United States v. Gore
636 F.3d 728
| 5th Cir. | 2011Background
- Gore pled guilty to possession of a firearm by a felon under 18 U.S.C. § 922(g).
- PSR recommended ACCA-based sentencing as a career offender due to three prior state convictions: two serious drug offenses and conspiracy to commit aggravated robbery.
- Gore objected, arguing conspiracy to commit aggravated robbery is not a violent felony under ACCA; sought 33–41 month Guidelines range.
- District court overruled, sentencing Gore to 180 months.
- Appeal followed challenging the classification of the prior Texas conspiracy conviction under the ACCA residual clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas conspiracy to commit aggravated robbery is a violent felony | Gore contends it falls outside the residual clause. | Gore argues conspiracy offense is overinclusive and not violent. | Yes, it is a violent felony under ACCA. |
| Whether residual clause extends to conspiracies under Begay/James | Residual clause excludes conspiracies as a matter of law. | Residual clause should cover some conspiracies under Begay/James. | Residual clause includes some conspiracies; rejects categorical exclusion. |
| Whether the least culpable Texas means of conspiracy to aggravated robbery presents serious risk | Conspiracy could lack overt act or violence. | Overt act and target offense make it a serious risk. | Conspiracy with overt act presents a serious risk; within residual clause. |
| Whether Gore's prior offense used correct statute for career-offender calculation | Texas conspiracy statute properly used. | District court erred by citing the law on parties. | Plain error not shown; result would be the same. |
| Whether residual-clause vagueness or Due Process concerns apply to Gore | Residual clause vague; constitutional challenges. | James/ Begay reject vagueness claim. | No, residual clause not unconstitutionally vague; standards upheld. |
Key Cases Cited
- James v. United States, 550 U.S. 192 (1990) (residual clause interpretation for attempts/conspiracy; look at elements)
- Begay v. United States, 553 U.S. 137 (2008) (limits residual clause to crimes similar to enumerated examples)
- Chambers v. United States, 555 U.S. 122 (2009) (context on residual clause and violence-focused analysis)
- Martinez v. United States, 954 F.2d 1050 (5th Cir. 1992) (attempted burglary precedent pre-dates Begay; residual clause scope discussed)
- United States v. White, 571 F.3d 365 (4th Cir. 2009) (conspiracy to commit robbery with dangerous weapon; residual clause application)
- King v. United States, 979 F.2d 801 (10th Cir. 1992) (early conspiracy/residual clause treatment in another circuit)