Virginia Firearm Use During Robbery Is a Guidelines Crime of Violence; Drug-Trafficking Conspiracy Remains a Controlled Substance Offense in the First Circuit

Introduction

In United States v. Mao, the First Circuit affirmed a 121-month federal sentence imposed on Michael Mao after he pleaded guilty to conspiracy to distribute controlled substances and conspiracy to commit money laundering. Mao’s offenses arose from a drug-distribution scheme inside Buckingham Correctional Center in Virginia, where he was incarcerated.

The principal issue on appeal was whether Mao was properly classified as a career offender under U.S.S.G. § 4B1.1. Mao challenged that classification on two grounds: first, that his prior Virginia conviction for using or displaying a firearm during a robbery was not a “crime of violence”; and second, that his current conviction for conspiracy to distribute drugs was not a “controlled substance offense.”

Summary of the Opinion

The First Circuit rejected both arguments and affirmed Mao’s sentence. The court held that a conviction under Va. Code Ann. § 18.2-53.1 for using or displaying a firearm while committing robbery qualifies as a “crime of violence” under the Sentencing Guidelines.

The court reached that conclusion under both the enumerated offenses clause and the force clause of U.S.S.G. § 4B1.2(a). It reasoned that using or threatening to display a firearm during a robbery categorically matches generic robbery and necessarily involves the use, attempted use, or threatened use of physical force against another person.

The court also held that Mao’s drug-trafficking conspiracy conviction remains a “controlled substance offense” under First Circuit precedent. Although other circuits have disagreed, the First Circuit concluded that the law-of-the-circuit doctrine foreclosed Mao’s argument and that there was no reason to depart from existing precedent.

Analysis

Precedents Cited

Sentencing record and standard of review

The court relied on United States v. Tang and United States v. De La Cruz for the principle that, after a guilty plea, appellate courts draw facts from the plea colloquy, the presentence investigation report, and the sentencing record. It also cited United States v. Almenas and United States v. Santos for the rule that whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.1 is reviewed de novo.

Categorical and modified categorical approach

The court applied the modified categorical approach because Va. Code Ann. § 18.2-53.1 lists alternative predicate offenses. It cited United States v. Fish and Descamps v. United States for the divisibility principle, and Villanueva v. Holder for the rule permitting courts to examine limited conviction documents to identify the specific statutory alternative of conviction.

Here, the relevant alternative was use or display of a firearm while committing robbery. That narrowed the analysis and undermined Mao’s effort to rely on broader hypotheticals involving other forms of robbery or firearm use.

Crime of violence and robbery precedents

The court cited United States v. Frates to distinguish the Guidelines’ “force clause” from the “enumerated offenses clause.” It then relied on United States v. Rabb and United States v. Benítez-Beltrán to explain that a prior offense qualifies under the enumerated clause if it is no broader than the generic version of the listed offense. Under Taylor v. United States, the court compared the elements of the state offense to generic robbery.

The court also discussed Virginia robbery law through United States v. Williams, Durham v. Commonwealth, and Jones v. Commonwealth. These cases define Virginia common-law robbery as a taking from the person or presence of another, against the victim’s will, by violence or intimidation. Because intimidation under Virginia law involves placing the victim in fear of bodily harm, the addition of firearm use made the offense violent for Guidelines purposes.

Distinguishing contrary robbery arguments

Mao relied heavily on United States v. Parham, where the Fourth Circuit held that Virginia robbery can be broader than generic robbery when committed by threatening to accuse the victim of sodomy. The First Circuit distinguished that case because Mao’s conviction was not for simple Virginia robbery; it was for using or displaying a firearm during robbery. That firearm element supplied the immediate threat of physical force that was missing in the sodomy-accusation scenario.

The court also cited United States v. Alexander, an Eastern District of Virginia decision observing that a robbery committed only through the constructive force described in United States v. Parham, while also involving firearm use under Va. Code Ann. § 18.2-53.1, would be virtually nonexistent. United States v. Willings and United States v. Richards supported the court’s use of Armed Career Criminal Act “violent felony” reasoning to inform the Guidelines “crime of violence” analysis.

Mao also invoked Breeden v. Commonwealth to argue that a threat of self-harm could satisfy Virginia intimidation. The court rejected that analogy because the case involved both threats and force against the complaining witness and did not involve robbery as the predicate offense.

Controlled substance offense and inchoate crimes

On the drug-conspiracy issue, the First Circuit relied on United States v. Nieves-Díaz and United States v. Rodríguez-Rivera, which hold that “controlled substance offense” under the Guidelines includes inchoate offenses such as conspiracy. Those cases rely on Application Note 1 to U.S.S.G. § 4B1.2.

The court applied the law-of-the-circuit doctrine through United States v. Wurie, San Juan Cable LLC v. P.R. Tel. Co., and Lassend v. United States. Those cases establish that a panel is bound by prior circuit precedent unless later controlling authority contradicts it or intervening developments strongly indicate the earlier panel would change its view.

