Whether a crime that requires proof of bodily injury or death, but can be committed by omission, has as an element the use, attempted use, or threatened use of physical force

Questions Presented The career offender enhancement dramatically increases the sentences of defendants with certain instant and prior convictions. As relevant here, Middlebrooks was classified as a career offender based on his 1998 conviction for attempted second-degree murder under New York Penal Law §§ 110, 125.25(1), which was determined to be a crime of violence under U.S.S.G. §§ 4B1.1(a), 4B1.2.1. The text of § 4B1.2(a) defines the term “crime of violence” to mean an offense that “has an element the use, attempted use, or threatened use of physical force against the person of another” or “Ws murder, voluntary manslaughter, / kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).” | Commentary to that enhancement provides that a “crime of violence” includes inchoate offenses such as “aiding and abetting, conspiring, and attempting to commit such offenses.” This case presents two questions: The 2021 Guidelines Manual was used to determine Middlebrooks’s offense level. i a % 1. Whether a crime that requires proof of bodily injury or death, but can be committed by omission, has as an element the use, , attempted use, or threatened use of physical force. 2. Whether the inclusion of inchoate offenses within the commentary is inconsistent with the text of U.S.S.G. § 4B1.2 and, therefore, not legally binding. ll