UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES STATES, Defendant-Appellant.
No. 22-1477
United States Court of Appeals For the Seventh Circuit
ARGUED APRIL 6, 2023 — DECIDED JULY 5, 2023
Before FLAUM, ST. EVE, and PRYOR, Circuit Judges.
ST. EVE, Circuit Judge. During the summer of 2001, Charles States belonged to a drug trafficking organization known as the Carman Brothers Crew. He participated in four kidnappings, during which he beat and threatened his victims to extort information, drugs, money, and other property for the Crew‘s benefit. When FBI agents and Chicago police officers went to States‘s apartment in 2002 to arrest him, States opened fire and hit one police officer in the finger.
States was charged with racketeering, attempted murder, kidnapping, drug possession, and firearms offenses. A jury convicted him on all counts, and he was sentenced to life plus 57 years in prison. After spending more than 15 years challenging his convictions and sentence, the district court resentenced him in 2022 to 30 years. States now appeals the validity of one of his firearms convictions and argues that the district court erred by refusing to group certain counts for sentencing purposes. We affirm his conviction and sentence.
I. Background
A. Offense Conduct
The Carman Brothers Crew, named for Richard and Jerome Carman, operated in
In July 2001, States and Jerome Carman kidnapped a man named Ramon at gunpoint. Over the course of two days, States and Jerome physically restrained, threatened, and beat Ramon, coercing him into handing over 5.5 kilograms of cocaine and three firearms. States received 1 kilogram of cocaine as payment. On August 1, 2001, States helped kidnap three more individuals. He threatened two victims at gunpoint to extract information about the third victim, who had stolen from the Crew. States shot the third victim‘s dog and stole a Rolex and Lexus from him. States received the Rolex as payment.
On October 9, 2002, FBI agents and Chicago police officers went to States‘s apartment to execute a warrant for his arrest. States fired five shots through the door and hit a police officer in the finger, causing an injury that required surgery. Law enforcement then arrested States.
B. Procedural History
States was indicted on 12 counts, and in 2005 a jury convicted him on all counts. The district court sentenced him to life in prison, plus 57 years in consecutive sentences for three violations of
In 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act,
States‘s predicate crimes of violence were Hobbs Act extortion,
Because the district court had vacated one of States‘s convictions, it resentenced him in full. The updated Presentence Investigation Report (“PSR“) grouped States‘s convictions as follows:
- Count Group 1 encompassed the drug-related offenses—racketeering, racketeering conspiracy, conspiracy to possess cocaine with intent to distribute, and possession of cocaine with intent to distribute;
- Count Group 2 comprised the convictions related to Ramon‘s kidnapping—racketeering (based on different racketeering acts than in Count Group 1), racketeering conspiracy, and extortion;
- Count Groups 3–5 related to the other three kidnappings; and
- Count Group 6 comprised the offenses States committed during his October 2002 arrest.
The PSR did not group States‘s two remaining
At sentencing in February 2022, States objected to the PSR‘s failure to group Count Groups 1 and 2. He argued that they “involv[ed] substantially the same harm” because each count group “embodie[d] conduct that [was] treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” U.S.S.G. § 3D1.2(c).2 The district court disagreed, finding that these offenses were “different occurrence[s] in every way, including the dangers to the community and the danger to a single individual,” so it would be “incongruous to group them together.” The court imposed concurrent sentences on Count Groups 1–6, the longest of which was 20 years, plus two consecutive five-year sentences for the
States appealed. He argues, first, that the
II. Motion to Vacate
States appeals the denial of his motion to vacate his conviction for carrying a firearm during and in relation to a federal crime of violence.
A. Analytical Framework
The elements clause of
We apply the modified categorical approach when a predicate offense appears in a “divisible” statute. Gamboa v. Daniels, 26 F.4th 410, 416 (7th Cir. 2022) (citing Chazen v. Marske, 938 F.3d 851, 857 (7th Cir. 2019)). A divisible statute “sets out one or more elements of the offense in the alternative.” Id. (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)). The modified categorical approach requires us to “‘determine what crime, with what elements’ [the] defendant was really ‘convicted of‘” within the divisible statute, before deciding whether it is a valid
The statutes at issue here—
B. United States v. Taylor
The Supreme Court analyzed how to apply the categorical approach to attempt offenses in United States v. Taylor, where it considered whether attempted Hobbs Act robbery is a crime of violence. 142 S. Ct. at 2018. Hobbs Act robbery is the “unlawful taking or obtaining of personal property from the person … of another, against his will, by means of actual or threatened force.”