Mao pointed to disagreement from other circuits, particularly United States v. Campbell, but the First Circuit cited United States v. Gerrish for the proposition that a panel may not overrule binding circuit precedent merely to resolve a circuit split. The court also noted other circuit decisions, including United States v. Vargas, United States v. Maloid, and United States v. Dupree, showing that the national landscape remains divided.

Agency-deference and commentary precedents

Mao argued that Loper Bright Enterprises v. Raimondo, United States v. Davis, and Kisor v. Wilkie weakened deference to Sentencing Guidelines commentary. The First Circuit disagreed. It relied on United States v. Lewis, which had already rejected the argument that Kisor v. Wilkie required overturning First Circuit precedent on Application Note 1.

The court also cited Stinson v. United States, which treats Guidelines commentary as akin to an agency’s interpretation of its own rules, and United States v. Piper, which had upheld the inclusion of inchoate offenses in Application Note 1. Finally, the court discussed interpretive principles from United States v. Castillo, Barnhart v. Peabody Coal Co., United States v. Vonn, and United States v. Richardson in evaluating whether the text of § 4B1.2(b) excludes conspiracy offenses.

Legal Reasoning

1. The Virginia firearm-robbery conviction qualifies as a crime of violence

The court treated Va. Code Ann. § 18.2-53.1 as divisible because it applies to firearm use during multiple predicate crimes. Once the record established that Mao’s predicate offense was robbery, the court asked whether firearm use during robbery is categorically a crime of violence.

Under the enumerated offenses clause, the offense matched generic robbery because robbery requires force or intimidation creating immediate danger to a person. A firearm used or displayed during robbery necessarily intensifies that threat.

Under the force clause, the offense also qualified because Virginia robbery requires violence or intimidation, and the firearm statute requires use, attempted use, or threatening display of a firearm while committing that robbery. Together, those elements necessarily involve physical force or the threatened use of physical force against another person.

2. Mao’s hypotheticals did not create a realistic overbreadth problem

Mao proposed hypothetical scenarios in which a firearm might be used without threatening the victim, such as using a gun to break a lock after the robbery. The court rejected these hypotheticals because the firearm use must occur “while” committing the robbery and must satisfy the statutory requirement of use or threatening display. The court found no realistic basis to conclude that the Virginia offense covers nonviolent conduct in the relevant robbery context.

3. Drug-trafficking conspiracy remains a controlled substance offense

The First Circuit held that Mao’s second argument was foreclosed by binding precedent. Application Note 1 to U.S.S.G. § 4B1.2 includes aiding and abetting, conspiracy, and attempt. The First Circuit has repeatedly treated that commentary as authoritative for pre-2023 Guidelines cases.

Even if the court revisited the issue, it stated it would not change course. The court reasoned that the text of § 4B1.2(b) is silent rather than inconsistent with Application Note 1. It also found that the structure, history, and purpose of the Guidelines support treating conspiracy as a controlled substance offense.

Impact

This decision has two important effects. First, it clarifies that, in the First Circuit, a Virginia conviction for using or displaying a firearm during robbery under Va. Code Ann. § 18.2-53.1 qualifies as a Guidelines crime of violence. Defendants with similar Virginia convictions will face difficulty avoiding career-offender treatment.

Second, the opinion reinforces the First Circuit’s position that drug-trafficking conspiracies qualify as controlled substance offenses under the pre-2023 Sentencing Guidelines. The court acknowledged the circuit split but declined to deepen it or abandon its existing precedent.

More broadly, the opinion demonstrates the continued force of the law-of-the-circuit doctrine in federal sentencing. Unless the Supreme Court or an en banc First Circuit decision intervenes, panels remain bound by existing circuit precedent even where other circuits have adopted contrary reasoning.

Complex Concepts Simplified

Career offender: A Guidelines classification that significantly increases sentencing ranges for defendants who are adults, commit a felony crime of violence or controlled substance offense, and have at least two qualifying prior felony convictions.
Crime of violence: An offense that either requires violent force as an element or falls within listed violent crimes such as robbery.
Force clause: The part of the Guidelines definition covering crimes that require the use, attempted use, or threatened use of physical force.
Enumerated offenses clause: The part of the Guidelines definition listing specific crimes, such as robbery, that qualify as crimes of violence.
Categorical approach: A method where courts compare the legal elements of the prior offense to the generic federal definition, rather than examining the defendant’s actual conduct.
Modified categorical approach: A limited version of the categorical approach used when a statute lists alternative crimes; courts may consult certain records to identify which alternative formed the conviction.
Inchoate offense: An incomplete or preparatory crime, such as attempt or conspiracy.
Law-of-the-circuit doctrine: The rule that one panel of a circuit court must follow prior published circuit precedent unless a narrow exception applies.

Conclusion

United States v. Mao affirms a robust application of the career-offender guideline. The First Circuit held that using or displaying a firearm during a Virginia robbery is a crime of violence and reaffirmed that drug-distribution conspiracy is a controlled substance offense under First Circuit law.

The decision is significant because it both clarifies the treatment of a specific Virginia firearm-robbery conviction and reinforces the First Circuit’s adherence to its existing Guidelines precedent despite disagreement among other circuits.