U.S.S.G. § 4B1.2(d) Makes Attempts “Crimes of Violence” Whenever the Completed Offense Qualifies

1. Introduction

United States v. Joseph Ott (11th Cir. Jan. 29, 2026) addresses a recurrent post-categorical-approach question: when the Sentencing Guidelines require determining whether a prior conviction is a “crime of violence” for the career offender enhancement, does an attempt to commit a qualifying violent crime itself qualify?

The defendant, Joseph Lamonte Ott, pleaded guilty in federal court to armed bank robbery under 18 U.S.C. § 2113(a) & (d) after a robbery in Wellington, Florida. His guideline range was enhanced because the probation office and district court classified him as a career offender under U.S.S.G. § 4B1.1(a), relying in part on a prior New York conviction for attempted second-degree robbery. Ott argued that an attempt offense should not be treated as a “crime of violence” under U.S.S.G. § 4B1.2(a), especially in light of the Supreme Court’s analysis of attempt offenses in United States v. Taylor.

The Eleventh Circuit affirmed, holding that the Sentencing Commission’s 2023 amendment (Amendment 822) resolves the issue for guideline purposes: once the completed offense qualifies, its attempt qualifies as well.

2. Summary of the Opinion

The court held that:

  • Under Eleventh Circuit precedent, New York robbery (including second-degree robbery) qualifies as a violent predicate under the elements clause (and thus as a “crime of violence” under the Guidelines).
  • Under the 2023 guideline amendment codified at U.S.S.G. § 4B1.2(d), the terms “crime of violence” and “controlled substance offense” include attempting to commit any such offense.
  • Therefore, attempted New York robbery is a “crime of violence” for career-offender purposes without re-running a Taylor-style element-by-element analysis of “attempt” itself.

The court rejected Ott’s argument that § 4B1.2(d) applies only to the enumerated-offenses clause (and not the elements clause), finding nothing in the guideline’s structure or text supporting that limitation.

3. Analysis

3.1. Precedents Cited

The opinion is built on two pillars: (1) categorical-approach doctrine and (2) the guideline-text shift effected by Amendment 822. The cited cases situate both pillars.

A. Standards of review and framework

  • United States v. Hicks and United States v. Pridgeon (with United States v. Brooks) supply the appellate posture: guideline interpretation and career-offender classification are reviewed de novo. This matters because the court treats the dispute as a pure question of guideline meaning, not sentencing discretion.
  • United States v. Harrison and Parker v. United States are cited to confirm that the categorical approach governs predicate-offense determinations across multiple federal contexts (ACCA, Guidelines, immigration), underscoring that the method is mandatory rather than optional.
  • United States v. Eason provides the key categorical-approach formulation used here: courts presume conviction on the “least of the acts criminalized” and ask whether that minimum conduct satisfies the relevant definition.
  • United States v. Lopez and United States v. Rowe are used illustratively to show the categorical approach’s breadth (moral turpitude; generic-offense matching), reinforcing the court’s framing that the approach is “the beginning of the process” even if a guideline provision later changes the endpoint.

B. Attempt offenses after Taylor, and why the Guidelines diverge

  • United States v. Taylor held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A) because the attempt offense does not necessarily require proof that the defendant used, attempted to use, or threatened to use force. Ott relied on Taylor’s logic to argue that attempt crimes often fail the “elements clause” inquiry.
  • The Eleventh Circuit distinguishes Taylor not by disputing its reasoning, but by emphasizing a textual difference: unlike § 924(c), the Guidelines now have an express inchoate-inclusion provision—U.S.S.G. § 4B1.2(d). That provision makes Taylor’s attempt-elements analysis unnecessary in the guideline context once the completed offense qualifies.

C. The commentary-deference conflict and the move from commentary to text

A central institutional backdrop is the Commission’s response to disputes about the legal force of guideline commentary.

  • Stinson v. United States is the starting point: historically, many courts treated guideline commentary as authoritative.
  • The opinion notes that several circuits later rejected commentary that expands unambiguous guideline text, citing United States v. Dupree (11th Cir. en banc), United States v. Campbell, United States v. Nasir (en banc), United States v. Havis (en banc), and United States v. Winstead. These cases collectively reflect a shift toward limiting commentary to interpretation rather than expansion.
  • Kisor v. Wilkie supplies the modern interpretive principle: deference is inappropriate unless the text is genuinely ambiguous. The opinion notes courts applying Kisor to guidelines to conclude that commentary cannot add inchoate offenses where the guideline text does not.
  • United States v. Abreu is cited as an example of courts refusing to extend “crime of violence” to conspiracies via commentary alone.

Against that backdrop, the court treats Amendment 822 as decisive: the Commission moved the inchoate-offense language “without change” from commentary into the guideline text, codifying it at U.S.S.G. § 4B1.2(d) and thereby eliminating the Kisor/Stinson controversy for this issue.

