After Delligatti, VICAR Attempted Murder Categorically Supports §924(c) “Crime of Violence”; Stipulated §2K2.1(b)(6)(B) Enhancements Are Effectively Unreviewable

Introduction

In United States v. Crisler, No. 22-2688 (2d Cir. Sept. 29, 2025) (summary order), the Second Circuit affirmed the conviction and sentence of Jarrett Crisler, Jr., a leader of a Florida street gang, who pleaded guilty to (1) using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c), and (2) conspiring to traffic firearms, in violation of 18 U.S.C. § 371. The district court (S.D.N.Y., Judge Philip M. Halpern) sentenced Crisler to 207 months’ imprisonment and three years’ supervised release.

On appeal, Crisler raised two principal issues:

Whether the district court erred by accepting his guilty plea to the § 924(c) count because the predicate violent-crime-in-aid-of-racketeering (VICAR) offense—predicated on Florida attempted murder and aggravated battery with a deadly weapon—allegedly did not qualify as a “crime of violence” under § 924(c)(3)(A).
Whether the district court erred by applying the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) to the firearms trafficking count on a theory that it double-counted the same conduct underlying the § 924(c) charge.

The Second Circuit’s order resolves both issues against the defendant. First, in light of binding authority—most notably the Supreme Court’s 2025 decision in Delligatti v. United States and the Second Circuit’s 2023 decision in United States v. Pastore—the court concluded that attempted murder in aid of racketeering is categorically a “crime of violence” for § 924(c) purposes. Second, the court held that Crisler’s repeated stipulations and concessions in his plea agreement, sentencing submission, and failure to object to the presentence report (PSR) relinquished any challenge to the § 2K2.1(b)(6)(B) enhancement, and, independently, that the record supported the enhancement even under plain-error review.

Although issued as a nonprecedential summary order, Crisler is a clear application of two important strands of federal criminal law: (1) the post-Delligatti treatment of attempted murder (including VICAR attempted murder) as a categorical § 924(c) “crime of violence,” and (2) the strong doctrinal barriers to appellate review of sentencing enhancements that a defendant has strategically stipulated to as part of a negotiated plea.

Summary of the Opinion

The court affirmed on both grounds:

Section 924(c): The panel held that any argument that VICAR attempted murder is not a “crime of violence” is foreclosed by Second Circuit precedent (Pastore) and, now definitively, by the Supreme Court’s decision in Delligatti. Even if preservation or waiver were debatable, the claim fails on the merits.
Guidelines enhancement: The court determined that Crisler expressly stipulated to the four-level enhancement under § 2K2.1(b)(6)(B) and repeatedly conceded its applicability, thereby relinquishing any appellate challenge (invited error/waiver). In any event, the district court made independent factual findings—adopting the PSR and describing how Crisler armed fellow gang members with assault-style weapons and silencers for months—that supported the enhancement because he possessed or transferred firearms with reason to believe they would be used in other felonies.

The judgment of the district court was affirmed in full.

