United States Court of Appeals

For the Eighth Circuit

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No. 15-3890

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Frank T. Scharschell

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: September 19, 2016

Filed: November 28, 2016

[Unpublished]

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

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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 court determined that Scharschell

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was a career offender pursuant to U.S.S.G. §§ 4B1.1 and 4B1.2 (Nov. 2015) and

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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. 

The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri. 

Scharschell was sentenced on November 17, 2015. All citations to the

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Guidelines are to the November 1, 2015 version, which was in effect at the time of

Scharschell’s sentencing. 

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Scharschell objected to the use ofthe 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 casewas 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” includesthe offenses of

aiding and abetting, conspiring, and attempting to commitsuch 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.

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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 assertsthat 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

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[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

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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. 

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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.”).

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Scharschell cites several cases in support of his argument that conspiracies to 3

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

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III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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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). 

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