United States v. Jerome Collins

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-4525

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JEROME COLLINS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00239-RJC-DCK-1)

Argued: December 11, 2019 Decided: March 31, 2020

Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Thacker wrote the opinion, in which Judge Floyd
joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph
Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, Charlotte, North
Carolina, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. R. Andrew
Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
THACKER, Circuit Judge:

Jerome Collins (“Appellant”) pled guilty to possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g). Because the district court determined Appellant

had two prior convictions for crimes of violence, it calculated Appellant’s base offense

level as 24 pursuant to section 2K2.1(a)(2) of the United States Sentencing Guidelines

(“Guidelines”). But, on appeal, Appellant argues the district court erred in classifying one

of his prior convictions -- a New York conviction for attempted assault in the first degree

-- as a crime of violence because, according to Appellant, New York attempt is broader

than generic attempt. Because we conclude Appellant’s prior New York conviction for

attempted assault in the first degree is a crime of violence as defined by the Guidelines’

“force clause,” we affirm.

I.

In 2017, Appellant pled guilty to possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g). Prior to sentencing, the probation officer prepared a

Presentence Investigation Report (“PSR”) which identified relevant conduct attributable to

Appellant. The PSR identified Appellant had two prior convictions for crimes of violence

pursuant to Guidelines section 4B1.2 -- a North Carolina common law robbery conviction

and a New York conviction for attempted assault in the first degree, in violation of N.Y.

Penal Law section 110.00 and section 120.10(1). Based on these two prior crimes of

violence, the Guidelines specified a base offense level of 24. See U.S.S.G. § 2K2.1 (2018)

(prescribing a base offense level of 24 “if the defendant committed any part of the instant

offense subsequent to sustaining at least two felony convictions” for crimes of violence).

3
Appellant challenged the PSR calculation, arguing his prior New York conviction does not

qualify as a crime of violence. 1 Without this crime of violence, Appellant’s base offense

level would decrease to 20.

At sentencing, the district court overruled Appellant’s objection. The district court

held the New York conviction “ha[s] the elements sufficient to meet the force clause, and

also appears to be largely consistent with aggravated assault so that it meets the enumerated

clause provision.” J.A. 40–41. 2 After calculating a Guidelines range of 77 to 96 months

of imprisonment, the district court sentenced Appellant to 84 months. Appellant timely

appealed.

Because Appellant challenges his criminal sentence, we possess jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

Ordinarily, this Court considers “de novo whether a defendant’s prior offense

qualifies as a crime of violence under the career offender guidelines.” United States v.

Riley, 856 F.3d 326, 327–28 (4th Cir. 2017). However, when an appellant fails to preserve

the error by properly objecting below, we review only for plain error. See United States v.

Bennett, 698 F.3d 194, 200 (4th Cir. 2012). To preserve an issue for appeal, “an objection

[or argument] must be timely and state the grounds on which it is based.” In re Under

1
Although Appellant made different arguments in support of his objection to the
district court than he makes on appeal, we need not restate those arguments here because
they are immaterial to our decision.
2
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

4
Seal, 749 F.3d 276, 287 (4th Cir. 2014) (alteration in original) (internal quotation marks

omitted).

The parties disagree as to whether Appellant properly preserved this issue for

appeal. In the district court, Appellant argued New York attempted assault is not a crime

of violence because New York assault is not a categorical match for generic assault. In

this Court, however, Appellant abandoned that argument and argues only that New York

attempt is broader than generic attempt. Appellant argues his objection to the classification

of the offense as a crime of violence was sufficient to preserve the issue. The Government,

on the other hand, argues the objection was too generic to properly alert the district court

to the true “grounds on which it [was] based.” In re Under Seal, 749 F.3d at 287.

Because Appellant does not prevail even under the preserved error standard, we

need not decide whether Appellant’s objection was sufficient to preserve the error. We

assume the standard of review is de novo. See United States v. Zayyad, 741 F.3d 452, 459

(4th Cir. 2014) (assuming the appellant preserved the issue where he could not prevail even

under the presumed error standard of review); see also United States v. Palacios, 677 F.3d

234, 245 n.6 (4th Cir. 2012) (same).

III.

A.

The base offense level for a conviction pursuant to 18 U.S.C. § 922(g) is level 24

“if the defendant committed any part of the instant offense subsequent to sustaining at least

two felony convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. § 2K2.1(a)(2). To define a “crime of violence,” the relevant section of the

5
Guidelines cites directly to the career offender Guidelines. Id. at § 2K2.1 cmt. n.1. There,

a crime of violence is defined as any state or federal offense punishable by imprisonment

for a term exceeding one year, that

(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another [the
force clause], or

(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery,
arson, extortion or the use or unlawful possession of a
firearm . . . or explosive material [the enumerated
offense clause].

Id. § 4B1.2(a). A crime of violence “include[s] the offenses of aiding and abetting,

conspiring, and attempting to commit such offenses.” Id. at cmt. n.1.

