                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3890
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                 Frank T. Scharschell

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: September 19, 2016
                             Filed: November 28, 2016
                                   [Unpublished]
                                   ____________

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
                             ____________

PER CURIAM.

       Frank Scharschell pleaded guilty pursuant to a plea agreement to possession
with intent to distribute five grams or more of methamphetamine (actual), in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court1 determined that Scharschell
was a career offender pursuant to U.S.S.G. §§ 4B1.1 and 4B1.2 (Nov. 2015)2 and
sentenced Scharschell to 188 months’ imprisonment. On appeal, Scharschell argues
that the Supreme Court’s invalidation of the residual clause of the Armed Career
Criminal Act (ACCA) eliminated his state conviction for conspiracy to commit
aggravated robbery as a crime-of-violence predicate offense. See Johnson v. United
States, 135 S. Ct. 2551 (2015). Upon review, we conclude that conspiracy to commit
aggravated robbery is still included within the Guidelines’ definition of “crime of
violence” and therefore affirm.

                                    I. Background
       Scharschell pleaded guilty pursuant to a plea agreement to possession with
intent to distribute five grams or more of methamphetamine (actual), in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B). Prior to sentencing, the probation office
prepared a presentence investigation report (PSR). The PSR designated Scharschell
as a career offender pursuant to U.S.S.G. § 4B1.1 based on two of his prior
convictions: (1) a 2006 conviction for robbery in Wyandotte County, Kansas District
Court, and (2) a 2011 conviction for conspiracy to commit aggravated robbery also
in Wyandotte County, Kansas District Court. The PSR described these offenses as
“two prior felony convictions of either a crime of violence or a controlled substance
offense.” Based on a total offense level of 31 and a criminal history category of VI
under § 4B1.1(b) for career-offender status, the PSR calculated a Guidelines range
of 188 to 235 months’ imprisonment.



      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
      2
      Scharschell was sentenced on November 17, 2015. All citations to the
Guidelines are to the November 1, 2015 version, which was in effect at the time of
Scharschell’s sentencing.

                                         -2-
       Scharschell objected to the use of the 2011 conspiracy conviction as a predicate
crime of violence. Scharschell argued that the Supreme Court’s Johnson decision,
which invalidated the ACCA’s residual clause, see 135 S. Ct. at 2557, also
invalidated the residual clause contained in the definition of “crime of violence” in
U.S.S.G. § 4B1.2. Scharschell reasoned that “[n]either conspiracy, nor aggravated
robbery, is an enumerated crime of violence under the guidelines.” He additionally
asserted that his Kansas conviction for “[c]onspiracy to commit aggravated robbery
does not require the ‘use, attempted use, or threatened use of physical force against
the person of another.’”

       In response, the government argued that Scharschell’s case was distinguishable
because “Application Note 1 to U.S.S.G. § 4B1.2 . . . states that for ‘purposes of the
guideline—“Crime of Violence” and “controlled substance” includes the offenses of
aiding and abetting, conspiring, and attempting to commit such offenses.’” According
to the government, Scharschell was “a career offender based on a conviction for an
offense specifically listed in the commentary to U.S.S.G. § 4B1.2, such as conspiracy
to commit a crime of violence.”

      At sentencing, the court adopted the government’s position and overruled
Scharschell’s objection to the use of the Kansas conspiracy conviction, stating:

      I believe that [the government’s] analysis of the application under the
      presentence report as being consistent with the guideline regulations is
      correct, and that the case law that speaks to the lack of specificity of the
      residual clause for determination of career offender is not the applicable
      or determining consideration, and that the guidelines do require the
      determination of Mr. Scharschell being designated as a career offender;
      therefore, I’m going to overrule your objection.

      The district court calculated a Guidelines range of 188 to 235 months’
imprisonment based on a total offense level of 31 and criminal history category of VI.

                                          -3-
After hearing arguments from counsel and considering the 18 U.S.C. § 3553(a)
factors, the court sentenced Scharschell to 188 months’ imprisonment.

