32 F.4th 271
3rd Cir.2022Background:
- Abreu pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); the PSR applied U.S.S.G. § 2K2.1(a)(4) based on a prior New Jersey conviction for conspiracy to commit second‑degree aggravated assault, raising his offense level from 16 to 22.
- The Government relied on U.S.S.G. § 2K2.1 cmt.1, which cross‑references § 4B1.2 and its commentary, arguing that “crime of violence” in § 2K2.1 includes conspiracies.
- Abreu argued the text of § 4B1.2(a) requires an element of use/attempted/threatened force and does not itself include conspiracy; he invoked Stinson (and later Kisor principles) to say the commentary cannot override clear textual meaning.
- The District Court followed Third Circuit precedent in Hightower, applied the § 2K2.1(a)(4) enhancement, and sentenced Abreu to 56 months’ imprisonment.
- On appeal the Third Circuit found Abreu had preserved his argument, reviewed de novo, relied on Nasir and Kisor reasoning, held that conspiracy is not a “crime of violence” for § 2K2.1, vacated the sentence, and remanded for resentencing.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation / Standard of Review | Abreu objected at sentencing that the commentary conflicts with text and cited Stinson; preserved for appeal | Government urged plain‑error review because argument insufficiently particularized | Preserved; appellate review de novo |
| Whether a prior conspiracy conviction is a “crime of violence” under U.S.S.G. § 2K2.1 | Conspiracy lacks an element of force and § 4B1.2(a)’s text excludes inchoate crimes; commentary cannot expand clear text | §2K2.1 cmt.1 adopts §4B1.2 and its commentary; §2K2.1 is ambiguous so commentary should apply to include conspiracy | Conspiracy is not a “crime of violence” under §2K2.1; enhancement was improper; sentence vacated and remanded |
Key Cases Cited
- Stinson v. United States, 508 U.S. 36 (explains weight to give Sentencing Commission commentary)
- Kisor v. Wilkie, 139 S. Ct. 2400 (limits deference to agency/regulatory interpretations; requires genuine ambiguity)
- United States v. Nasir, 17 F.4th 459 (3d Cir. en banc) (held inchoate offenses excluded from § 4B1.2 definition)
- United States v. Hightower, 25 F.3d 182 (3d Cir. 1994) (prior Third Circuit precedent treating inchoates as covered)
- Johnson v. United States, 576 U.S. 591 (2015) (found residual‑clause vagueness relevant to commentary/text interplay)
- United States v. Scott, 14 F.4th 190 (3d Cir. 2021) (standards for reviewing whether an offense qualifies as a crime of violence)