PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-4296 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TAISON MCCOLLUM, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cr-00199-MOC-DCK-1) Argued: January 25, 2018 Decided: March 20, 2018 Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges. Vacated and remanded by published opinion. Judge Duncan wrote the opinion, in which Judge Traxler joined. Judge Traxler wrote a concurring opinion. Judge Wilkinson wrote a dissenting opinion. ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, Caleb H. Newman, FEDERAL PUBLIC DEFENDER WESTERN DISTRICT OF NORTH CAROLINA, Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. DUNCAN, Circuit Judge: Appellant Taison McCollum pleaded guilty in federal court to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). At his sentencing, the district court applied a sentencing enhancement under § 2K2.1(a)(4)(A) of the Sentencing Guidelines based on McCollum’s prior conviction under 18 U.S.C. § 1959(a)(5) for conspiracy to commit murder in aid of racketeering. McCollum argues that the district court erred because conspiracy under § 1959(a)(5) does not require an overt act and is therefore broader than generic conspiracy. As we explain below, we are constrained by the Guidelines text and precedent to agree. The dissent, on the other hand, achieves the result it prefers by overlooking inconvenient Supreme Court and circuit precedent interpreting the Guidelines language at issue. 1 As we are reluctant to do so, we vacate McCollum’s sentence and remand for resentencing. I. McCollum pleaded guilty in the Western District of North Carolina to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). The presentence investigation report asserted that McCollum had two prior convictions that qualified as crimes of violence under § 2K2.1, the Guidelines provision that establishes the base 1 Indeed, the dissent acknowledges that the majority’s “error” is that it “mechanically applies” the Supreme Court’s direction to compare the elements of crimes, not their labels. Yet it simultaneously refuses to apply the controlling circuit precedent that obliges us to analyze inchoate crimes like conspiracy and their objects separately, and no amount of handwringing, hyperbole, or misdirection can obscure that fact. 2 offense level for a felon in possession of a firearm: a New Jersey conviction for aggravated manslaughter, and a conviction under 18 U.S.C. § 1959(a)(5) for conspiracy to commit murder in aid of racketeering. These two convictions supported an enhancement that increased McCollum’s base offense level from fourteen to twenty-four. The district court sustained McCollum’s objection to classification of his New Jersey conviction as a crime of violence but held that McCollum’s § 1959(a)(5) conviction was properly classified ...
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