A Wrong Approach to the Categorical Approach for Conspiracy – and a Hope It Might Be Corrected.

April 8, 2014
By Hanging Out with Carl Gunn


  • For now, conspiracy to commit a “violent felony” is also itself a “violent felony” under the Armed Career Criminal Act.
  • But a Ninth Circuit panel has described this holding as “illogical” and “questionable” in light of Supreme Court precedent.
  • A petition for rehearing en banc is now pending, with a government response ordered, so there could be en banc review of this rule.


The passing citation of James v. United States, 550 U.S. 192 (2007) in the post discussing attempt last week segues nicely into the second conspiracy case I noted in my post two weeks ago – United States v. Chandler, 743 F.3d 648 (9th Cir. 2014). The issue in the James case was whether attempted burglary qualifies as a “violent felony” under what is often called the “otherwise clause,” or sometimes the “residual clause,” of the Armed Career Criminal Act. That clause brings within the definition of “violent felony” any offense that “otherwise involves conduct that presents a serious potential risk of injury to another,” 18 U.S.C. § 924(e)(B)(ii). One of the issues inChandler was whether and when conspiracy to commit a crime of violence came within this “otherwise clause.” See id., 743 F.3d at 652. The court held it did, but only because of the court’s prior opinion in United States v. Mendez, 992 F.2d 1488 (9th Cir. 1993), which held that conspiracy to commit a crime of violence always creates a substantial risk of injury simply because it “provides a focal point for collective criminal action” that “increases the chances that the planned crime will be committed.” Chandler, 743 F.3d at 652 (quoting Mendez, 992 F.2d at 1491 and United States v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985)).

But as I said in the post two weeks ago, there’s a silver lining in this case. Every one of the judges who signed onto the per curiam opinion in Chandler also signed a concurring opinion authored by Judge Bybee, who certainly isn’t a flaming liberal. That concurring opinion began by noting, as had the per curiam opinion in which it concurred, that Mendez was controlling precedent which required the holding in the majority per curiam opinion. Chandler, 743 F.3d at 657 (Bybee, J., concurring). See also id. at 654 (majority opinion). But the concurring opinion then explained that Mendez was (1) “illogical” and (2) “questionable in light of . . . James.” Chandler, 743 F.3d at 658 (Bybee, J., concurring).

So we have about as clear an invitation for a petition for rehearing en banc as there could be. And, indeed, a petition for rehearing en banc was filed – on March 13 – followed by an order from the court that the government must file a response. So let’s cross our fingers and hope.