To determine whether the offense is a crime of violence under either the force clause

or the enumerated clause, we employ the “categorical approach.” See Taylor v. United

States, 495 U.S. 575, 600 (1990); United States v. Hammond, 912 F.3d 658, 661 (4th Cir.

2019). The categorical approach “focus[es] solely on . . . the elements of the crime of

conviction . . . while ignoring the particular facts of the case.” Mathis v. United States, 136

S. Ct. 2243, 2248 (2016) (citation omitted). “The point of the categorical inquiry is not to

determine whether the defendant’s conduct could support a conviction for a crime of

violence, but to determine whether the defendant was in fact convicted of a crime that

qualifies as a crime of violence.” United States v. McCollum, 885 F.3d 300, 304 (4th Cir.

2018) (emphases in original) (internal quotation marks omitted).

Applying the categorical approach first requires us to determine “what crime, with

what elements, [Appellant] was convicted of.” Mathis, 136 S. Ct. at 2249. This task is

6
simplest when the prior offense comes from a statute setting forth a single set of elements,

otherwise called an “indivisible” statute. Id. at 2248. However, when a statute “list[s]

elements in the alternative, and thereby define[s] multiple crimes,” the statute is considered

“divisible.” Id. at 2249. When faced with a divisible statute, we apply the modified

categorical approach, which allows us to look to a limited class of documents to determine

“which statutory phrase was the basis for the conviction.” Johnson v. United States, 559

U.S. 133, 144 (2010). After determining which elements make up Appellant’s crime of

conviction, we determine whether the offense categorically matches the federally defined

“generic” offense. Mathis, 136 S. Ct. at 2249.

For purposes of the force clause, we consider whether the state crime at issue 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). Because our analysis is limited to the conduct the

state offense “necessarily involved, . . . we must presume that the conviction ‘rested upon

[nothing] more than the least of th[e] acts’ criminalized.” Moncrieffe v. Holder, 569 U.S.

184, 190–91 (2013) (quoting Johnson, 559 U.S. at 137) (alterations in original). In

evaluating whether a state offense meets this definition, “we look to state law and the

interpretation of [the] offense articulated by that state’s courts.” United States v. Bell, 901

F.3d 455, 469 (4th Cir. 2018) (internal quotation marks omitted) (alteration in original).

The definition of the term “physical force,” however, and the separate question of whether

7
the elements of a state offense satisfy that definition, present issues of federal law.

Johnson, 559 U.S. at 138.

B.

Appellant’s prior conviction was for attempted first degree assault. In New York, a

person is guilty of assault in the first degree when,

1. With intent to cause serious physical injury to another
person, he causes such injury to such person or to a third
person by means of a deadly weapon or a dangerous
instrument; or

2. With intent to disfigure another person seriously and
permanently, or to destroy, amputate or disable
permanently a member or organ of his body, he causes
such injury to such person or to a third person; or

3. Under circumstances evincing a depraved indifference to
human life, he recklessly engages in conduct which
creates a grave risk of death to another person, and thereby
causes serious physical injury to another person; or

4. In the course of and in furtherance of the commission or
attempted commission of a felony or of immediate flight
therefrom, he, or another participant if there be any,
causes serious physical injury to a person other than one
of the participants.

N.Y. Penal Law § 120.10(1)–(4). Appellant was convicted of attempting to commit assault

as it is defined in subsection one. See id. § 120.10(1) (requiring a defendant to act “[w]ith

intent to cause serious physical injury to another person” and actually “cause such injury

8
. . . by means of a deadly weapon or dangerous instrument”). 3 New York criminalizes

attempt “when, with intent to commit a crime, [the defendant] engages in conduct which

tends to effect the commission of such crime.” Id. § 110.00.

To determine whether the offense here is a crime of violence, we first evaluate the

substantive offense and then consider the effect of the inchoate nature of the offense.

1.

Applying the categorical approach, the state crime necessarily must have as an

element the “use, attempted use, or threatened use of physical force against the person of

another” to qualify as a crime of violence under the force clause. U.S.S.G. § 4B1.2(a)(1).

“[T]he specific intent to inflict bodily injury” is sufficient to meet the mens rea

requirements of the force clause. United States v. Reid, 861 F.3d 523, 527 (4th Cir.

2017). As for the actus reus, the Supreme Court has interpreted the term “physical force”

as “violent force -- that is, force capable of causing physical pain or injury to another

person.” Johnson, 559 U.S. at 140 (emphasis in original). An offense which can be

committed using only “de minimis physical contact” is not categorically a crime of

violence. United States v. Hammond, 912 F.3d 658, 661 (4th Cir. 2019) (internal quotation

marks omitted).

3
Though there was some argument in the district court as to which subsection was
the basis for Appellant’s conviction, the district court found he had been convicted of
subsection one of New York’s first degree assault statute. Appellant has not challenged
this aspect of the district court’s decision on appeal. Further, because the statute is
divisible, our own review of the record also reveals Appellant was convicted of subsection
one. Namely, the indictment tracks the language of subsection one, see J.A. 67, and the
certificate of conviction lists the offense of conviction as § 120.10-1, see id. at 64.

