Junior Abreu pled guilty in June 2020 to possessing a firearm as a convicted felon. In calculating the applicable Guidelines range, the district court applied an enhancement based on Abreu’s prior New Jersey conviction for conspiracy to commit second-degree aggravated assault.
Applying a de novo standard of review, the Third Circuit vacated the sentence and remanded the case for resentencing without the enhancement, holding it was error to include that Abreu’s conspiracy offense fell under the definition of a “crime of violence” for purposes of applying the enhancement.
U.S.S.G. § 2K2.1 does not define what constitutes a “crime of violence” but rather cites to the definition of “crime of violence” under U.S.S.G. 4B1.2. Section 4B1.2 has a list of enumerated crimes as “crimes of violence” and includes any offense with an element of force or threat of force. The list does not include conspiracy offenses, attempt offenses, or aiding and abetting offenses. Rather, only the commentary to 4B1.2 mentions these kinds of inchoate offenses.
The Third Circuit held that the district court erred in applying the enhancement for Abreu’s prior conviction based on the commentary under 4B1.2 because the definitions to “crime of violence” unambiguously excluded conspiracy offenses and the commentary cannot expand the Guidelines beyond their plain text.
Appeal from the District of New Jersey
Opinion by Krause, joined by Ambro and Bibas
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