Taylor‘s categorical approach analysis centered on the elements of completed Hobbs Act robbery and the elements of attempt. After reviewing the elements of Hobbs Act robbery, the Court reasoned “that to win a case for attempted Hobbs Act robbery the government must prove two things: (1) The defendant intended to unlawfully take or obtain personal property by means of actual or threatened force, and (2) he completed a ‘substantial step’ toward that end.” Id. at 2020 (citation omitted). The categorical approach asks if an offense “always requires the government to prove … the use, attempted use, or threatened use of force,” but a person can commit attempted Hobbs Act robbery by attempting to threaten force. Id. at 2020–21. Because an attempt to threaten
Taylor‘s analysis did not end there. Although the elements of attempted Hobbs Act robbery do not match
The Court used a hypothetical to illustrate why attempted Hobbs Act robbery does not satisfy the elements clause. A would-be Hobbs Act robber named Adam cases a store, purchases supplies, plans his getaway, and writes a note reading “Your money or your life” to pass to the cashier. Id. at 2021. “The note is a bluff, but Adam hopes its implication that he is armed and dangerous will elicit a compliant response.” Id. Adam is arrested as he crosses the threshold of the store and never conveys his threat to the cashier. Id. On this fact pattern, Adam has committed attempted Hobbs Act robbery even though he did not use, attempt, or threaten force; “[h]e may have intended and attempted to [threaten force], but he failed.” Id. Thus, the Court concluded, “no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.” Id.
C. The Scope of Taylor
The parties dispute how broadly Taylor applies. The government contends that Taylor‘s holding that an attempt is not a crime of violence is limited to attempts to commit offenses—like Hobbs Act robbery—that can be completed without the use of actual force. Under this interpretation, adopted by the two other circuits to have considered the issue, Taylor leaves open the possibility that an attempt to commit an offense that requires the use of force may be a crime of violence. See Alvarado-Linares v. United States, 44 F.4th 1334, 1346–47 (11th Cir. 2022); United States v. Martin, No. 22-5278, 2023 WL 2755656, at *5–7 (6th Cir. Apr. 3, 2023), cert. docketed, No. 22-7760 (U.S. June 12, 2023).
States, in contrast, argues that Taylor applies to all attempt offenses and establishes that attempt crimes are never crimes of violence. He reads Taylor to contain no language limiting its reach to offenses that can be committed without the use of actual force. States insists that when the Court observed that “[w]hatever one might say about completed Hobbs Act robbery, attempted Hobbs Act robbery
We agree with the government and our sister circuits. Taylor is silent about attempts to commit crimes that require the use of force, and the sounder reading of “[w]hatever one might say about completed Hobbs Act robbery” is that the Court was declining to reach a question unnecessary to its decision. See, e.g., MOAC Mall Holdings LLC v. Transform Holdco LLC, 143 S. Ct. 927, 940 n.10 (2023). Further, States‘s reading of Taylor—that no attempt offense is a crime of violence—would effectively strike “attempted use … of physical force” from
Pushing back on this conclusion, at oral argument States contended that his interpretation of Taylor would not read the attempted force clause out of
Federal statutes seldom include attempted conduct as an element of a completed crime. Criminal assault statutes do not use this formulation. E.g.,
So while States‘s reading might not read attempted force out of the statute entirely, it is implausible that
D. Attempt Offenses and Crimes of Violence
That brings us to whether attempted murder is a crime of violence under
1. Hill v. United States
Hill v. United States clarified how we analyze attempt offenses under elements clauses analogous to
First, we concluded that “an attempt to commit a crime should be treated as an attempt to commit every element of that crime.” Hill, 877 F.3d at 719 (citing Morris, 827 F.3d at 698–99 (Hamilton, J., concurring)). The Morris concurrence “recognized that the crime of attempt requires only a substantial step toward completion,” but a defendant must also “intend to commit every element of the completed crime in order to be guilty of attempt.” Id. The combination of these two elements, the concurrence thought, is sufficient to treat an attempt offense as an attempt to commit each element of the completed offense. Id. Thus, “[w]hen the intent element of the attempt offense includes intent to commit violence against the person of another, … it makes sense to say that the attempt crime itself includes violence as an element,” making the attempt a valid predicate for purposes of
Second, we reasoned that since “the fact that a statute contains as an element attempt at physical force suffices to label the crime itself a [crime of violence], it follows that an attempt to commit a [crime of violence] is itself a [crime of violence].” Hill, 877 F.3d at 719 (citing Morris, 827 F.3d at 689–99 (Hamilton, J., concurring)). From that premise, we concluded that “[w]hen a substantive offense would be a [crime of violence] under [§ 924(c)] and similar statutes, an attempt to commit that offense also is a [crime of violence].” Id.