9
 Appellant does not contest on appeal that the completed offense of New York first

degree assault pursuant to N.Y. Penal Law section 120.10(1) is a crime of violence. First,

the offense categorically matches the generic mens rea requirement of the force clause

because it requires the specific “intent to cause serious physical injury to another person.”

N.Y. Penal Law § 120.10(1). Further, the offense categorically matches the actus reus

requirement of the force clause because causing serious physical injury certainly requires

physical “force capable of causing physical pain or injury to another person.” Johnson,

559 U.S. at 140. As a result, New York first degree assault pursuant to section 120.10-1 is

a crime of violence under the force clause.

The question we are left to answer, and the source of much debate here, is whether

attempted first degree assault is also a crime of violence.

2.

When a defendant is convicted pursuant to a state’s general attempt statute which

encompasses all or nearly all substantive crimes, “two sets of elements are at issue: the

elements of attempt and the elements of the underlying . . . offense.” United States v.

Dozier, 848 F.3d 180, 185 (4th Cir. 2017) (emphasis in original); see also United States v.

Dinkins, 928 F.3d 349, 358 (4th Cir. 2019). Though we have held that “both the inchoate

crime and the underlying offense are subject to [the] categorical approach,” McCollum,

885 F.3d at 305, we have also recognized that general attempt statutes do not set forth

10
standalone crimes, Dozier, 848 F.3d at 185, and “must be considered in relation to the

object crime,” Dinkins, 928 F.3d at 359.

Because attempt is subject to the categorical approach, its elements must

categorically match generic attempt. “Our precedent defines generic attempt as requiring

(1) culpable intent to commit the crime charged and (2) a substantial step toward the

completion of the crime, which is consistent with the definition of attempt found in the

Model Penal Code.” Dozier, 848 F.3d at 186 (internal quotation marks omitted). Under

New York law, “[a] person is guilty of an attempt to commit a crime when, with intent to

commit a crime, he engages in conduct which tends to effect the commission of such

crime.” N.Y. Penal Law § 110.00.

a.

The first point of contention here is whether New York attempt categorically

matches the mens rea requirement of generic attempt -- specific intent. Appellant argues

it does not. On its face, New York’s attempt statute does appear to require specific intent.

See N.Y. Penal Law § 110.00 (“A person is guilty of an attempt to commit a crime when,

with intent . . .”). And New York courts have been clear “an attempt to commit a crime

consists of [] the intent to commit the crime.” People v. Foster, 225 N.E.2d 200, 201 (N.Y.

1967). However, Appellant argues New York courts permit defendants to plead guilty to

attempt crimes where the substantive offense does not require specific intent, thereby

changing the New York definition of attempt.

For example, in Foster, the Court of Appeals of New York upheld a defendant’s

guilty plea to the nonexistent crime of attempted manslaughter in the first degree. 225

11
N.E.2d at 201. Though the Court of Appeals recognized that manslaughter does not

require intent and that one could not intend to commit an accidental crime, it held the

defendant to the plea because he knowingly accepted the deal in satisfaction of an

indictment charging a heavier crime. See id. at 201–02. Similarly, in People v. Martinez,

a jury convicted the defendant of attempted manslaughter in the first degree. 611 N.E.2d

277, 277–78 (N.Y. 1993). There, however, the Court of Appeals overturned the conviction

and held that a jury could not find the defendant guilty of each element because one cannot

intend manslaughter. Id. at 278. The Court of Appeals recognized that it would “allow a

defendant to plead to a nonexistent crime in satisfaction of an indictment charging a crime

with a heavier penalty,” but held a defendant could not be indicted or tried on such a charge.

Id.

Appellant argues this practice of allowing pleas to nonexistent crimes effectively

changes the definition of attempt in New York such that it no longer necessarily requires

specific intent. The Government avers that New York’s acceptance of these pleas is

irrelevant to our consideration of attempt, arguing that we need not consider attempt in a

vacuum. Instead, the Government argues we should consider attempt “in relation to the

object crime,” Dinkins, 928 F.3d at 359, and determine what mens rea is required for the

entire offense of conviction. The difference between these positions is immaterial because

in either instance, we hold New York attempt does require specific intent.

Taking Appellant’s view first, we disagree that New York’s acceptance of

nonexistent pleas changes the definition of attempt in New York. Even in cases where

New York accepts a legally impossible plea, the courts are clear “[a]n attempt to commit a

12
crime consists of [] the intent to commit the crime.” Foster, 225 N.E.2d at 201. Further,

in Mathis, the Supreme Court defined the “elements” of an offense as either “what the jury

must find beyond a reasonable doubt to convict the defendant” at trial, or “at a plea hearing,

. . . what the defendant necessarily admits when he pleads guilty.” 136 S. Ct. at 2248.

