Memorandum and Order — United States v. Darnell Sharon O'Conner (D. Kan., Dkt. 27, August 15, 2016)

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Memorandum and Order in the District of Kansas, by Judge Julie A. Robinson, on Darnell Sharon O'Conner's Objection Number One to the Presentence Investigation Report. He pleaded guilty to possessing a firearm as a felon and objected to a base offense level of 20, arguing it should be 14. The dispute turns on whether his 2008 conviction for aiding and abetting interference with commerce by robbery was a crime of violence. The Court applies the categorical and modified categorical approaches, finds aiding and abetting expressly included in the Guidelines commentary, and holds that robbery under 18 U.S.C. 1951(b)(1) meets the generic definition of robbery. It overrules the Objection.

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“Memorandum and Order — United States v. Darnell Sharon O'Conner (D. Kan., Dkt. 27, August 15, 2016).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-15-cr-20079-dkt-27-d-kan-62511a5bf2/, SHA-256 129cebfe52a8d3f2c19de3b290e7a28fc862994b1246b3fbf03e10fbb20ec994.

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Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 15-20079-01-JAR

DARNELL SHARON O’CONNER,

Defendant.

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant Darnell Sharon O’Conner’s Objection

Number One to the Presentence Investigation Report (“PSR”) (Doc. 20). Defendant objects to

Paragraph 15 of the PSR, which calculates his base offense level as 20 pursuant to United States

Sentencing Guidelines (“USSG”) § 2K2.1(a)(4)(A). Defendant argues that his base offense level

should begin at level 14 pursuant to USSG § 2K2.1(a)(6). In support of his Objection,

Defendant submitted a Sentencing Memorandum (Doc. 23), and the Government submitted a

Sentencing Memorandum (Doc. 24) in response. The Court held a sentencing hearing and heard

oral argument on Defendant’s Objection on June 1, 2016, at which time the Court took the

Objection under advisement. After considering the Objection and response in the PSR, the

sentencing memoranda, and the parties’ arguments at the June 1 hearing, the Court is prepared to

rule. For the reasons stated below, the Court overrules Defendant’s Objection Number One.

I. Background

Plaintiff pleaded guilty on December 21, 2015, to knowingly and unlawfully possessing,

as a felon, a firearm that had been transported in interstate commerce, in violation of 18 U.S.C.
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 2 of 11

§§ 922(g)(1) and 924(a)(2).1 Prior to Defendant’s sentencing hearing, the United States

Probation Office filed a PSR, in which it calculated Defendant’s base offense level as 20

pursuant to USSG § 2K2.1(a).2 Section 2K2.1(a) describes the applicable base offense levels for

offenses under § 922(g)(1), and provides that an offense involving a felon in possession of a

firearm subsequent to sustaining one felony conviction of either a crime of violence or a

controlled substance offense results in a base offense level of 20.3

The PSR described Plaintiff’s criminal history, including a conviction in 2008 for aiding

and abetting in the interference of commerce by means of robbery, in violation of 18 U.S.C. §

1951. The indictment in that case charged Defendant and others with:

steal[ing] property consisting of controlled substances from the owners of the
Omnicare Pharmacy, located at 453 East 111th Street, Kansas [City], Missouri, in
the presence of Harry G. Gianakon, employee of Omnicare Pharmacy, against his
will by means of actual and threatened force, violence, and fear of injury,
immediate and future, to his person, that is, defendants Abdullah “Doolly” Taylor
and Darnell “D” O’Conner, aided and abetted by [co-Defendants], used and
carried firearms during the demands for property at the pharmacy[,] [a]ll in
violation of Title 18, United States Code, Sections 1951 and 2.4

The PSR classified this previous conviction as a crime of violence, and therefore calculated

Defendant’s base offense level as 20. Defendant argues that the previous conviction was not for

a crime of violence, and therefore his base offense level should be 14.