Turning to the facts in Hill, we observed that murder is a crime of violence because it requires the use of force. Id. at 720. We then held that because murder is a crime of violence, attempted murder is also a crime of violence. Id.
2. Taylor‘s Impact on Hill
Part of the reasoning supporting Hill‘s holding is no longer valid, in particular the conclusion that if an offense is a crime of violence, so too is an attempt to commit that offense. Taylor rejected the argument “that the elements clause encompasses not only any offense that qualifies as a ‘crime of violence’ but also any attempt to commit such a crime.” 142 S. Ct. at 2021–22. Hobbs Act robbery is an example: the completed offense is a crime of violence, Worthen, 60 F.4th at 1067, but an attempt to commit it is not. Taylor, 142 S. Ct. at 2020–21.
States argues that Taylor also abrogates Hill‘s separate conclusion that an attempt is treated as an attempt to commit each element of the completed offense. But the only time he mentions that part of Hill, he alters our wording in a small but meaningful way. According to States, Hill stated that “the intent element of attempted murder necessarily includes an intent to commit all of the elements of the substantive offense.” (emphasis added). Although we used similar language in Hill, we specifically concluded that “an attempt to commit a crime should be treated as an attempt to commit every element of that crime.” 877 F.3d at 719 (emphasis added). Hill‘s logic, to borrow the Eleventh Circuit‘s phrasing,
Taylor is consistent with this understanding of attempt. As the Court explained, the hypothetical Adam attempted to commit Hobbs Act robbery although “he never even got to the point of threatening the use of force against anyone or anything.” 142 S. Ct. at 2021. But Adam “may have intended and attempted to do just that.” Id. (emphasis added). Saying that Adam attempted to threaten force squares with treating an attempt as an attempt to commit each element of the completed crime because threatening force is an element of Hobbs Act robbery. See
States‘s argument to the contrary is unavailing because he discusses the elements of attempt separately rather than in combination. While Taylor stated that “an intention is just that, no more,” and that a substantial step need not be violent, 142 S. Ct. at 2020, proof of both elements is what constitutes attempt to commit each element of the completed offense. See Hill, 877 F.3d at 719; Alvarado-Linares, 44 F.4th at 1347; cf. United States v. D.D.B., 903 F.3d 684, 692–93 (7th Cir. 2018) (holding that Indiana attempted robbery is not a crime of violence because attempt in Indiana does not require proof of intent to commit each element of the completed offense).
To be sure, Taylor analyzed whether each element of attempt always entails the use, attempted use, or threatened use of force, spending considerable time on the substantial step element. But the discussion of substantial steps focused on whether the substantial step itself satisfied
Because Taylor‘s substantial step analysis focused on that element alone, it does not undermine Hill‘s conclusion that an attempt constitutes an attempt to commit each element of the substantive offense or the reasoning underlying it. The interaction of the intent and substantial step elements was central to Hill‘s attempt analysis. See Morris, 827 F.3d at 698–99 (Hamilton, J., concurring) (focusing on the fact that “[a]ttempt requires intent to commit the completed crime plus a substantial step toward its completion“); Hill, 877 F.3d at 719 (adopting this reasoning). Taylor said nothing about the interaction between these elements and therefore did not reject Hill‘s conclusion that an attempt constitutes an attempt to commit each element of the substantive offense.9
We therefore hold that Taylor abrogates Hill only to the extent that Hill reasoned that “[w]hen a substantive offense would be a [crime of violence] …, an attempt to commit that offense also is a [crime of violence].” 877 F.3d at 719. Its separate conclusion that “an attempt to commit a crime should be treated as an attempt to commit every element of that crime,” id., is consistent with Taylor and remains good law.10
3. Application
Applying these principles to States‘s attempted murder conviction is straightforward. The government proved that he intended to kill a federal officer engaged in his official duties and took a substantial step toward that end. See
III. Grouping
The second issue on appeal concerns sentencing. While calculating States‘s Sentencing Guidelines range, the district court did not group Count Group 1 (drug trafficking offenses) and Count Group 2 (kidnapping Ramon). States argues that U.S.S.G. § 3D1.2(c) required grouping these counts.