Though a jury could not convict on a charge of attempted manslaughter, a guilty plea to

this charge requires the defendant to “necessarily admit” all of the elements charged,

including attempt’s element of specific intent.

The dissenting opinion suggests the majority is incorrect in our interpretation of

Foster. See Dissenting Op. at 22–27. In support, the dissent focuses on the New York

Court of Appeals discussion of the difference between guilty pleas and trials. See Foster,

225 N.E.2d at 201. But the dissenting analysis of Foster ends just one sentence short of

the operative language. After noting that a guilty plea “presents an entirely different

situation” from a jury trial, the Foster court continues:

The alleged infirmity of the plea to attempted manslaughter in the second

degree in this case arises from the definition of what constitutes an ‘attempt’

under section 2 of the Penal Law. The question on this appeal is whether this

definition which includes an ‘intent to commit a crime’ renders the plea taken

by defendant inoperative, illogical or repugnant and, therefore, invalid. We

hold that it does not when a defendant knowingly accepts a plea to attempted

13
 manslaughter as was done in this case in satisfaction of an indictment

charging a crime carrying a heavier penalty.

Id.

Here, the New York Court of Appeals recognizes that the defendant pled guilty to a

definition of attempt “which includes an ‘intent to commit a crime.’” Id. Though that

might be otherwise “inoperative, illogical, or repugnant and, therefore, invalid” in the

context of attempt, the Court held that it was not so here where the defendant knowingly

took the plea. Id. Thus, contrary to the dissenting opinion, New York demonstrates that it

does, in fact, require a defendant to plead guilty to specific intent.

Turning to the Government’s view, if we consider attempt in relation to the

substantive offense, the result is even more clear. N.Y. Penal Law section 120.10(1)

requires a defendant act “with intent to cause serious physical injury to another person.”

Because attempt requires specific intent to commit the object offense, one could not

attempt New York first degree assault as defined in this subsection without having specific

intent. Thus, there could not be a legally impossible plea to this crime because a defendant

would necessarily admit to having the requisite intent by pleading guilty. Taking this view

supports the purposes of the categorical approach as well because it reveals, by only

considering the elements, that “the defendant was in fact convicted of a crime that qualifies

as a crime of violence.” McCollum, 885 F.3d at 304 (emphasis in original).

Accordingly, we hold the mens rea element of New York attempt categorically

matches the mens rea required by generic attempt.

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 b.

Finally, we must determine whether New York attempt’s actus reus categorically

matches the actus reus required by generic attempt.

Generic attempt requires a substantial step toward the completion of the crime. See

Dozier, 848 F.3d at 186. A substantial step is “a direct act in a course of conduct planned

to culminate in commission of a crime that is strongly corroborative of the defendant's

criminal purpose.” Id. (internal quotation marks omitted). Mere preparation is not

generally enough, see id., but the defendant “need not be [at] the last possible act before”

the completion of crime, United States v. Pratt, 351 F.3d 131, 136 (4th Cir. 2003). To

determine whether a defendant has taken a substantial step, we must “assess how probable

it would have been that the crime would have been completed” absent intervening

circumstances. United States v. Engle, 676 F.3d 405, 423 (4th Cir. 2012) (citing Pratt, 351

F.3d at 136).

Pursuant to New York’s general attempt statute, a defendant must “engage[] in

conduct which tends to effect the commission of [the] crime.” N.Y. Penal Law § 110.00.

Appellant argues this statute is broader than generic attempt because it punishes conduct

that falls short of a “substantial step” by only requiring conduct that is “potentially and

immediately dangerous.” Appellant’s Br. 12–13 (citing People v. Mahboubian, 543

N.E.2d 34, 48 (N.Y. 1989)). However, New York has clarified that its standard requires

“conduct that came dangerously near commission of the completed crime.” People v.

15
Denson, 42 N.E.3d 676, 685 (N.Y. 2015)); see also People v. Rizzo, 158 N.E. 888, 889

(N.Y. 1927).

New York’s highest court has described this standard as “more stringent than the

Model Penal Code ‘substantial step’ test,” which has been adopted by this court. People

v. Acosta, 609 N.E.2d 518, 521 (N.Y. 1993). The First, Second, and Ninth Circuits have

agreed. See United States v. Davis, 873 F.3d 343, 345 (1st Cir. 2017); United States v.

Thrower, 914 F.3d 770, 776–77 (2d Cir. 2019), cert. denied, No. 19-5024, 2019 WL

4923513 (Oct. 7, 2019); United States v. Rivera-Ramos, 578 F.3d 1111, 1115 (9th Cir.

2009) (explaining, “[t]o this day, the definition of ‘attempt’ in New York requires a

stronger showing” than the Model Penal Code). We see no reason to disagree with our

sister circuits on this point and therefore hold that New York attempt does require a

substantial step.

C.