Analysis

Precedents Cited and Their Influence

Lebowitz v. United States, 877 F.2d 207 (2d Cir. 1989): Establishes the settled rule that a knowing and voluntary guilty plea waives all nonjurisdictional defects. The panel noted the parties’ extensive debate over waiver but found the point largely moot because intervening authority (Pastore and Delligatti) disposes of the merits of the § 924(c) argument. Lebowitz frames the waiver backdrop but does not drive the result.
United States v. Dussard, 967 F.3d 149 (2d Cir. 2020): Articulates the plain-error framework. Because Crisler did not raise his § 924(c) argument below, the court reviewed for plain error, a mode of analysis that demands an error be clear or obvious and affect substantial rights. The court relied on Dussard to set the standard, but then found no error at all in light of governing precedent.
United States v. Pastore, 83 F.4th 113 (2d Cir. 2023): Held that VICAR attempted murder is a § 924(c) “crime of violence.” The panel highlighted that Crisler conceded as much under Pastore, rendering his challenge untenable within the Circuit even before the Supreme Court weighed in.
Delligatti v. United States, 145 S. Ct. 797 (2025): The Supreme Court “clarified” that although murder might be committed by omission of a legal duty, attempted murder still qualifies as a § 924(c) “crime of violence.” This removes any residual doubt generated by the theoretical possibility of omission-based homicides, answering a question that had divided litigants post-Taylor. The Second Circuit relied squarely on Delligatti to reject Crisler’s argument on the merits.
United States v. DeJesus-Concepcion, 607 F.3d 303 (2d Cir. 2010) and United States v. Jackson, 346 F.3d 22 (2d Cir. 2003): Stand for the proposition that when a defendant affirmatively represents to the district court that a sentencing enhancement applies, he relinquishes the ability to challenge that enhancement on appeal—an invited-error or waiver rule designed to prevent sandbagging.
United States v. Quinones, 511 F.3d 289 (2d Cir. 2007): Clarifies that a defendant’s tactical choice to stipulate to an enhancement to obtain a benefit (e.g., dismissal of counts) “negates even plain error review.” The panel applied Quinones to bar Crisler’s post hoc double-counting challenge because he stipulated to the § 2K2.1(b)(6)(B) enhancement to secure the dismissal of five open counts.
United States v. Esteras, 102 F.4th 98 (2d Cir. 2024): Confirms that when the PSR’s facts support an enhancement and are adopted by the sentencing court, any alleged error is “far from plain.” The panel relied on Esteras to bolster the conclusion that, even absent waiver, the record independently supported the § 2K2.1(b)(6)(B) enhancement because Crisler armed other gang members for violent and drug-trafficking felonies.

Legal Reasoning

The court organized its reasoning issue-by-issue:

Section 924(c) predicate—VICAR attempted murder is a “crime of violence.”
- Framework: Section 924(c)(3)(A) defines “crime of violence” as a felony that “has as an element the use, attempted use, or threatened use of physical force.” The categorical approach asks whether the elements of the predicate offense satisfy this definition.
- Application: Crisler’s § 924(c) conviction was predicated on VICAR (18 U.S.C. § 1959(a)) based on Florida attempted murder and aggravated battery with a deadly weapon. The panel observed that Pastore had already held VICAR attempted murder to be a “crime of violence,” and Delligatti has since confirmed that attempted murder categorically satisfies § 924(c)(3)(A) even if completed murder could be committed by omission. The key logic is that attempt liability requires a specific intent to bring about death and a substantial step toward that violent end, which necessarily entails the attempted use of physical force as § 924(c) uses that term.
- Result: Under Pastore and Delligatti, Crisler’s legal challenge fails on the merits. Whether waived or forfeited, there is no error—let alone plain error— in accepting the § 924(c) plea.
Sentencing—four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B).
- Text: Section 2K2.1(b)(6)(B) applies where the defendant “used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.”
- Waiver/Invited Error: The court emphasized multiple, unequivocal concessions by Crisler: (a) he stipulated in his plea agreement to the enhancement; (b) he reiterated in his sentencing submission that it applied; and (c) he did not object when the PSR included it. Under DeJesus-Concepcion, Jackson, and Quinones, those strategic choices relinquish any later challenge, including under plain-error review, particularly where the stipulation was part of a negotiated package that yielded the dismissal of five counts and materially reduced sentencing exposure.
- Independent support: Even assuming review, the enhancement stands. The district court adopted the PSR and found that for at least eleven months Crisler armed fellow gang members and leaders with assault-rifle-style weapons and firearms equipped with silencers, facilitating violent crimes and drug trafficking. The PSR chronicled serious downstream offenses committed by those he armed, including murder, attempted murders, armed robberies, and a brutal slashing. Those findings satisfy the “possessed or transferred with reason to believe” prong of § 2K2.1(b)(6)(B), independently of the nightclub shooting that underlies the § 924(c) count. That separate factual basis defeats the double-counting claim and, in any event, renders any supposed error far from plain (Esteras).