We review the district court‘s application of the Sentencing Guidelines de novo. United States v. Lomax, 51 F.4th 222, 228 (7th Cir. 2022). Application notes to the Guidelines are not mere commentary. United States v. Carnell, 972 F.3d 932, 939 (7th Cir. 2020). They are analogous to agencies’ interpretations of their own regulations, Stinson v. United States, 508 U.S. 36, 44–45 (1993), which may be entitled to Auer deference (also called Seminole Rock deference). See United States ex rel. Proctor v. Safeway, Inc., 30 F.4th 649, 662 n.19 (7th Cir. 2022), vacated on other grounds, 143 S. Ct. 1391 (2023). Thus, we have held that an application note accompanying a guideline “is binding authority ‘unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.‘” United States v. Smith, 989 F.3d 575, 584 (7th Cir. 2021) (quoting Stinson, 508 U.S. at 38).12
Introductory commentary to the grouping section of the Sentencing Guidelines Manual explains that the purpose of grouping is “to provide incremental punishment for significant additional criminal conduct.” U.S.S.G. Ch.3, Pt.D, intro. comment. Grouping also “prevent[s] multiple punishment for substantially identical offense conduct” by avoiding the multiple-sentence enhancement that would otherwise apply. Id.; see also United States v. Curtis, 66 F.4th 690, 692 (7th Cir. 2023) (discussing the policy underlying grouping).
The guideline at issue in this appeal is U.S.S.G. § 3D1.2, which requires grouping counts “involving substantially the same harm.” The relevant provision provides that offenses involve substantially the same harm “[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” § 3D1.2(c).13 Application Note 5 clarifies that § 3D1.2(c) “applies only if the offenses are closely related.” See United States v. Vucko, 473 F.3d 773, 779 (7th Cir. 2007) (“[C]rimes … must be ‘closely related’ to be grouped under § 3D1.2(c) according to the commentary.“).14
All agree that “closely related” refers primarily to the defendant‘s offense conduct, not only to the harm caused by his offenses. This understanding ensures that Application Note 5 and the main text of § 3D1.2 perform distinct functions. Because § 3D1.2(c) defines “substantially the
B. States‘s Offenses
The district court declined to group Count Group 1, the drug trafficking offenses, and Count Group 2, the counts related to the kidnapping of Ramon. It disagreed with States “that one [count group] actually encompasses the other,” finding that “[t]he kidnapping count with respect to a particular individual is such a different occurrence in every way” from the drug convictions. States contends that these count groups are closely related and each incorporates the conduct of the other through a specific offense characteristic or adjustment, so § 3D1.2(c) requires grouping. He argues that he participated in Ramon‘s kidnapping solely to further the drug trafficking conspiracy, and his only significant drug trafficking conduct was the kidnapping. In his view, his offense conduct overlaps so much in timing and purpose that Count Groups 1 and 2 should have been grouped.
Like the district court, we conclude that grouping these offenses would be improper. States helped kidnap and hold Ramon for two days in July 2001, but he also worked with the Carman Brothers Crew for a substantial part of July and August 2001. And although States‘s primary role with the Crew was kidnapping, he participated in other drug-related conduct, such as cooking cocaine into cocaine base. Drug-possession offenses involve very different acts than kidnapping, extortion, and robbery, and even recognizing the relatively minor direct role States played in the Crew‘s drug trafficking activity, he is culpable for his coconspirators’ conduct in furtherance of the conspiracy. See, e.g., United States v. Jones, 900 F.3d 440, 446 (7th Cir. 2018). The drug trafficking crimes in Count Group 1 involve a broader range of conduct committed over a greater time period, inflicting diffuse harm on society. In contrast, the kidnapping in Count Group 2 took place over a shorter time span, and the criminal conduct inflicted direct harm on a single victim. These offenses are not closely related. See Vucko, 473 F.3d at 779 (holding that offenses were not closely related when they involved different victims, harms, conduct, and time periods).
States counters that failing to group these counts would render § 3D1.2(c) superfluous. He asserts that under our interpretation of “closely related,” if it is proper to group counts under § 3D1.2(c), then those counts would also group under a different Guidelines provision. Grouping under § 3D1.2(c) depends on the specific conduct at issue, though. While States‘s kidnapping and drug trafficking offenses are not closely related enough to group, it is possible that similar offenses would group in another case. But even if States is correct, and § 3D1.2(c) rarely results in grouping offenses that would not also be grouped by a different provision, that would not change the outcome here. The plain meaning of Application Note 5 makes clear that offenses being closely related is a prerequisite for grouping under § 3D1.2(c), Vucko, 473 F.3d at 779, and
The conduct embodied by Count Groups 1 and 2 is not closely related enough to permit grouping under § 3D1.2(c), so the district court did not err by declining to group these counts.15
IV. Conclusion
The district court correctly held that attempted murder of a federal officer is a crime of violence within the meaning of
AFFIRMED.