In sum, we hold Appellant’s prior New York conviction for attempted assault in

violation of N.Y. Penal Law section 120.10(1) is a crime of violence pursuant to the force

clause because it “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). The elements of New York

attempt categorically match generic attempt, and subsection one of the assault statute

requires specific intent and violent force. And because the offense is a crime of violence

pursuant to the force clause, we need not consider whether it also satisfies the enumerated

clause.

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 IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

17
GREGORY, Chief Judge, dissenting:

This should be a straightforward case. As the majority recognizes, when evaluating

inchoate crimes under the force clause, this Court’s precedent instructs us that “both the

inchoate crime and the underlying offense are subject to [the] categorical approach.” Maj.

Op. at 10 (quoting United States v. McCollum, 885 F.3d 300, 305 (4th Cir. 2018)); see also

McCollum, 885 F.3d at 303 (“precedent directs that we consider the inchoate crime . . . and

its object independently”). Here, Appellant does not dispute that the elements of the

underlying crime (aggravated assault) is a categorical match with his New York offense.

Rather, he only contends that the elements of the inchoate aspect (attempt) is not a

categorical match. Our precedent requires a defendant to act with the specific intent to

commit the underlying crime. United States v. Dozier, 848 F.3d 180, 185 (4th Cir. 2017).

New York, however, permits defendants to plead guilty to offenses when they do not—

indeed, cannot—possess the specific intent to commit the underlying crime. See, e.g,

People v. Guishard, 789 N.Y.S.2d 332, 332 (2005) (“Although the crime of attempted

assault in the first degree is a legal impossibility, a defendant may plead guilty to a

nonexistent crime.”); see also Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010) (noting

“New York courts’ willingness to accept guilty pleas to hypothetical crimes, including that

of attempted felony assault”). Because New York attempt does not categorically require

specific intent, Appellant’s prior attempt offense is overbroad. As a result, we should

18
reverse the district court’s holding that Appellant’s New York offense is a categorical

match with the generic characterization of attempted aggravated assault. 1

I respectfully dissent from the majority’s holding to the contrary. 2

I.

The principal difference between the majority and me is how we interpret New

York’s “attempt” statute in light of its practice of accepting guilty pleas for attempt crimes

lacking specific intent. Oddly enough, the majority recognizes New York’s peculiar

approach of accepting guilty pleas to nonexistent crimes, 3 recognizes that this approach

begets a practice of accepting pleas for attempt crimes where specific intent could not be

present, 4 and presumably recognizes that the underlying conviction at issue here was in

1
As the majority notes, the parties also dispute whether Appellant properly
preserved this issue for appeal. Maj. Op. at 5. Although Appellant now changes his
argument challenging his criminal history score, the Supreme Court has explained that
“[o]nce a federal claim is properly presented, a party can make any argument in support of
that claim; parties are not limited to the precise arguments they made below.” Yee v. City
of Escondido, 503 U.S. 519, 534 (1992). This Court has followed this reasoning in cases
involving challenges to a defendant’s criminal history score. See United States v.
Robinson, 744 F.3d 293, 300 n.6 (4th Cir. 2014) (“Although [Petitioner] did not make this
precise argument before the district court, [Petitioner] did challenge his criminal history
score, and thus preserved his claim.”). Because Appellant presented a variation of this
argument challenging his criminal history score below, he properly preserved his claim.
Therefore, de novo review is appropriate here.
2
Because I agree with Collins that New York attempt does not require specific
intent, I would not reach the question of whether New York law requires a substantial step
towards the completion of the crime.
3
See Maj. Op. at 11–12 (discussing a case where “New York upheld a defendant’s
guilty plea to the nonexistent crime of attempted manslaughter in the first degree”).
4
See Maj. Op. at 12 (“one could not intend to commit an accidental crime”).

19
fact resolved by plea 5. Yet, rather than concluding that—at least in the context of guilty

pleas—New York does not require specific intent, the majority instead “hold[s] New York

attempt does require specific intent.” Maj Op. at 12 (emphasis added). Why?

The majority’s brief explanation does not tell us much, and what it does say simply

fails to stand up against reason. The majority begins its analysis by rightly noting that

“[o]n its face, New York’s attempt statute does appear to require specific intent.” Maj. Op.

at 11. But, of course, “[o]ur inquiry does not end with th[e] statutory language.” Dozier,

848 F.3d at 184. “To the extent the statutory definition of a prior offense has been

interpreted by the state’s highest court, this interpretation informs and constrains our

analysis of the state law.” Id.

