Monday, December 28, 2015

Into the Morass: Beware Enumerated "Commentary Offenses"

Today we will focus more closely on two types of predicate offenses: (1) force-clause offenses, and (2) enumerated offenses. The career-offender guideline contains both. It defines "crimes of violence" that trigger the guideline as "any offense under federal or state law, 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, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."

U.S.S.G. § 4B1.2(a) (stricken language unconstitutional under United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015)).

When asking whether a prior conviction matches a predicate offense, courts will compare the prior’s elements either to (1) the elements of the force-clause, in which case the prior must contain an element of physical force (actual violence, either used, attempted, or threatened), against the person of another (force against property won’t do here); or to (2) the generic elements of an enumerated offense (more on generic elements later).

BUT LOOK OUT! The application notes to § 4B1.2 define "Crime of violence" to include "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." § 4B1.2, comment. (n.1). The inclusion of these enumerated offenses in the commentary is not definitive. These "commentary offenses" will not trigger the career-offender guideline unless they either qualify as force-clause offenses under subsection (1), or are in fact listed as enumerated offenses in the guideline itself in subsection (2).

This is because "it is the text [of the guideline], of course, that takes precedence." United States v. Shell, 789 F.3d 335, 340 (4th Cir. 2015); see also Stinson v. United States, 506 U.S. 36, 43 (1993) ("If . . . commentary and the guideline it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline.").

The Shell case provides a perfect example of this point. The question in Shell was whether a prior conviction for statutory rape qualified as a crime of violence for career-offender purposes. The Fourth Circuit held that it did not, despite the inclusion of "forcible sex offenses" in the list of commentary offenses. Even if the prior conviction might qualify as a "forcible sex offense," it did not qualify under the force-clause itself because it did not require "physical force against the person of another," and thus it could not be used to trigger the career-offender guideline: "§ 4B1.2 provides a separate two-part definition of crime of violence in its text, with the commentary serving only to amplify that definition, and any inconsistency between the two resolved in favor of the text." 789 F.3d at 345. See also United States v. Armijo, 651 F.3d 1226, 1236-37 (10th Cir. 2011) (prior conviction for reckless manslaughter did not trigger career-offender guideline despite inclusion of "manslaughter" in list of commentary offenses: "To read application note 1 as encompassing non-intentional crimes would render it utterly inconsistent with the language of § 4B1.2(a), which, as set out at length above, only applies to purposeful or intentional conduct.").

Bottom line: Don't let § 4B1.2's enumerated commentary offenses fool you or the court. Qualifying priors must still match the definition of "crime of violence" that appears within the guideline itself.

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