United States v. Frank Scharschell
664 F. App'x 596
| 8th Cir. | 2016Background
- Defendant Frank Scharschell pleaded guilty to possession with intent to distribute ≥5 grams methamphetamine; sentenced as a career offender under U.S.S.G. § 4B1.1 to 188 months.
- PSR relied on two prior Kansas felony convictions: (1) 2006 robbery; (2) 2011 conspiracy to commit aggravated robbery.
- Scharschell objected that his 2011 conspiracy conviction is not a § 4B1.2 "crime of violence," arguing the Guidelines' residual clause is void under Johnson and that conspiracy does not require violent force.
- Government conceded the residual clause in § 4B1.2 is void for vagueness but relied on Application Note 1, which expressly includes conspiracy as a covered offense for "crime of violence."
- District court overruled the objection, adopted the career-offender range; on appeal the court assumed (without deciding) the residual clause was void but resolved the case under the force clause and the Guidelines commentary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Scharschell's Kansas conviction for conspiracy to commit aggravated robbery is a "crime of violence" under U.S.S.G. § 4B1.2 | Scharschell: residual clause is void after Johnson and conspiracy is not an element-based "force" offense | Government: even if residual clause is void, Application Note 1 to § 4B1.2 treats conspiracy as included for "crime of violence" | The court affirmed: conspiracy to commit aggravated robbery qualifies under § 4B1.2 via the Guidelines' commentary and the force-clause analysis |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as unconstitutionally vague)
- United States v. Ross, 613 F.3d 805 (8th Cir. 2010) (discussing differences between § 924(e) definitions and the career-offender guideline and relying on guideline commentary)
- United States v. Brown, 550 F.3d 724 (8th Cir. 2008) (robbery/aggravated robbery qualifies under force clause for career-offender purposes)
- United States v. Rodriguez, 664 F.3d 1032 (6th Cir. 2011) (conviction for an enumerated violent crime counts under Application Note 1 where conduct is knowing and intentional)
- United States v. Carpenter, 11 F.3d 788 (8th Cir. 1993) (treating Guideline commentary as binding when interpreting career-offender definitions)
- Taylor v. United States, 495 U.S. 575 (1990) (adopting a "generic, contemporary meaning" approach to offense definitions)