Looking at the relevant caselaw from New York courts, it is undeniably clear New

York extends attempt liability to defendants who lack the specific intent to commit the

underlying crime. As the Fifth Circuit points out, “[a]lthough New York law recognizes

attempt liability only for crimes that involve a mens rea of specific intent—as opposed to

crimes of recklessness and crimes with no mens rea element such as felony assault—New

York courts permit convictions by plea to hypothetical or legally impossible offenses such

as attempted recklessness.” Dale, 610 F.3d at 302. For example, New York does not

permit a defendant to be tried and convicted of an attempted reckless assault. See id. (citing

People v. Williams, 338 N.Y.S.2d 980 (1972) (overturning a jury conviction for attempted

reckless assault because the relevant subsection contained no element of intent)). Yet, New

5
See J.A. 64 (Appellant’s New York Certificate of Conviction).

20
York courts permit a defendant to plead guilty for crimes of attempted recklessness. Dale,

610 at 302 (citing Torres v. McGrath, 407 F. Supp. 2d 551, 561–62 (S.D.N.Y. 2006)

(denying petitioner’s habeas petition where he pleaded guilty to “attempted reckless

endangerment in the first degree in violation of [New York] Penal Law §§ 110.00 and

120.25”)). Indeed, a survey of cases demonstrates New York courts’ willingness to accept

guilty pleas to hypothetical attempt crimes where it would be impossible for a defendant to

possess the specific intent to commit the underlying crime. See id. (citing People v.

Guishard, 789 N.Y.S.2d 332 (2005) (affirming plea conviction to attempted assault in the

first degree even though the crime was a “legal impossibility”); People v. Barker, 635

N.Y.S.2d 383 (1995) (sustaining plea conviction to the “non-existent crime” of attempted

first-degree manslaughter, but noting that “a jury verdict convicting a person of that crime

would be invalid”); In re Maldonado, 516 N.Y.S.2d 673, 674 (1987) (“Like attempted

felony murder, there is no such crime as attempted felony assault . . . [but a] different result

may be reached where the conviction of an attempt to commit a crime, itself not involving

intent, is obtained by way of a plea of guilty.”)); see also People v. Johnson, 675 N.E.2d

1217 (N.Y. 1996) (noting New York courts approve “plea[s] to the technically nonexistent

crime of an attempt to commit a specific crime which, by definition, is committed without

intent”).

Despite its logical inconsistency, this convention is endorsed by the New York

Court of Appeals because “the practice of accepting pleas to lesser crimes is generally

intended as a compromise in situations where conviction is uncertain of the crime charged.”

People v. Foster, 225 N.E.2d 200, 202 (1967) (internal citation omitted). Since this bargain

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is normally “struck for the defendant’s benefit,” New York has concluded, “[t]he judgment

entered on the plea in such situation may be based upon no objective state of facts.” Id.

Consequently, New York courts permit defendants to plead guilty to attempt crimes when

the defendants do not—and, in some cases, cannot—possess the specific attempt to commit

the underlying crime. Therefore, at least when it comes to plea bargains, New York attempt

statute is overbroad. And the district court’s opinion should be reversed.

II.

The majority justifies a contrary conclusion only by turning its head to this practice

of accepting pleas for attempt crimes when specific intent is absent and misinterpreting the

language it borrows from caselaw.

First, the majority errs by attempting to rely on what the New York Court of Appeals

says—not what it does. In rejecting Appellant’s argument that New York’s acceptance of

legally impossible pleas extends attempt liability to crimes where specific intent is absent,

the majority writes: “Even in cases where New York accepts a legally impossible plea, the

courts are clear ‘[a]n attempt to commit a crime consists of [] the intent to commit the

crime.’” Maj. Op. at 12–13 (quoting Foster, 225 N.E.2d at 201). This misses the point. If

a court accepts a guilty plea to a legally impossible attempt crime lacking specific intent,

then the court is demonstrating that it extends attempt liability to defendants who lack

specific intent to commit the crime. It wouldn’t matter what the court says it’s doing in the

process. By permitting plea bargains in attempt cases where a defendant does not have the

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specific intent to commit the underlying crime, New York is interpreting its attempt statute

to not require specific intent in the context of plea bargaining.

This alone would be enough to reject the majority’s position. However, the

majority’s error is compounded by its misreading of what the New York Court of Appeals

actually says in Foster. The majority interprets the quoted language above as an indication

that New York insists on construing its attempt statute to require specific intent even when

a defendant pleads guilty to a legally impossible attempt offense. But Foster says exactly

the opposite. Rather than holding that specific attempt is required when courts accept a

legally impossible plea, the quoted language comes at a moment when the Foster Court is

juxtaposing trials (which require specific attempt) with plea bargains (which do not) and

explaining its broader interpretation of attempt when dealing with the latter. This is

abundantly clear from the context in which the quote arises:

The defendant relies upon People v. Brown (21 A.D.2d 738, 249
N.Y.S.2d 922) in support of his position. In Brown the defendant was
convicted, pursuant to a jury verdict, of the crime of attempted manslaughter,
having been indicted for attempted murder in the first degree. The Appellate
Division modified, holding: ‘An attempt to commit a crime consists of (1)
the intent to commit the crime; (2) the performance of an act toward the
commission and (3) failure to consummate. There must be an intent to
commit a specific crime in order to constitute an attempt (People v. Moran,
123 N.Y. 254, 257, 25 N.E. 412, 10 L.R.A. 109, * * *). An attempt to commit
manslaughter is apparently a contradiction because the specific crime of
manslaughter involves no intent and, accordingly, an intention to commit a
crime whose distinguishing element is lack of intent is logically repugnant.’
(21 A.D.2d 738, 739, 249 N.Y.S.2d 922, 923.) There is no doubt that the
above case would be dispositive of this appeal if we were faced with an
appeal from a jury verdict.

