[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10521 ELEVENTH CIRCUIT
FEBRUARY 24, 2010
________________________
JOHN LEY
CLERK
D. C. Docket No. 08-60242-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATENA LATRESESE WHITSON,
a.k.a. Katena Latreese Whitson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 24, 2010)
Before EDMONDSON and PRYOR, Circuit Judges, and CAMP,* District Judge.
PER CURIAM:
*
Honorable Jack T. Camp, United States District Judge for the Northern District of
Georgia, sitting by designation.
Appellant Katena Whitson (“Whitson”) appeals the district court’s
application of the Sentencing Guidelines section 4B1.1 “Career Offender”
enhancement to her sentence for importation of cocaine. We conclude that her
prior conviction for non-overt act criminal conspiracy is no “crime of violence” in
the light of Begay v. United States, 128 S. Ct. 1581 (2008). Therefore, she does
not qualify as a “career offender.” We vacate and remand for resentencing.
I. B ACKGROUND
Whitson plead guilty to importation of more than 500 grams of cocaine in
2008. In her factual proffer, Whitson admitted that she and a co-defendant hid
cocaine in sandals they attempted to smuggle into the United States from Jamaica.
For the Pre-Sentence Investigation Report (PSI), the probation officer determined
that Whitson qualified as a “career offender” under section 4B1.1 of the
Sentencing Guidelines. See U.S.S.G. § 4B1.1–2 (2008) (mandating a sentence
enhancement for criminals with two prior convictions for “crimes of violence” or
“controlled substances” crimes).
Whitson objected to the PSI, arguing that she was no career offender. She
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contended that her 1995 guilty plea to criminal conspiracy in South Carolina was
not a conviction for a “crime of violence.” Whitson specifically argued that
classifying non-overt act conspiracy as a crime of violence is inconsistent with the
Supreme Court’s teaching in Begay v. United States. See Begay, 128 S. Ct. at
1584–88 (describing the method by which courts should determine if an offense is
a “violent felony” under the Armed Career Criminal Act (“ACCA”)). The
prosecution argued that conspiracy to commit a violent crime -- in Whitson’s case,
“strong arm robbery”1 -- is violent, and that the PSI properly reflected Whitson’s
status as a career offender. The district judge agreed with the government and
overruled Whitson’s objection. Whitson’s sentence incorporated the career
offender enhancement.
II. D ISCUSSION
We review de novo a district court’s decision to classify a defendant as a
“career offender” under section 4B1.1. United States v. Gibson, 434 F.3d 1234,
1243 (11th Cir. 2006).
1
Whitson’s 1995 plea was for “criminal conspiracy.” South Carolina does not include the
target offense in its statutory definition of conspiracy, but agreement and purpose to commit the
specific target act must be proved beyond a reasonable doubt. See S.C. Code Ann. § 16-17-410
(defining conspiracy).
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The Supreme Court has discussed the appropriate construction of the phrase
“crime of violence.” See United States v. Harrison, 558 F.3d 1280, 1285–89 (11th
Cir. 2009) (chronicling the Supreme Court’s “violent felony” analysis since 2007);
United States v. Archer, 531 F.3d 1347, 1349–51 (11th Cir. 2008) (describing the
Supreme Court’s interpretation of “crimes of violence”). In Harrison, we
explained the method for determining whether a defendant’s prior conviction
qualifies as “violent” under the Armed Career Criminal Act. This case, like
Archer, arises under the similar -- but not identical -- career offender enhancement
of section 4B1.1–2.2 We accept Archer; our Court has extended Begay’s way of
construing the ACCA “violent felony” provision to U.S.S.G. section 4B1.1–2
“crimes of violence.” With that in mind, we apply the procedures set forth by the
Supreme Court.
A. The “Categorical Approach”
2
The Armed Career Criminal Act provides for a statutory minimum sentence of fifteen
years for repeat violent or drug offenders. 18 U.S.C. § 924(e)(2)(B)(ii). The ACCA defines
“violent felonies” as offenses which may be punished by more than a year’s imprisonment and
which“[are] burglary, arson, or extortion, involve[] use of explosives” (the so called
“enumerated crimes”) and that “otherwise involve[] conduct that presents a serious potential risk
of physical injury to another” (the so called “residual clause”). Id. The career offender
enhancement of section 4B1.1–2 has nearly the same enumerated crimes—it lists “burglary of a
dwelling” instead of “burglary”—and also includes an identically worded “residual clause.”