II. Discussion

At the time of Defendant’s sentencing, USSG § 4B1.2(a) defined the term “crime of

violence” for purposes of § 2K2.1(a) as:

1
Doc. 11.
2
Doc. 20 at 5.
3
United States Sentencing Guidelines § 2K2.1(a)(4).
4
Doc. 23, Ex. 1 at 3.

2
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 3 of 11

any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury
to another.5

Application Note 1 in the Commentary to § 4B1.2 added the following:

For purposes of this guideline—“Crime of violence” and “controlled substance
offense” include the offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling.6

In Johnson v. United States, the Supreme Court held that the residual clause of the Armed

Career Criminal Act (“ACCA”), which provides that “crimes of violence” include crimes that

“otherwise involve[] conduct that presents a serious potential risk of physical injury to another,”

is unconstitutionally vague.7 Relying on Johnson, the Tenth Circuit held in United States v.

Madrid that the identical residual clause in § 4B1.2(a)(2) is void for vagueness.8 Thus, in the

wake of Johnson and Madrid, a defendant’s prior conviction will be considered a crime of

violence under § 4B1.2 only if the crime of conviction (1) has as an element the use, attempted

use, or threatened use of physical force against the person of another; or (2) meets the definition

of one of the generic crimes enumerated in § 4B1.2(a)(2) or the Commentary to § 4B1.2.9

5
The United States Sentencing Commission recently amended Guideline 4B1.2, effective August 1, 2016,
making changes to the definition of crime of violence. See United States Sentencing Guidelines § 4B1.2(a);
Beckworth v. United States, No. 4:12CR88, 2016 WL 4203510, at *2 n. 4 (Aug. 9, 2016).
6
United States v. Armijo, 651 F.3d 1226, 1230 (10th Cir. 2011) (citing previous version of Application Note
1 to Guidelines § 4B1.2).
7
135 S. Ct. 2551, 2557–63 (2015).
8
805 F.3d 1204, 1211 (10th Cir. 2015).
9
United States v. Mitchell, -- F. App’x --, No. 15-7076, 2016 WL 3569764, at *3 (10th Cir. June 29, 2016)
(explaining that after Johnson, offense must fit within the “elements clause” or the “enumerated offenses” clause to
constitute a crime of violence under § 4B1.2); see United States v. McConnell, 605 F.3d 822, 824 (10th Cir. 2010)
(quoting United States v. Charles, 576 F.3d 1060, 1066 (10th Cir. 2009)) (“Commentary to the Guidelines ‘is

3
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 4 of 11

In considering whether a past conviction is for a crime of violence, courts use the

“categorical approach,” under which they compare the elements of the statute forming the basis

of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as

commonly understood.10 Using the categorical approach, a sentencing court looks “not to the

particular facts of the prior conviction but to the terms of the underlying statute.”11 If the

relevant statute substantially corresponds to the generic offense, the conviction may be used for

enhancement purposes.12 But “[i]f the statutory definition of the prior conviction proscribes a

range of conduct that is broader than generic burglary, [the court must] then employ a modified-

categorical approach” that goes beyond the mere fact of conviction to determine whether the jury

was required to find all the elements of the generic offense.13 Courts also use the modified

categorical approach when a statute of conviction is divisible, meaning that it contains multiple

definitions of an offense, some of which do not qualify as crimes of violence.14 The modified

categorical approach allows the court to examine certain judicial records, such as the charging

document, plea agreement, plea colloquy, or jury instructions, to determine which alternative

offense of a divisible statute formed the basis of the defendant’s prior conviction.15

authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.’”); United States v. Hinton, No. 4:15-CR-26-FL, 2016 WL 632447, at *2 (E.D.N.C. Feb.
17, 2016) (quoting United States v. Mobley, 687 F.3d 625, 629 (4th Cir. 2012)) (“The crimes specified in
Application Note 1 of the Commentary to § 4B1.2 serve as additional enumerated offenses, or ‘example crimes’”).
10
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
11
United States v. Venzor-Granillo, 668 F.3d 1224, 1228 (10th Cir. 2012) (quoting United States v.
Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005)).
12
Venzor-Granillo, 668 F.3d at 1228 (quoting United States v. Barney, 955 F.2d 635, 638 (10th Cir.
1992)).
13
United States v. Ramon Silva, 608 F.3d 663, 665 (10th Cir. 2010) (Taylor v. United States, 495 U.S. 575,
599 (1990)).
14
Descamps, 133 S. Ct. at 2281; United States v. Hood, 774 F.3d 638, 645 (10th Cir. 2014), cert. denied,
135 S. Ct. 2370, 192 L. Ed. 2d 159 (2015); United States v. Zuniga-Soto, 527 F.3d 1110, 1117 (10th Cir. 2008).
15
Descamps, 133 S. Ct. at 2281; United States v. Venzor-Granillo, 668 F.3d 1224, 1228 (10th Cir. 2012)
(citations omitted).

