Id.
71
Id.
72
Id. at 209.
73
United States v. Jimenez Recio, 537 U.S. 270, 275 (2003) (brackets omitted) (quoting
Callanan v. United States, 364 U.S. 587, 593-94 (1961)).

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furtherance of the agreement is performed. We need not consider whether an
agreement without such an overt act would suffice for purposes of the ACCA.74
Our conclusion that Gore’s prior conviction was for a “violent felony” is
consistent with the Supreme Courts decisions in Begay75 and Chambers,76 which
were decided subsequent to James.77 The Court held in Begay that a conviction
for driving under the influence of alcohol was not a “violent felony” within the
meaning of the residual clause.78 The Supreme Court explained in that case that
the ACCA’s residual provision does not encompass “every crime that ‘presents a
serious potential risk of physical injury to another.’”79 The Court construed the
residual provision “as limiting the crimes that [the] clause . . . covers to crimes
that are roughly similar, in kind as well as in degree of risk posed, to the
examples themselves,”80 which are “burglary, arson, extortion, or crimes
involving the use of explosives.”81 The Court observed that each of the ACCA’s
enumerated predicate crimes “all typically involve purposeful, ‘violent,’ and

74
Compare United States v. White, 571 F.3d 365, 368, 373 (4th Cir. 2009) (holding that
conspiracy to commit robbery with a dangerous weapon in violation of North Carolina law was
within the residual clause even though “the commission of an overt act is not an essential
element of a North Carolina criminal conspiracy”), cert. denied, 130 S. Ct. 1140 (2010), with
United States v. Whitson, 597 F.3d 1218, 1220, 1222-23 (11th Cir. 2010) (per curiam) (holding
that a conspiracy to commit a “‘strong arm’ robbery” was not a crime of violence within the
meaning of the career offender enhancement of United States Sentencing Guidelines § 4B1.1
because an overt act was not necessary for the conviction and “[n]o violence or aggression is
associated with forming an agreement”).
75
Begay v. United States, 553 U.S. 137 (2008).
76
Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009).
77
James v. United States, 550 U.S. 192 (2007).
78
Begay, 553 U.S. at 148.
79
Id. at 142 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
80
Id. at 143 (discussing 18 U.S.C. § 924(e)(2)(B)).
81
18 U.S.C. § 924(e)(2)(B)(ii)).

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‘aggressive’ conduct.”82 In Chambers, the Supreme Court held that failure to
report to a penal institution for incarceration was not a violent felony because
“[c]onceptually speaking, the crime amounts to a form of inaction, a far cry from
the purposeful, violent, and aggressive conduct” associated with the enumerated
offenses.83 The Court also held that an analysis of such crimes by the United
States Sentencing Commission, which found no instances of violence during the
commission of the offenses or later apprehension, “strongly supports the
intuitive belief that failure to report does not involve a serious potential risk of
physical injury.” 84
By contrast, the crime of conspiracy to commit aggravated robbery is
similar in kind as well as degree of risk posed to burglary, arson, extortion, or
crimes involving the use of explosives. The risk typically posed by the least
culpable means of committing conspiracy to commit aggravated robbery under
Texas law is that a victim will be confronted by the assaulter in an attempt to
take property from the victim by means of bodily injury or threatening or placing
another at risk of imminent bodily injury or death. The degree of risk is at least
as great as that posed by burglary or extortion,85 and the kind of risk is similar.
An agreement that another will commit aggravated robbery is purposeful
because it is made with intent that the crime be committed. It is violent because
it contemplates a physical assault or threatened assault against another person.
The fact that the agreement contemplates that a conspirator other than the

82
Begay, 553 U.S. at 144-45 (quoting Begay v. United States, 470 F.3d 964, 980 (10th
Cir. 2006) (MC CONNELL , J., dissenting)).
83
Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687, 692 (2009).
84
Id.
85
See Begay, 553 U.S. at 154 (SCALIA , J., concurring in the judgment) (“For some
crimes, the severity of the risk will be obvious. Crimes like . . . conspiracy to commit a violent
crime . . . certainly pose a more serious risk of physical injury to others than burglary.”
(internal citations omitted)).