Foster, 225 N.E.2d at 201 (emphasis added). But Brown was not dispositive because

Foster was about a plea, not a trial. Id. (“In our case, however, the charge in the indictment

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is manslaughter i[n] the first degree and a plea was taken to attempted manslaughter in the

second degree as a lesser included crime.”). Thus, the court concluded that “[t]his presents

an entirely different situation.” Id. Rather than providing proof for the majority’s position,

the quoted language from the New York Court of Appeals does just the opposite: it shows

that, unlike trials, New York courts do not insist on specific intent being present in the

context of plea bargains. Therefore, contrary to what the majority asserts, New York

attempt does not require specific intent.

The flaws in the majority opinion do not end there. The majority’s attempt to put

this case in the context of Mathis v. United States, 136 S. Ct. 2243 (2016), also misses the

mark. While attempting to explain the elements of New York attempt, the majority writes,

“the Supreme Court defined the ‘elements’ of an offense as either ‘what the jury must find

beyond a reasonable doubt to convict the defendant’ at trial, or ‘at a plea hearing, . . . what

the defendant necessarily admits when he pleads guilty.’” Maj. Op. at 13 (quoting Mathis,

136 S. Ct. at 2248). 6 The majority then jumps to its conclusion: “Though a jury could not

convict on a charge of attempted manslaughter, a guilty plea to this charge requires the

defendant to ‘necessarily admit’ all of the elements charged, including attempt’s element

of specific intent.” Maj. Op. at 13. In other words, rather than looking at New York’s plea

bargain practice as an effort to extend attempt liability to defendants who lack specific

6
Of course, typically what a jury would have to prove in trial and what a defendant
necessarily admits when he pleads guilty is the same thing. And it is likely that the
Supreme Court did not intend for these to set out separate standards.
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intent, the majority instead says that a defendant who pleas to an impossible offense

“necessarily admits” to all of the elements charged.

This position is unsound. “‘Elements’ are the ‘constituent parts’ of a crime’s legal

definition—the things the ‘prosecution must prove to sustain a conviction’” Mathis, 136

S. Ct. at 2248 (quoting Black’s Law Dictionary 709 (10th ed. 2014)). As an impossible

offense, the majority is correct to note that a jury could not convict on the hypothetical

charge of attempted manslaughter. But the majority’s erroneous shift to say that a

defendant “necessarily admits” to all the elements when he pleads guilty to an impossible

offense is befuddling. An “admission” is “an acknowledgment that facts are true.” Black’s

Law Dictionary (11th ed. 2019). However, legally impossible offenses by their very nature

cannot be true. See id. (defining impossibility as “[t]he fact or condition of not being able

to occur, exist, or be done”); see also Knapik v. Ashcroft, 384 F.3d 84, 92 (3d Cir. 2004)

(“Attempted reckless endangerment is not a crime involving moral turpitude because,

categorically speaking, the concept makes no sense. Attempt (necessarily requiring intent

to commit a crime) is inconsistent with recklessness (which, by definition, implies acting

without intent).”). It follows, then, that a defendant cannot necessarily admit to an

impossible offense—acknowledging that the facts are true in a legally impossible offense

simply makes no sense. The majority’s conclusion that a defendant necessarily admits to

possessing specific intent when pleading to an impossible offense is thus a clear distortion

of what the Mathis Court had in mind when defining elements of a crime. Logic dictates

that a defendant does not necessarily admit to possessing specific intent when pleading

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guilty to impossible offenses such as attempted manslaughter and attempted recklessness.

The majority errs in concluding otherwise.

III.

The majority claims additional language in Foster supports its view that “[e]ven in

cases where New York accepts a legally impossible plea, the courts are clear ‘[a]n attempt

to commit a crime consists of [] the intent to commit the crime.’” Maj Op. at 12–14. In

making its case, the majority argues that my analysis of Foster “ends just one sentence

short of the operative language.” Maj. Op. at 13. Purporting to provide a more complete

picture, the majority contends that the following language from Foster proves that New

York “does, in fact, require a defendant to plead guilty to specific intent” during a plea to

an impossible offense:

The alleged infirmity of the plea to attempted manslaughter in the second
degree in this case arises from the definition of what constitutes an ‘attempt’
under section 2 of the Penal Law. The question on this appeal is whether this
definition which includes an ‘intent to commit a crime’ renders the plea taken
by defendant inoperative, illogical or repugnant and, therefore, invalid. We
hold that it does not when a defendant knowingly accepts a plea to attempted
manslaughter as was done in this case in satisfaction of an indictment
charging a crime carrying a heavier penalty.

Maj. Op. at 13–14 (quoting Foster, 225 N.E.2d at 201).