4
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 5 of 11

A. Aiding and Abetting

Defendant first argues that his previous conviction for Aiding and Abetting in the

Interference of Commerce by Means of Robbery was not a crime of violence. Defendant was

charged with a violation of 18 U.S.C. § 2, which provides in relevant part:

(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a
principal.16

This offense is indivisible, as it defines aiding and abetting in a single way. Therefore,

the Court applies the categorical approach and turns to whether the crime of conviction

meets the generic elements of the crime.

Application Note 1 in the Commentary to § 4B1.2 states that “‘[c]rime of violence’ and

‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses.”17 Thus, aiding and abetting is expressly included as a

categorical crime of violence under § 4B1.2. Defendant’s conviction under 18 U.S.C. § 2 was

for aiding and abetting, and Defendant does not contend that the definition in this statute differs

from the generic definition of aiding and abetting.

Defendant, however, argues that aiding and abetting is not a crime of violence because it

is an inchoate crime. Defendant relies on United States v. Fell, in which the Tenth Circuit held

that a conviction for conspiracy to commit second-degree burglary pursuant to Colorado’s

conspiracy statute was not a “violent felony” under the Armed Career Criminal Act (“ACCA”).18

16
18 U.S.C. § 2.
17
United States Sentencing Guidelines § 4B1.2, cmt. n. 1.
18
511 F.3d 1035, 1044 (10th Cir. 2007).

5
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 6 of 11

The definition of “violent felony” under the ACCA provides that a “violent felony” is a felony

that:

(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.19

This definition is nearly identical to the definition of “crime of violence” in § 4B1.2.20 The

Court in Fell explained that Colorado’s conspiracy statute did not have as an element the use,

attempted use, or threatened use of physical force, and did not qualify as one of the enumerated

crimes under the ACCA.21 The Court also explained that because conspiracy to commit second-

degree burglary under the statute did not require a person to perform an overt act directed toward

the commission of the substantive crime, the offense did not qualify as a “violent felony” under

the residual clause of the ACCA.22

Defendant argues that pursuant to Fell, an inchoate offense cannot qualify as a crime of

violence, regardless of whether the offense is expressly enumerated in § 4B1.2.23 Fell, however,

did not address the effect of an inchoate crime being expressly listed as a crime of violence. To

the contrary, the court recognized in that case that conspiracy is not listed as an enumerated

“violent felony” in the ACCA.24 Here, the Commentary to § 4B1.2 expressly states that aiding

and abetting in the commission of a crime of violence itself constitutes a crime of violence.25

The commentary to § 4B1.2 is authoritative unless it violates the Constitution or a federal statute,
19
18 U.S.C. § 924(e)(2)(B).
20
See United States Sentencing Guidelines § 4B1.2(a).
21
511 at 1037.
22
Id. at 1042–44.
23
See Doc. 23 at 4–10.
24
Fell, 511 F.3d at 1037.
25
United States Sentencing Guidelines § 4B1.2, cmt. n. 1.

6
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 7 of 11

or is inconsistent with the language of another Guideline.26 Although aiding and abetting is an

inchoate crime, the reasoning in Fell does not stand for the proposition that an enumerated

inchoate crime cannot qualify as a crime of violence under the Guidelines. Therefore, because

aiding and abetting is specifically enumerated in the Commentary to § 4B1.2, and because that

commentary is authoritative, the Court finds that aiding and abetting in the commission of a

Hobbs Act robbery is a crime of violence if the substantive crime is a crime of violence.

