Tennessee Conviction for Attempted Second-Degree Murder is a Crime of Violence under the Guidelines

        Tarrence Parham pleaded guilty in federal court to being a felon in possession of a firearm. (18 U.S.C. § 922(g)(1)). The district court overruled his objection to the PSR’s determination that his prior Tennessee conviction for attempted second-degree murder is a “crime of violence” under U.S.S.G. § 4B1.2(a). The ruling was affirmed. United States v. Parham, ---- F4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0237p-06.pdf,

The Sixth Circuit began by examining the Guidelines’ definition of a “crime of violence” and then considering the elements of Tennessee’s second-degree murder and attempt statutes as written at the time of conviction. The Court determined that “the elements of the least culpable form of attempted second-degree murder are: ‘(1) the defendant acted with the intent to unlawfully kill the alleged victim; and (2) the defendant’s conduct constituted a substantial step toward killing the alleged victim.’” Slip Op. at 6. The bottom line is whether the least culpable conduct constituting attempted second-degree murder “necessarily includes as an element the use, attempted use, or threatened use of physical force against another person.” Slip Op. at 7 (emphasis original). 

            The Court’s analysis was buttressed by a Tennessee case (State v. Reeves, 916 S.W.2d 909 (Tenn. 1996)) in which two middle school girls conspired to kill a teacher by poisoning her coffee. The evidence showed that the teacher saw the girls leaning over her desk. Upon being observed, the girls “ran back to their seats.” They left behind a purse containing rat poison next to the teacher’s coffee cup. Slip Op. at 7. The Tennessee Supreme Court upheld a conviction for attempted second-degree murder. It reasoned that the defendant took a “substantial step” toward committing the crime when she and the other girl “possessed material to commit the crime near the scene of the attempted crime.” Id. 

Mr. Parham argued that under United States v. Taylor, 596 U.S. 845 (2022), his attempted crime is not a crime of violence under the Guidelines because “taking a substantial step toward second-degree murder does not necessarily include the use, attempted use, or threatened use of physical force.” Slip Op. at 8. In rejecting that argument, the Sixth Circuit reasoned that possession of materials “capable of killing someone near the scene of the intended crime … along with conduct that makes possession of such materials strongly corroborative of the actor’s overall criminal purpose, communicates the intent to inflict harm, which constitutes the threatened use of force” and “an attempted use of force.” Id. For that reason, attempted second-degree murder is a crime of violence under the Guidelines. 

Mr. Parham also made facial and as-applied challenges to the constitutionality of § 922(g)(1) but those arguments were foreclosed by United States v. Williams, 113 F.4th 637 (6th Cir. 2024). The Sixth Circuit pointed out that the statute is constitutional in “most applications” “so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.” Slip Op. at 10 citing Williams at 657, 663. So, the door is still open to a successful as-applied challenge by a defendant who can show that he or she is not “actually dangerous.”