This language—and, indeed, the Foster opinion as a whole—is a far cry from a

“clear” statement that a plea to a logically impossible attempt offense requires specific

intent to commit the crime. As explained above, the only time the Foster Court comes

close to making any such statement is when it quotes another case from which it

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distinguishes itself. That, by itself, should reduce confidence in the majority’s

interpretation. In addition, however, the language quoted by the majority concerns itself

with only the question of whether a guilty plea to an impossible offense is valid, not

whether specific intent must be present when pleading to an impossible offense. If any

rule could be derived from this language it is not that a defendant who pleads guilty to a

logically impossible offense possesses specific intent, but rather that a logically impossible

plea will be sustained when a defendant knowingly accepts the plea to avoid a higher

penalty. The majority’s conclusion that Foster supports the position that specific intent is

required when a defendant pleads guilty to a legally impossible attempt offense is

unfounded. And, perhaps most importantly, it directly contradicts subsequent New York

caselaw that interprets Foster as permitting pleas to impossible attempt offenses when

specific intent is lacking. See, e.g., Johnson, 675 N.E.2d at 1219 (“Following People v.

Foster, [] we have approved of a plea to the technically nonexistent crime of an attempt to

commit a specific crime which, by definition, is committed without intent.”) (emphasis

added), In re Maldonado, 516 N.Y.S.2d at 674 (citing Foster for the proposition that “[l]ike

attempted felony murder, there is no such crime as attempted felony assault . . . [but a]

different result may be reached where the conviction of an attempt to commit a crime, itself

not involving intent, is obtained by way of a plea of guilty”) (emphasis added).

IV.

The Government’s attempt to rescue the district court’s opinion is also unavailing.

The Government asks us to consider attempt in conjunction with its substantive offense

and conclude that Appellant was convicted of committing a crime of violence in New York.

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But this overlooks that “precedent directs that we consider the inchoate crime . . . and its

object independently.” McCollum, 885 F.3d at 303 (emphasis added). This means the

underlying crime and the inchoate aspect have to match with the relevant generic offense.

When the inchoate aspect is overbroad, one cannot borrow elements from the underlying

crime to try to fill in the picture. If this was permissible, then McCollum’s conclusion that

“conspiracy to commit murder in aid of racketeering is not a ‘crime of violence’ since it

does not require an overt act,” id., would be incoherent. Murder in aid of racketeering

clearly requires an overt act. See 18 U.S.C.A. § 1959 (explaining the necessary activities

a defendant must engage in to commit violent crimes in aid of racketeering). And if a court

was permitted to use that element to supplement conspiracy’s lack of an overt act

requirement, then McCollum would likely have come out the other way. Contrary to what

the Government requests, our precedent requires us to analyze the inchoate offense and the

underlying offense independently.

This does not mean that we consider these elements “in a vacuum.” When the

inchoate offense requires the completion of the underlying offense, the nature of the

conviction demands we consider the elements of the underlying offense and the inchoate

aspect in tandem. Thus, in United States v. Dinkins, we wrote that “[b]ecause completion

of the underlying substantive felony must be proven to sustain a conviction for being an

accessory before the fact, we necessarily must evaluate both sets of elements.” 928 F.3d

349, 359 (4th Cir. 2019). But we wrote this while understanding that because accessory

before the fact crimes depend on the underlying offense, they are in a different posture than

other inchoate offenses: “This fact distinguishes Dinkins’ conviction as an accessory

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before the fact from other inchoate offenses, such as conspiracy, which do not require that

the object crime be completed.” Id. at 359 n.7 (internal citation omitted). Like conspiracy,

attempt does not require that the underlying offense be completed. See United States v.

Neal, 78 F.3d 901, 907 (4th Cir. 1996) (“If completion of a crime was a necessary predicate

to criminal prosecution, an attempt would never be criminal.”). Thus, it does not lend itself

to the Dinkins analysis. New York’s attempt statute and its aggravated assault statute must

be considered independently.

V.

In sum, our precedent provides a straightforward path for district courts to decide

when inchoate state offenses are a categorical match with their generic counterparts.

Dozier states “[w]here, as here, the defendant is convicted under a state’s general attempt

statute, one embracing all (or nearly all) possible substantive crimes, two sets of elements

are at issue: the elements of attempt and the elements of the underlying, attempted

offense.” 848 F.3d at 185. McCollum explains, when examining whether an offense is

overbroad, “we consider the inchoate crime . . . and its object independently.” 885 F.3d

303. And Dinkins clarifies that only when an inchoate offense is predicated on the

completion of the underlying offense do we interpret “the elements of the substantive crime

[as] incorporated into the [inchoate offense].” 928 F.3d at 358. Those cases resolve this

one. Unlike generic attempt, New York law extends attempt liability to cases where

defendants do not possess the specific attempt to commit a crime. Therefore, New York’s

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attempt statute is overbroad. The district court erred when concluding otherwise.

Accordingly, I cannot join the majority’s opinion.

I respectfully dissent.

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