B. Hobbs Act Robbery

18 U.S.C. § 1951(a) provides that a person commits Hobbs Act robbery when he or she

“in any way or degree obstructs, delays, or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion.”27 Section 1951(b)(1) in turn defines

“robbery” as “the unlawful taking or obtaining of personal property from the person or in the

presence of another, against his will, by means of actual or threatened force, or violence, or fear

of injury, immediate or future, to his person or property.”28 Section 1951(b)(2) defines

“extortion” as “the obtaining of property from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under color of official right.”29

The Government argues that Defendant’s prior conviction under § 1951 is a crime of

violence under the physical force clause and as an enumerated offense under § 4B1.2.30 The first

task in analyzing whether a conviction under § 1951 qualifies as a crime of violence is

26
Stinson v. United States, 508 U.S. 36, 38 (1993); United States v. Armijo, 651 F.3d 1226, 1235–37 (10th
Cir. 2011).
27
18 U.S.C. § 1951(a).
28
Id. § 1951(b)(1).
29
Id. § 1951(b)(2).
30
The Government apparently concedes that the conviction is not a crime of violence under the residual
clause of § 4B1.2 because that clause has been found unconstitutional. See Doc. 24; United States v. Madrid, 805
F.3d 1204, 1211 (10th Cir. 2015).

7
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 8 of 11

determining whether to apply the categorical approach or the modified categorical approach.31

Section 1951 provides that a person commits an offense by obstructing, delaying, or affecting

commerce “by robbery or extortion.”32 Subsection (b) provides different definitions for robbery

and extortion.33 Because the statute provides multiple, alternative definitions for the offense,

some of which may not qualify as a crime of violence, the Court must apply the modified

categorical approach to determine under which definition Defendant was convicted.34 Upon

review of the charging documents in Defendant’s previous case, it is clear that Defendant was

charged with robbery, rather than extortion, under § 1951(a). Therefore, the Court must consider

whether Hobbs Act robbery, as defined under § 1951(b)(1), is a crime of violence pursuant to

§ 4B1.2.

As explained above, the Commentary to § 4B1.2 is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with the language of another Guideline.35

Application Note 1 to § 4B1.2 provides that robbery is a crime of violence.36 Thus, robbery

under § 4B1.2 is a crime of violence if it meets the generic definition of robbery. Generic

robbery is most commonly defined as the illegal taking of property from another person or from

the immediate presence of another person by force or by intimidation.37 Section 1951(b)(1)

31
See United States v. Jackett, 610 F. App’x 766, 770 (10th Cir. 2015) (initially discussing district court’s
decision to resort to the categorical approach “in the first instance).
32
18 U.S.C. § 1951(a).
33
Id. § 1951(b).
34
See United States v. Redmond, No. 3:14-cr-00226-MOC, 2015 WL 5999317 (W.D.N.C. Oct. 13, 2015)
(holding that modified categorical approach applies to § 1951 because statute is divisible); United States v.
Standberry, 139 F. Supp. 3d 734, 740 (E.D. Va. 2015) (suggesting that Hobbs Act robbery is divisible because the
statute “provides two distinct methods by which the crime can be committed—robbery or extortion”).
35
See supra, Part II.B.
36
United States Sentencing Guidelines § 4B1.2 cmt. n. 1.
37
United States v. Lockley, 632 F.3d 1238, 1244 (11th Cir. 2011) (quoting United States v. Walker, 595
F.3d 441, 446 (2d Cir. 2010)); United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (explaining that
generic robbery “contain[s] at least the elements of misappropriation of property under circumstances involving

8
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 9 of 11

defines robbery as “the unlawful taking or obtaining of personal property from the person or in

the presence of another, against his will, by means of actual or threatened force, or violence, or

fear of injury, immediate or future, to his person or property.”38 Under this section, the taking of

property must be committed through the use of either force or intimidation, based on violence or

threats of violence to either the person or the person’s property. Therefore, the definition of

robbery under § 1951(b)(1) meets the definition of generic robbery.39

Defendant argues that although robbery is listed as an enumerated offense in the

Guideline Commentary, it is not a crime of violence because such an interpretation would be

inconsistent with the Guidelines. Defendant contends that in the wake of Johnson,40 the

Government must show that the offense incorporates physical force as an element, regardless of

whether the offense is enumerated in the Guideline commentary.41 Defendant cites United States

v. Soto-Rivera, a First Circuit post-Johnson decision that held that possession of a machine gun,

although listed as a crime of violence in the commentary, is not a crime of violence because the

offense does not incorporate physical force as an element.42 The court explained that after

Johnson and the removal of the residual clause, “[t]here is simply no mechanism or textual hook