                                    II. Discussion
       On appeal, Scharschell argues that the district court erred in calculating his
applicable Guidelines range because his Kansas conviction for conspiracy to commit
aggravated robbery is not a crime of violence under § 4B1.2. First, Scharschell
contends that the residual clause of § 4B1.2 is unconstitutionally vague and,
therefore, no longer valid. See Johnson, 135 S. Ct. at 2557. Second, he asserts that his
Kansas conviction for conspiracy to commit aggravated robbery is not a “force
clause” offense under § 4B1.2. According to Scharschell, conspiracy “does not
require direct participation on the crime”; therefore, one may “be convicted of
conspiracy to commit a robbery without ever engaging in the use or threatened use
of force.”

       The government concedes that “the residual clause of § 4B1.2(a)(2), like the
‘residual clause’ of the ACCA, is void for vagueness.” For purposes of this appeal,
we will assume without deciding that § 4B1.2(a)(2)’s residual clause is
unconstitutionally vague. Cf. United States v. Johnson, 641 F. App’x 654, 658 (8th
Cir. 2016) (unpublished per curiam) (“We agree that the government’s concession is
not conclusive, but . . . we will accept that concession for the sake of argument and
assume without deciding that, under Johnson, the district court’s application of the
Guidelines career-offender residual clause was plain error.”). Therefore, “we need not
reach the residual clause to resolve this case.” United States v. Rodriguez, 664 F.3d
1032, 1038 (6th Cir. 2011). Instead, we need only address whether Scharschell’s
conviction for conspiracy to commit aggravated robbery falls within the force clause
of § 4B1.2 and therefore qualifies as a crime of violence under § 4B1.1.

      Section 4B1.1(a) provides that



                                          -4-
      [a] defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

(Emphases added.) In turn, at the time of Scharschell’s sentencing, § 4B1.2(a) defined
“crime of violence” as

      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 [(“force
             clause”)], 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 [(“residual clause”)].

       At the time of Scharschell’s 2011 conviction, Kansas law defined “aggravated
robbery” as “a robbery . . . committed by a person who is armed with a dangerous
weapon or who inflicts bodily harm upon any person in the course of such robbery.”
State v. Brown, 331 P.3d 781, 793 (Kan. 2014) (ellipses in original) (quoting Kan.
Stat. Ann. § 21-3427). Additionally, “robbery” was defined as “the taking of property
from the person or presence of another by force or by threat of bodily harm to any
person.” Id. (quoting Kan. Stat. Ann. § 21-3426). Finally, “conspiracy” was defined
as

      an agreement with another person to commit a crime or to assist in
      committing a crime. No person may be convicted of a conspiracy unless

                                         -5-
      an overt act in furtherance of such conspiracy is alleged and proved to
      have been committed by such person or by a co-conspirator.

State v. Tapia, 287 P.3d 879, 883 (Kan. 2012) (emphasis omitted) (quoting Kan. Stat.
Ann. § 21-3302(a)).

       Scharschell has not challenged that “aggravated robbery,” as Kansas law
defines it, is a “crime of violence.” See U.S.S.G. § 4B1.2 cmt. n.1 (defining “crime
of violence” to include “robbery”); see also United States v. Brown, 550 F.3d 724,
729 (8th Cir. 2008) (“In this case, however, Brown’s conviction for aiding a felon in
the commission of an aggravated robbery has as an element ‘the use, attempted use,
or threatened use of physical force against the person of another.’” (quoting U.S.S.G.
§ 4B1.2(a)(1)) (first citing Kan. Stat. Ann. § 21-3426; and then citing U.S.S.G.
§ 4B1.2 cmt. n.1)). Thus, the question is whether conspiracy to commit such a crime
falls within the purview of § 4B1.2(a)(1)’s force clause and therefore constitutes a
“crime of violence” under § 4B1.1.

