In U.S. v. Whitson, No. 09-10521 (Feb. 24, 2010), applying Begay v. U.S., the Court held that a prior conviction for a non-overt act conspiracy was not a “crime of violence” for purposes of Career Offender eligibility under USSG § 4B1.1
The Court noted that the South Carolina conspiracy statute under which Whitson was previously convicted does not require an overt act. Further, the “agreement” that constitutes a conspiracy is not, without more, violent or aggressive. The Court rejected the Fourth Circuit’s contrary holding that a conspiracy cannot be divorced from its violent objective, and that a conspiracy increases the likelihood of violence. The Court held that Begay requires looking at the conspiracy “alone” to determine whether the conspiracy was “violent.” “Seeing no violence or aggression in the act of agreement,” the Court concluded that it did not qualify as a “crime of violence.”