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When deciding if a crime is “violent” for purposes of the career offender
enhancement, we take a “categorical approach.” James v. United States, 127 S. Ct.
1586, 1593–94 (2007). This approach “look[s] only to the fact of conviction and
the statutory definition of the prior offense . . . . [without examining] particular
facts disclosed by the record of conviction.” Id. (citations and internal quotation
marks omitted); see also Chambers v. United States, 129 S. Ct. 687, 690 (2009)
(noting that courts should examine a crime as the statute defines it, and not
consider extreme situations). Our inquiry is different for crimes listed in the
ACCA or section 4B1.2 than it is for “residual” crimes. See Harrison, 558 F.3d at
1285, 1291 & n.20 (describing the categorical approach for enumerated crimes and
residual crimes, and observing the similarity between the ACCA and Sentencing
Guidelines residual clauses).
In residual cases like Harrison -- and Whitson’s case, here -- we look to the
language of the statute itself to discern an offense’s elements and to determine how
it is “generically” committed. Id. at 1291-92; see also Chambers, 129 S. Ct. at 691
(performing such an analysis and concluding that failure to report to a penal
institution is not typically a violent offense). Until recently, if this analysis
convinced a court that the crime posed a “serious potential risk of physical injury,”
it qualified as a “violent felony.” James, 127 S. Ct. at 1594; United States v.
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Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002) (stating that non-overt act
conspiracy to commit robbery presents a serious potential risk of physical harm,
and concluding that it is an ACCA “violent felony”).
After Begay, our analysis must go further. We must consider whether the
prior crime is “roughly similar, in kind as well as in degree of risk posed” to an
enumerated crime. Begay, 128 S. Ct. at 1585. For example, the Supreme Court
concluded in Begay that despite the serious risk of physical harm posed by drunk
driving, a felony DUI conviction was too dissimilar from the enumerated crimes to
fall correctly under the Armed Career Criminal Act. The presence of enumerated
crimes “indicates that the statute covers only similar crimes, rather than every
crime that presents a serious potential risk of physical injury to another.” Id.
(citations and internal quotation marks omitted). Prior convictions must be
“roughly similar, in kind as well as in degree of risk posed,” to the enumerated
crimes. They must involve “purposeful, violent, and aggressive conduct.” Id. at
1585–86; see also Chambers, 129 S. Ct. at 692.
We therefore follow a “three-step inquiry” to determine if an offense is a
“crime of violence.” Harrison, 558 F.3d at 1287.
First, what is the relevant category of crime, determined by looking to how
the crime is ordinarily committed? Second, does that crime pose a “serious
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potential risk of physical injury” that is similar in degree to the risks posed by the
enumerated crimes? Third, is that crime similar in kind to the enumerated crimes?
Id.
1. The “Generic” Commission of the Offense
We turn first to South Carolina’s “criminal conspiracy” statute, which
defines the offense as “a combination . . . for the purpose of accomplishing an
unlawful object or lawful object by unlawful means.” S.C. Code Ann. § 16-17-
410. The statute does not require an overt act. See State v. Crocker, 621 S.E. 2d
890, 896 (S.C. Ct. App. 2005) (noting the lack of an overt act requirement for
criminal conspiracy). A plain reading, then, indicates that a person criminally
conspires in South Carolina when he agrees with at least one other to perform an
act unlawful in purpose or execution.
2. Similar in Degree of Harm
After examining the statute, we ascertain whether the typical commission of
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the offense presents a serious risk of physical harm. After Begay, this risk must be
similar in degree to that posed by section 4B1.1–2 enumerated offenses. Begay,
128 S. Ct. at 1585; Harrison, 558 F.3d at 1294. We have already concluded that
conspiracies to commit violent crimes pose a risk of physical harm, though without
the guidance in James and Begay. In Wilkerson v. United States, we determined
that a non-overt act conspiracy to commit robbery was a violent crime. 286 F.3d at
1324–25. We did so with the understanding that when a target offense poses a
serious potential risk of physical injury, a conspiracy to commit the target offense
“likewise presents such a risk.” Id. at 1325.