Impact

Clarifying the § 924(c) landscape post-Delligatti: Although a nonprecedential order, Crisler illustrates that challenges to § 924(c) convictions predicated on attempted murder—whether charged as VICAR or otherwise—are untenable after Delligatti and Pastore. This will streamline litigation by reducing motions to hold appeals in abeyance and foreclosing collateral attacks premised on attempt-versus-completion distinctions in homicide offenses.
Strategic stipulations and sentencing finality: The decision reinforces a practical but powerful principle: defendants who stipulate to Guidelines enhancements as part of negotiated pleas will be hard-pressed to undo those stipulations on appeal. The combination of invited-error doctrine, failure to object to the PSR, and independent factual support will often prove fatal to later double-counting or sufficiency challenges.
Guidance for district courts: Crisler affirms that detailed adoption of PSR findings—especially those documenting how transferred firearms predictably facilitated other felonies—provides a strong, review-proof basis for § 2K2.1(b)(6)(B) enhancements, even where a defendant also stands convicted under § 924(c) for distinct conduct.
Limits of the ruling: Because this is a summary order, it carries no precedential effect under the Second Circuit’s local rules. Its practical importance lies in its faithful application of Delligatti and established waiver/invited-error doctrine rather than in breaking new doctrinal ground.

Complex Concepts Simplified

Crime of Violence (CoV) and the “elements clause”: Section 924(c)(3)(A) looks only to the elements of the predicate offense, not to the facts of what happened. If the statutory elements require the use, attempted use, or threatened use of force, the offense is a CoV. After Delligatti, attempted murder fits because attempt requires intent to kill plus a substantial step directed toward that violent result.
VICAR (18 U.S.C. § 1959): Criminalizes violent crimes committed to gain entrance to, maintain, or increase position in a racketeering enterprise. Here, the VICAR offense was itself predicated on Florida state offenses (attempted murder and aggravated battery with a deadly weapon).
Plain-error review: An appellate standard for issues not raised below. The defendant must show (1) error, (2) that is clear or obvious, (3) affecting substantial rights, and (4) warranting correction because it seriously affects the fairness, integrity, or public reputation of judicial proceedings. If intervening Supreme Court or Circuit authority shows there is no error, the analysis stops at step one.
Waiver vs. forfeiture vs. invited error:
- Forfeiture: Failure to assert a right in time. Forfeited issues may receive plain-error review.
- Waiver: The intentional relinquishment of a known right, often through stipulation or concession. Waived issues are not reviewable.
- Invited error: A species of waiver—if a party induces or agrees to an action at sentencing (e.g., stipulates an enhancement applies), it cannot later claim that was error.
U.S.S.G. § 2K2.1(b)(6)(B): A four-level enhancement in firearms cases if the defendant used/possessed a firearm in connection with another felony, or possessed/transferred a firearm with knowledge, intent, or reason to believe it would be used or possessed in connection with another felony. Critically, the enhancement can rest on facilitating others’ felonies—e.g., disseminating guns to co-conspirators whose violent use is reasonably anticipated.
PSR adoption: When a defendant does not object to factual statements in the presentence report and the court adopts them, those facts may support enhancements on appeal. This is why failure to object at sentencing matters.
Double counting: The Guidelines generally disfavor punishing the exact same aspect of conduct twice. But where separate enhancements address distinct harms or where the enhancement rests on different conduct (as here: arming others for felonies versus the specific nightclub shooting underlying § 924(c)), the claim of impermissible double counting fails.

Conclusion

United States v. Crisler is a straightforward, if significant, application of controlling law. On the § 924(c) issue, the decision leaves no daylight: after Delligatti and Pastore, attempted murder in aid of racketeering categorically qualifies as a “crime of violence” under § 924(c)’s elements clause, regardless of theoretical omission-based modes of committing completed murder. On sentencing, the case underscores the consequences of strategic stipulations. By stipulating to and repeatedly endorsing the § 2K2.1(b)(6)(B) enhancement—and by failing to object to the PSR—Crisler relinquished appellate review. In any event, the district court’s independent factual findings that he armed gang members for violent and drug-trafficking felonies provided a solid alternative ground for the enhancement.

While nonprecedential, Crisler’s reasoning is instructive. It aligns the Second Circuit’s day-to-day adjudication with the Supreme Court’s guidance on § 924(c), and it reinforces the importance of careful, deliberate plea bargaining—particularly where Guidelines stipulations can later foreclose appellate challenges. The key takeaway for litigants and courts alike is twofold: attempted murder predicates remain firm footing for § 924(c) charges, and stipulations to § 2K2.1(b)(6)(B) will stand when the record independently supports the inference that firearms were transferred with reason to believe they would be used in other felonies.