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No. 09-41064

convicted defendant is to carry out the assault does not make the offense any
less violent. For the same reasons, an agreement to commit aggravated robbery
is an aggressive act. It contemplates aggression toward another.
The Supreme Court’s decision in Begay concluded that the ACCA’s
definition of “violent felony” is “conduct” that makes it “more likely that an
offender, later possessing a gun, will use that gun deliberately to harm a
victim.”86 The Court observed that conduct encompassed within the enumerated
offenses in § 924(e)(2)(B) and within the residual clause “focuses upon the special
danger created when a particular type of offender—a violent criminal or drug
trafficker—possesses a gun.”87 The Court explained, “an offender’s criminal
history is relevant to . . . the kind or degree of danger the offender would pose
were he to possess a gun.”88 Similarly, in Chambers, the Court reasoned that
“[t]he question is whether such an offender is significantly more likely than
others to attack, or physically to resist, an apprehender, thereby producing a
‘serious potential risk of physical injury.’”89
It can be argued that someone like Gore, who agrees that his co-
conspirator should actually carry out a violent crime, presents no risk of “pulling
the trigger” were he to possess a gun because he is averse to himself engaging
in assaultive conduct. In other words, it could be argued that such an offender
has exhibited a lack of willingness to carry out his intended violent crimes
personally. However, we do not think that such an argument can be squared
with the language used in the ACCA or the Supreme Court’s construction of it.
As already discussed, the Supreme Court, in applying the ACCA, found

86
Id. at 145 (majority opinion).
87
Id. at 146.
88
Id.
89
Chambers, 129 S. Ct. at 692 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

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persuasive the Sentencing Commission’s inclusion of attempt and conspiracy
offenses in the Commission’s definition of a “crime of violence” for purposes of its
career offender enhancement.90 We must also bear in mind that predicate acts
under the ACCA can consist entirely of drug convictions in which force or
threatened force or possession of a weapon played no part.91 We have previously
held that choosing to “intentionally enter the highly dangerous drug distribution
world” as a “seller—even if, hypothetically, the individual did not possess any
drugs at that time—is the kind of self-identification as a potentially violent
person that Congress was reaching by the ACCA.” 92 Congress intended for such
recidivist criminals to receive harsher prison sentences if they are convicted of
a gun crime under the ACCA.
Gore was convicted as an offender armed with a gun. The question is
whether Congress intended for increased incarceration to be imposed based on
his career criminal status. Even if an offender, such as Gore, agreed that
another co-conspirator would commit the crime, his participation in a conspiracy
to commit aggravated robbery—in which he must intend that the crime be
carried out—serves as a self-identification as the type of person who, if later
armed, is more likely to pull the trigger. We certainly cannot say that an
offender such as Gore is unlikely to pull the trigger simply because he did not
personally carry out an aggravated robbery but instead agreed with another that
such a violent act should be executed. We bear in mind the Supreme Court’s
analysis of the residual clause:
While there may be some attempted burglaries that do not present
a serious potential risk of physical injury to another, the same is

90
See James v. United States, 550 U.S. 192, 206 (2007) (quoting U.S. SENTENCIN G
GUIDELINES MANUAL § 4B1.2(a)(2) (2006)).
91
See 18 U.S.C. § 924(e).
92
United States v. Vickers, 540 F.3d 356, 365-66 (5th Cir. 2008).