        Had this case arisen under 18 U.S.C. § 924(e), our analysis would be much
more complicated. See United States v. Ross, 613 F.3d 805, 808–09 (8th Cir. 2010)
(“[I]f this case arose under § 924(e), we likely would be required to address whether
violation of a statute that encompasses merely preparatory activity constitutes a
violent felony.”). But we can resolve this case “in a more straightforward manner.”
Id. at 809. This is because “the guidelines themselves say explicitly that ‘the
definitions of “violent felony” and “serious drug offense” in 18 U.S.C. § 924(e)(2)
are not identical to the definitions of “crime of violence” and “controlled substance
offense” used in § 4B1.1.’” Id. (quoting U.S.S.G. § 4B1.4 cmt. n.1). For that reason,
“separate analysis is necessary to ensure that there is no reason for a distinction”
between § 4B1.2 and § 924(e). Id.




                                         -6-
        Relevant to the present case, “[t]he sentencing guidelines include binding
commentary that is not applicable to § 924(e).” Id. (emphasis added) (citing United
States v. Carpenter, 11 F.3d 788, 791 (8th Cir. 1993)). Application Note 1 to § 4B1.2
expressly provides that “[f]or purposes of this guideline—‘Crime of violence’
. . . include[s] the offenses of aiding and abetting, conspiring, and attempting to
commit such offenses.” (Emphasis added.) “[W]e expect that the Sentencing
Commission meant to adopt a ‘generic, contemporary meaning’ of [‘conspiracy’] in
its commentary.” Ross, 613 F.3d at 809 (quoting Taylor v. United States, 495 U.S.
575, 598 (1990)). We also expect “[t]he contemporary meaning of” “conspiracy” to
include Kansas’s definition of “conspiracy,” see id., which closely aligns with that
of the Model Penal Code, see Model Penal Code § 5.03. “Thus, the guideline
commentary compels the conclusion that [conspiracy] to commit a crime of violence
in [Kansas] qualifies as a crime of violence under USSG § 4B1.2.” Ross, 613 F.3d at
809 (emphasis added) (citing Carpenter, 11 F.3d at 791); see also Rodriguez, 664
F.3d at 1038 (“Rodriguez’s conviction counts as a ‘crime of violence’ because
aggravated assault is one of the enumerated crimes of violence listed in Application
Note 1 to the career offender guideline and the offense requires knowing and
intentional conduct.”).3

      3
       Scharschell cites several cases in support of his argument that conspiracies to
commit violent crimes do not qualify under the force clause of § 4B1.2. See, e.g.,
United States v. Gonzalez–Ruiz, 794 F.3d 832, 833 (7th Cir. 2015) (granting
government’s motion to dismiss its cross-appeal in which it argued “that conspiracy
to commit armed robbery is a violent felony under the ‘residual clause’ of the ACCA”
after Johnson “held that the residual clause is unconstitutionally vague”); United
States v. Gore, 636 F.3d 728, 730 (5th Cir. 2011) (agreeing “that under Texas law,
a conviction for conspiracy to commit aggravated robbery does not have ‘as an
element the use, attempted use, or threatened use of physical force against the person
of another’” as provided in § 924(e)(2)(B)(i)); United States v. White, 571 F.3d 365,
369 (4th Cir. 2009), abrogated on other grounds by Johnson, 135 S. Ct. at 2560
(“Applying a categorical analysis to the Conspiracy Offense, we first observe that it
does not have ‘as an element the use, attempted use, or threatened use of physical


                                         -7-
                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




force against the person of another.’” (quoting 18 U.S.C. § 924(e)(2)(B)(i))). But each
of these cases dealt with a defendant who had been sentenced under § 924(e), not
U.S.S.G. §§ 4B1.1 and 4B1.2. As discussed supra, the crucial difference between
§ 924(e) and § 4B1.2 is that § 4B1.2 contains “binding commentary” that “crime of
violence” includes the offense of conspiracy. See Ross, 613 F.3d at 809.

       We acknowledge that we decided Ross prior to Johnson. But Scharschell “does
not mention [Ross] in his briefing on appeal and provides us no basis to depart from
that holding.” United States v. Morris, 641 F. App’x 457, 461 (6th Cir. 2016)
(unpublished), cert. denied, No. 15-9183, 2016 WL 2348264 (U.S. Oct. 3, 2016)
(declining to overrule Rodriguez).


                                         -8-