[immediate] danger to the person”); Robbery, Black’s Law Dictionary (10th ed. 2014) (stating that robbery is “[t]he
illegal taking of property from the person of another, or in the person’s presence, by violence or intimidation;
aggravated larceny”) see United States v. Aguilar-Ramos, -- F. App’x --, No. 15-2096, 2016 WL 1599775 (10th Cir.
Apr. 21, 2016) (citing 67 Am. Jur. 2d, Robbery § 26) (“Any force, violence, or threat, no matter how slight, is
sufficient to sustain a robbery conviction if it . . . prevents or overcomes resistance to the property’s taking or
retention.”).
38
18 U.S.C. § 1951(b)(1).
39
See United States v. Farmer, 73 F.3d 836, 842 (8th Cir. 1996) (“[R]obbery is defined in § 1951, in terms
consistent with the traditional common-law definition, as the unlawful taking of personal property from the person
or in the presence of another by force or violence.”).
40
135 S. Ct. 2551 (2015).
41
Doc. 23 at 123.
42
811 F.3d 53, 60–62 (1st Cir. 2016).

9
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 10 of 11

in the Guideline that allows us to import offenses not specifically listed therein into

§ 4B1.2(a)’s definition of crime of violence.”43

The Court, however, is not convinced that Johnson requires each enumerated offense in

the Commentary to explicitly include physical force as an element. Application Note 1, which

lists additional offenses that qualify as crimes of violence, is authoritative unless it is inconsistent

with another guideline or violates a federal statute or the Constitution.44 Thus, robbery is

incorporated into § 4B1.2(a)(2) pursuant to the enumeration of offenses in that section.

Furthermore, the United States Sentencing Commission recently amended § 4B1.2(a)(2) to

include robbery, which suggests that the offenses listed in Application Note 1 serve as additional

enumerated offenses.45 At least two crimes enumerated in § 4B1.2(a)(2)—extortion and crimes

involving the use of explosives—arguably do not incorporate physical force as an element of the

offense. But Defendant does not argue that these offenses are not crimes of violence, and the

Court is not aware of any authority suggesting the same.46 Indeed, the Tenth Circuit has held,

post-Johnson, that an offense equating to generic extortion may qualify as a crime of violence

because that offense is enumerated in Commentary, notwithstanding that the offense does not

incorporate physical force as an element.47 The Court finds no reason to apply the physical force

clause to enumerated crimes in the wake of Johnson simply because the crimes are enumerated

43
Id.
44
United States v. Martinez, 602 F.3d 1166, 1173–74 (10th Cir. 2010) (“[C]ommentary issued by the
Sentencing Commission to interpret or explain a guideline is binding and authoritative unless it violates
theConsistution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”).
45
United States Sentencing Guidelines § 4B1.2(a)(2); see United States v. Mobley, 687 F.3d 625, 629 (4th
Cir. 2012) (citing United States v. Peterson, 629 F.3d 432 (4th Cir. 2011)) (explaining that the crimes listed in
Application Note 1 to the Commentary serve as additional enumerated offenses).
46
See United States v. Malloy, 614 F.3d 852, 857–59 (8th Cir. 2010) (holding that extortion is a crime of
violence because it is enumerated in § 4B1.2, even though commission of the crime does not require a threat of
bodily harm).
47
United States v. Castillo, 811 F.3d 342, 348–49 (10th Cir. 2015).

10
Case 2:15-cr-20079-JAR Document 27 Filed 08/15/16 Page 11 of 11

in the Commentary rather than in the text of § 4B1.2(a)(2). Therefore, the Court finds that

Defendant’s prior conviction for robbery under § 1951(b)(1) was for a crime of violence because

the definition of that offense meets the generic definition for robbery.48

IT IS THEREFORE ORDERED BY THE COURT that Defendant Darnell

O’Conner’s Objection Number One to the Presentence Investigation Report is overruled.

IT IS SO ORDERED.

Dated: August 15, 2016
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

48
The Government also argues that Defendant’s prior conviction for robbery under § 1951 was for a crime
of violence because that offense incorporates physical force as an element. Because the Court finds that robbery
under § 1951 is in accord with the generic definition of robbery, the Court does not reach the Government’s
additional argument.

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