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true of completed burglaries–which are explicitly covered by the
statutory language and provide a baseline against which to measure
the degree of risk that a nonenumerated offense must “otherwise”
present in order to qualify.
....
Rather, the proper inquiry is whether the conduct encompassed by
the elements of the offense, in the ordinary case, presents a serious
potential risk of injury to another.93
We are satisfied that conspiracy to commit aggravated robbery, in the ordinary
case, presents a serious risk of injury to another, similar in kind and degree to
the enumerated offenses in § 924(e)(2)(B)(ii).
We are not the first circuit court to consider the issue. The Fourth Circuit
has held that a prior conviction for conspiracy to commit robbery with a
dangerous weapon under North Carolina law was a violent felony within the
meaning of the ACCA’s residual clause, even though North Carolina law did not
require an overt act in furtherance of the conspiracy.94 The Fourth Circuit
reasoned that “[w]hen conspirators have formed a partnership in crime to
achieve a violent objective, and when they intend to achieve that object, they
have substantially increased the risk that their actions will result in serious
physical harm to others.”95 The court also observed, and we agree, that “a
previous conviction on the Conspiracy Offense reveals a callousness toward risk
and an increased likelihood of future violent conduct by an offender—conduct
that the ACCA was intended to interdict.”96 The Fourth Circuit further

93
James, 550 U.S. at 208.
94
United States v. White, 571 F.3d 365, 370-72 (4th Cir. 2009), cert. denied, 130 S. Ct.
1140 (2010).
95
Id. at 371.
96
Id.

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No. 09-41064

recognized, as do we, that a conspiracy offense “cannot be divorced from its
violent objective.” 97
The Tenth Circuit reached a different conclusion almost twenty years
ago,98 without the benefit of the Supreme Court’s decisions in James,99 Begay,100
or Chambers.101 The Tenth Circuit held that a conviction for conspiracy to
commit armed robbery under New Mexico law was not a crime that presented
a serious risk of potential injury within the meaning of 18 U.S.C.
§ 924(e)(2)(B)(ii).102 The court felt constrained by two prior decisions from that
circuit that had held that a prior conviction for attempted burglary did not come
within the scope of the residual clause.103
More recently, the Eleventh Circuit has held that a conviction for
conspiracy to commit “‘strong arm robbery’” was not a crime of violence within
the meaning of section 4B1.1 of the Sentencing Guidelines.104 The commission
of an overt act was not an element of the conviction under the applicable state
law.105 The Eleventh Circuit held that the “simple act of agreeing” was not

97
Id. at 372; see also United States v. Chimurenga, 760 F.2d 400, 403-04 (2d Cir. 1985)
(holding that conspiracy to commit armed robbery was a crime of violence within the meaning
of the residual clause of 18 U.S.C. § 3156(a)(4)).
98
United States v. King, 979 F.2d 801, 804 (10th Cir. 1992).
99
James v. United States, 550 U.S. 192 (2007).
100
Begay v. United States, 553 U.S. 137 (2008).
101
Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009).
102
King, 979 F.2d at 804.
103
Id. (citing United States v. Permenter, 969 F.2d 911 (10th Cir. 1992); United States
v. Strahl, 958 F.2d 980 (10th Cir. 1992)).
104
United States v. Whitson, 597 F.3d 1218, 1220, 1223 (11th Cir. 2010) (per curiam).
105
Id. at 1221.

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No. 09-41064

violent or aggressive.106 That court concluded that “the Begay analysis requires
us to separate [the conspiracy and the target offense] and to examine the
conspiracy alone.” 107
We respectfully disagree with the Tenth Circuit’s decision in King.108 With
respect to the Eleventh Circuit’s decision in Whitson, we do not read Begay as
requiring us to consider only “the simple act of agreement” standing alone,
divorced from the target or intended violent and aggressive offense.109

V
Gore also contends that the district court erred when it determined that
he was a career offender on the basis of an incorrect statute, Texas Penal Code
§ 7.02, Criminal Responsibility for Conduct of Another, rather than the Texas
Conspiracy statute, Texas Penal Code § 15.02. Because Gore raises this issue
for the first time on appeal, we review for plain error.110 Under this standard,
we may reverse if the defendant’s substantial rights were affected by an obvious
error.111 The district court’s citation of the Texas statute pertaining to the “law
of parties” rather than the conspiracy statute did not cause that court to reach
an incorrect judgment or affect the sentence imposed. The district court’s result
is the same as if it had cited the conspiracy statute. Gore’s substantial rights
were not affected.