Conspiracies increase the potential risk of harm to others by raising the
“chances that the planned crime will be committed [from] a mere possibility . . . .
[to] a significant probability.” Id. at 1326 (internal quotation marks omitted). We
stand by Wilkerson as far as it concerns serious risk of physical injury; and its
reasoning remains sound, even after Begay. If a conspiracy makes the commission
of the target offense likelier, then conspiracy to commit a violent crime necessarily
increases the risk of violence to others. And as we recognized in Wilkerson, when
a defendant “reaches an agreement with a co-conspirator to commit a [violent
crime] . . . his conduct presents at least a potential risk of physical injury” to others.
Id. at 1325.
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3. Begay Similarity in Kind
After Begay, we must consider whether criminal conspiracy is “similar, in
kind as well as degree of risk posed” to the enumerated offenses. Begay, 128 S.
Ct. at 1585–86. A crime is “roughly similar in kind” to listed offenses if it is
characterized by “purposeful, violent, and aggressive conduct.” Id. at 1586. Put
another way, criminal conspiracy is only a “crime of violence” if the conspiracy, in
itself, involves conduct that is purposeful, violent, and aggressive. We conclude
that it does not.
Conspiring to commit a crime is a purposeful act. The statute itself requires
that the conspirators intend that the target offense be committed. See S.C. Code
Ann. § 16-17-410. But in South Carolina, the “gravamen of conspiracy is an
agreement or combination. An overt act in furtherance of the conspiracy is not
necessary to prove the crime.” Crocker, 621 S.E. 2d at 896. To see how the
simple act of agreeing is either “violent” or “aggressive” is difficult. No violence
or aggression is associated with forming an agreement. Without more, agreement
lacks the requisite violence and aggression to be “roughly similar in kind” to
“burglary, arson,” and the other enumerated crimes.
We have concluded that other conduct, more “confrontational” than mere
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agreement, fails to satisfy the similarity test. In Harrison, we concluded that failing
to obey a police officer’s signals was not a violent crime. Harrison, 558 F.3d at
1294. The offense, in the “ordinary case, involves only a driver who willfully
refuses to stop and continues driving on-but without high speed or recklessness . . .
.” Id. Despite the admittedly “confrontational” nature of the offense, failure to
stop a motor vehicle “without high speed or reckless conduct, is not sufficiently
aggressive and violent enough to be like the enumerated ACCA crimes.” Id. at
1295. Likewise, we concluded in Archer, 531 F.3d at 1351–52, that unlawful
possession of a concealed weapon did not satisfy the similarity in kind inquiry.
Unlike the enumerated offenses, which are “aggressive, violent acts aimed at other
persons or property where persons might be located and thereby injured,”
possessing a concealed weapon is “passive” and unrelated to “overt action.” Id. at
1351. The same reasoning supports our conclusion today. Unless a crime -- as
generically committed -- involves purposeful, violent, and aggressive conduct, it
does not satisfy the Begay similarity in kind test.
We know that the Fourth Circuit recently concluded that a conspiracy to
commit robbery with a dangerous weapon is a violent crime under the ACCA. See
United States v. White, 571 F.3d 365, 373 (4th Cir. 2009). Looking at the kind of
problem we look at today, the Fourth Circuit in White reasoned that a conspiracy
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“cannot be divorced from its violent objective.” Id. at 372. The Fourth Circuit
suggests that by increasing the likelihood of violent crime, a conspiracy is itself
violent. Id. (“[B]y entering into a criminal partnership to commit . . . violent
crime, conspirators render acts of violence . . . much more likely.”).
In Whitson’s case, the government has argued that White properly applies
the Begay test. We respect the Fourth Circuit’s judgment, but our duty requires
that we not defer to it. And we cannot agree today. To us, White seems to conflate
“degree of risk” with “kind of risk,” without determining if the conspiracy by itself
was violent. It may be true that a conspiracy and its target offense are linked, but
as we understand it, the Begay analysis requires us to separate them and to
examine the conspiracy alone. Only if that examination reveals violence and
aggression in the typical case is the offense a “crime of violence.”
Seeing no violence or aggression in the act of agreement, we conclude that
non-overt act conspiracy is not a section 4B1.1 “crime of violence.” Accordingly,
we VACATE Whitson’s sentence and REMAND for resentencing consistent with
this opinion.
VACATED and REMANDED.
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