D. Why New York robbery qualifies, and why that settles Ott’s case

  • Gilbert v. United States provides the bridge rule: because the elements clauses in ACCA and the Guidelines are “virtually identical,” Eleventh Circuit decisions interpreting one apply to the other.
  • United States v. Sanchez is the key substantive precedent: it held that New York robbery satisfies ACCA’s elements clause and is a violent felony because the “core crime” is “forcibly stealing property.”
  • People v. Miller is cited (via Sanchez) as New York authority defining robbery’s core as “forcibly stealing property,” grounding the federal classification in the state offense’s elements.

Once Sanchez and Gilbert establish that New York robbery is a guideline “crime of violence,” § 4B1.2(d) supplies the final step: the attempt to commit that crime is included.

E. Textualism and structural arguments

  • United States v. Fulford supports the court’s plain-language approach: when guideline language is unambiguous, courts presume the Commission “said what it meant.”
  • United States v. Mandhai is invoked for the proposition that if drafters intended a limitation, “they knew how to say so,” supporting rejection of Ott’s claim that § 4B1.2(d) applies only to the enumerated clause.
  • United States v. Pompey supplies the “absurd results” safety valve standard. The court rejects Ott’s “attempt-on-attempt” concern as insufficiently extraordinary and, in any event, not clearly contrary to Commission intent (as reflected in Amendment 822).

3.2. Legal Reasoning

  1. Step 1 (categorical approach applied to the completed offense): The court treats the categorical approach as still operative, but focuses it on determining whether the substantive offense attempted is a “crime of violence.” Under United States v. Sanchez, New York robbery qualifies under the elements clause.
  2. Step 2 (textual inclusion of attempt): With Amendment 822 codified, U.S.S.G. § 4B1.2(d) expressly states that “crime of violence” includes “attempting to commit” such an offense. The court reads this as a direct instruction: if the completed crime qualifies, its attempt qualifies—“no further inquiry is necessary.”
  3. Step 3 (rejecting clause-splitting): Ott’s argument that § 4B1.2(d) modifies only the enumerated clause fails on text and structure. Section 4B1.2(a) defines “crime of violence” via two alternative routes (elements or enumerated offenses); § 4B1.2(d) then states that the term “crime of violence” includes attempts. The court finds no textual basis to confine that inclusion to only one route.
  4. Step 4 (distinguishing Taylor): Taylor is treated as inapplicable because it interpreted a statute without an analog to § 4B1.2(d). The Commission’s explicit inclusion of inchoate offenses changes the analysis for guideline purposes.

3.3. Impact

The decision’s practical effect is to make the Eleventh Circuit’s approach to guideline “attempt” predicates straightforward after Amendment 822:

  • Litigation shift: Post-amendment, defendants challenging attempt predicates will more often be forced to attack whether the completed offense qualifies, rather than arguing (à la Taylor) that attempt lacks a force element.
  • Reduced commentary-deference disputes: By relying on guideline text rather than commentary, the court avoids Kisor/Stinson fights that animated cases like United States v. Dupree.
  • Broader career-offender exposure: Attempt convictions—common plea outcomes—will more readily serve as career-offender predicates so long as the underlying substantive offense is a crime of violence (or controlled substance offense) under the relevant guideline definition.
  • Open question flagged: The court leaves for another day whether § 4B1.2(d) could generate hard cases involving “attempt on top of attempt” or attempt offenses whose underlying definition already includes “attempted use of force.” That reservation signals potential future boundary litigation, but not in ordinary attempt-of-robbery cases like Ott’s.

4. Complex Concepts Simplified

  • Categorical approach: A method that looks at the legal elements of the prior conviction—not what the defendant actually did. Courts ask whether the least serious conduct that could satisfy the statute still meets the federal definition (here, “crime of violence”).
  • Elements clause vs. enumerated offenses clause (U.S.S.G. § 4B1.2(a)): The elements clause covers offenses that require “the use, attempted use, or threatened use of physical force.” The enumerated clause covers a list of specified crimes. Either route can qualify an offense.
  • Inchoate offenses: “Incomplete” crimes such as attempt, conspiracy, and aiding and abetting. They focus on steps toward committing a crime or agreements to do so.
  • Guideline commentary vs. guideline text: Commentary explains guidelines, but after cases applying Kisor v. Wilkie, commentary generally cannot expand an unambiguous guideline. Amendment 822 matters because it puts the inchoate-offense rule into the guideline text itself at § 4B1.2(d).
  • Why Taylor doesn’t control here: United States v. Taylor interpreted a statute defining “crime of violence” without an explicit “attempts count” provision. The Guidelines now explicitly say attempts count, so the analysis changes.

5. Conclusion

United States v. Joseph Ott cements a post-Amendment 822 rule in the Eleventh Circuit: under U.S.S.G. § 4B1.2(d), attempting to commit a qualifying “crime of violence” is itself a “crime of violence,” and courts need only apply the categorical approach to the completed offense to decide the attempt’s status. With United States v. Sanchez already establishing that New York robbery is violent under the elements clause (and, via Gilbert v. United States, under the Guidelines), Ott’s attempted robbery conviction properly triggered the career-offender enhancement. The opinion’s broader significance lies in its confirmation that the Commission’s move from commentary to text meaningfully alters—and simplifies—the inchoate-offense inquiry for guideline sentencing going forward.