106
Id. at 1222.
107
Id. at 1223 (citing Begay v. United States, 553 U.S. 137 (2008)).
108
See United States v. King, 979 F.2d 801 (10th Cir. 1992).
109
See 597 F.3d at 1222, 1223.
110
United States v. Gonzales-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008).
111
Id. (citations omitted).

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VI
Relying on J USTICE S CALIA’s dissenting opinion in James v. United
States,112 Gore contends that the residual clause is unconstitutionally vague
because the phrase “serious potential risk of physical injury to another” is so
indefinite that it fails to put defendants on notice of what constitutes a violent
felony. This argument was rejected by the Court’s opinion in James.113
Gore also appears to argue that he was denied the Sixth Amendment right
to a fair trial because the sentencing court was prohibited by the categorical
approach from inquiring into the underlying facts of his prior conviction. In
support of this argument, Gore cites J USTICE T HOMAS’ concurring opinion in
Shepard v. United States.114 However, in that opinion, J USTICE T HOMAS opined
that consultation of any documents under the categorical approach constitutes
judicial fact-finding prohibited by Apprendi v. New Jersey.115 This proposition
does not support Gore’s contention that the district court should have been
allowed to consult the underlying facts. Gore’s Sixth Amendment contention is
not supported by this or any other precedent, and therefore any error cannot be
plain, assuming, without deciding, that his argument was not waived.116

* * *
For the foregoing reasons, we AFFIRM the district court’s judgment.

112
550 U.S. 192, 229-30 (2007) (SCALIA , J., dissenting).
113
Id. at 210 n.6 (majority opinion).
114
544 U.S. 13, 26-28 (2005) (THOM AS , J., concurring in part and concurring in the
judgment).
115
530 U.S. 466 (2000).
116
Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004)
(“Issues not raised or inadequately briefed on appeal are waived.”).

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HIGGINBOTHAM, Circuit Judge, specially concurring:
I join the panel opinion and here explain my view that the issues
presented are best resolved by a straightforward application of the analytic
approach developed by the Supreme Court in Begay v. United States.1 Begay
clarified the scope of the ACCA’s Residual Clause by explaining that the four
example crimes listed in 18 U.S.C. § 924(e)(2)(B)(ii)—burglary, arson, extortion,
and crimes involving the use of explosives—“illustrate the kinds of crimes that
fall within the statute’s scope. Their presence indicates that the statute covers
only similar crimes, rather than every crime that ‘presents a serious potential
risk of physical injury to another.’”2 The Court went on to hold that the Residual
Clause only covers “crimes that are roughly similar, in kind as well as in degree
of risk posed, to the examples themselves.” 3
I read Begay as instructing us to use a two-step inquiry to determine
whether a particular offense falls within the ambit of the Residual Clause. First,
we ask whether the offense in question is a similar kind of offense as the four
example crimes. Next, we ask whether it poses a similar degree of risk. The
answer to both questions is yes as to conspiracy to commit aggravated robbery
as defined under Texas law.
As to the first step of that inquiry, the four example crimes demonstrate
that the kind of crimes the Residual Clause targets are “‘certain general
categories of property crimes’” that invariably “‘present[] a risk of injury to
persons.’”4 As the Court explained in James v. United States, “the most relevant

1
553 U.S. 137 (2008).
2
Id. at 142 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
3
Id. at 143 (emphasis added).
4
James v. United States, 550 U.S. 192, 199 (2007) (quoting Taylor v. United States, 495
U.S. 575, 597 (1990)).

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09-41064

common attribute of the enumerated offenses of burglary, arson, extortion, and
explosives use . . . is that all of these offenses, while not technically crimes
against the person, nevertheless create significant risks of bodily injury or
confrontation that might result in bodily injury.”5 The reason the Residual
Clause’s four example crimes create a serious potential risk of physical injury to
another is they “all typically involve purposeful, violent, and aggressive
conduct.” 6
In this case, I conclude that conspiracy to commit aggravated robbery is
similar in kind to the four example crimes. I arrive at that conclusion in two
steps. First, aggravated robbery is quite plainly the kind of purposeful, violent,
and aggressive property crime that entails a substantial risk of injury to its
victim. Robbery, by definition, is a violent form of theft.7 Indeed, the feature of
robbery that distinguishes it from theft is—as the panel opinion aptly points
out—actual or threatened assaultive conduct. We have previously concluded
that, as defined by Texas law, both robbery8 and aggravated robbery 9 are violent

5
Id.
6
Begay, 553 U.S. at 144–45 (citation and internal quotation marks omitted).
7
See United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006)
(“[R]obbery ‘may be thought of as aggravated larceny,’ containing at least the elements of
‘misappropriation of property under circumstances involving immediate danger to the person.’”
(quoting WAYNE R. LA FAVE , SUBSTANTIVE CRIM INAL LAW § 20.3 intro., (d)(2) (2d ed. 2003)
(brackets omitted))); MODEL PENAL CODE § 222.1 explanatory note (2001) (“Robbery is
appropriately defined as a separate and serious offense because of the special elements of
danger commonly associated with forcible theft from the person.”).
8
See United States v. Davis, 487 F.3d 282, 287 (5th Cir. 2007).
9
United States v. Guardiola, 236 F. App’x 93, 95 (5th Cir. 2007) (per curiam)
(unpublished) (citing United States v. Muñoz, 150 F.3d 401, 419 (5th Cir. 1998)).

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felonies under the Residual Clause, and the statutory history of the ACCA
supports that conclusion.10
In turn, conspiracy to commit aggravated robbery is the same kind of
crime as aggravated robbery. A criminal conspiracy derives its nature from the
crime whose commission is the conspiracy’s object.11 To ignore the target offense
when determining a conspiracy’s violent or nonviolent character would be to
ignore the very aspect of the conspiracy that makes it criminal. It follows that
a Texas conviction of conspiracy to commit aggravated robbery is similar in kind
to the four offenses enumerated in § 924(e)(2)(B)(ii).
The second step asks whether conspiracy to commit aggravated robbery
poses a degree of risk that is similar to the degree of risk posed by the four
example crimes. To determine whether conspiracy to commit aggravated
robbery creates a sufficiently serious potential risk of physical injury to another,
we compare the risk it poses to the risk “posed by its closest analog among the
enumerated offenses.”12 One of the enumerated offenses is extortion, which the
Supreme Court has equated with robbery.13 Thus, we need only determine

10
See James, 550 U.S. at 200–01 (noting that the original version of the ACCA provided
enhanced penalties based on two prior convictions for “any robbery or burglary offense” and
that the 1986 amendment to the ACCA, which replaced that language with the Residual
Clause, was “for the purpose of expanding the range of predicate offenses” (citations and
internal quotation marks omitted)).
11
See TEX . PENAL CODE § 15.02(d) (providing that a conspiracy offense is punishable
as a felony that “is one category lower than the most serious felony that is the object of the
conspiracy”); 15A C.J.S. Conspiracy § 98 (“Although criminalization of conspiracy punishes the
inchoate offense by prosecuting the agreement itself, separating and stigmatizing jointly
planned criminal activity prior to its completion, the crime of conspiracy is directed at the
intended result of that agreement.” (footnote omitted)).
12
James, 550 U.S. at 203.
13
Compare Begay, 553 U.S. at 145 (defining extortion as “‘purposely’ obtaining
property of another through threat of, e.g., inflicting ‘bodily injury’ (quoting MODEL PENAL
CODE § 223.4 (1985)), with TEX . PENAL CODE § 29.02(a)(2) (defining robbery as “intentionally
or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death”
while “in the course of committing theft . . . and with intent to obtain or maintain control of

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09-41064

whether conspiracy to commit aggravated robbery poses a similar degree of risk
as aggravated robbery itself.
In my view, the United States Sentencing Commission has answered this
question for us. The ACCA’s definition of “violent felony” is identical in all
respects material to this appeal to the definition of “crime of violence” found in
§ 4B1.2(a) of the Sentencing Guidelines. On numerous prior occasions we have
“applied our holdings under the residual clause of the ACCA to analyze the
definition of crimes of violence under § 4B1.2, and vice versa.” 14 The
Commission, “‘which collects detailed sentencing data on virtually every federal
criminal case, is better able than any individual court to make an informed
judgment about the relation between’ a particular offense and ‘the likelihood of
accompanying violence.’”15 And the Commission has defined the term “crime of
violence” in § 4B1.2(a) to include the offense of conspiring to commit a crime of
violence.16
When the Sentencing Guidelines use a term such as “conspiracy” to
describe an offense, we employ a “‘common sense approach’” based on the term’s
“‘generic, contemporary meaning’” to determine whether it encompasses a
particular state’s version of that offense.17 In my view, the generic,
contemporary definition of a criminal conspiracy includes a requirement that at

the property”).
14
United States v. Mohr, 554 F.3d 604, 609 n.4 (5th Cir.) (collecting cases), cert. denied,
130 S. Ct. 56 (2009).
15
James, 550 U.S. at 206 (quoting United States v. Doe, 960 F.2d 221, 225 (1st Cir.
1992) (Breyer, C.J.)).
16
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 cmt. n.1 (2010).
17
United States v. Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (quoting United
States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008)).

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least one of the conspirators take an overt act in furtherance of the agreement.18
Because Texas’s conspiracy statute requires an “overt act in pursuance of the
agreement,”19 a Texas conspiracy conviction falls within the realm of conspiracy
offenses described in the commentary to § 4B1.2 of the Guidelines. Thus, the
reasoned, empirical judgment of the Sentencing Commission is that the Texas
offense of conspiracy to commit aggravated robbery presents a sufficiently
“serious potential risk of physical injury to another”20 to be classified as a crime
of violence under § 4B1.2. The Commission’s judgment weighs heavily in favor
of concluding that conspiracy to commit aggravated robbery poses a similar
degree of risk as the four enumerated offenses in § 924(e)(2)(B)(ii).21
For these reasons, as well as those laid out in the panel opinion, I conclude
that the Texas offense of conspiracy to commit aggravated robbery is a violent
felony within the meaning of the Residual Clause of 18 U.S.C.§ 924(e)(2)(B)(ii).

18
“[A]bsent plain indication to the contrary, federal laws are not to be construed so that
their application is dependent on state law,” Taylor, 495 at 591, and the federal conspiracy
statute includes an overt-act requirement, see 18 U.S.C. § 371. Cf. Taylor, 495 U.S. at 592
(“We think that ‘burglary’ in § 924(e) must have some uniform definition independent of the
labels employed by the various States’ criminal codes.”).
19
TEX . PENAL CODE § 15.02(a)(2). That feature of the Texas statute distinguishes this
case from both United States v. Whitson, 597 F.3d 1218, 1223 (11th Cir. 2010) (per curiam)
(“[W]e conclude that non-overt act conspiracy is not a section 4B1.1 ‘crime of violence.’”), and
United States v. King, 979 F.2d 801, 802 (10th Cir. 1992) (“New Mexico law is clear that the
overt act which constitutes the object of the conspiracy is no part of the crime of
conspiracy . . . .” (citation, quotation marks, and brackets omitted)).
20
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2) (2010).
21
Relying on the Commission’s empirical research also avoids the variability and
indeterminacy that would attend an alternate approach, as it eliminates the need to wrestle
with the difficulty created by the fact that the Court has explicitly instructed us that the
Residual Clause covers only those “crimes that are roughly similar . . . in degree of risk posed”
to the four example crimes, Begay, 553 U.S. at 143, notwithstanding the fact that the four
example crimes “‘have little in common, most especially with respect to the level of risk of
physical injury that they pose,’” id. (quoting James, 550 U.S. at 229 (Scalia, J., dissenting)).

30