A published Fourth Circuit decision handed down in May 2026 has significant consequences for federal defendants with prior Virginia convictions under the state’s firearm-use-during-a-felony statute. In United States v. Scott, No. 25-4048 (4th Cir. May 22, 2026), the court vacated a 33-month sentence and remanded for resentencing after holding that a conviction under Virginia Code § 18.2-53.1—using a firearm while committing robbery—does not qualify as a “crime of violence” under the Federal Sentencing Guidelines. The decision matters for any person facing sentencing in federal court who carries a prior Virginia conviction under that statute, and it reflects broader trends in how federal courts apply the categorical approach to state criminal records.
What the Guidelines Say About “Crime of Violence”
Under U.S.S.G. § 2K2.1(a)(4)(A), a defendant convicted of being a felon in possession of a firearm faces a significantly higher base offense level—20 instead of 14—if he previously sustained a felony conviction for a “crime of violence.” That term is defined in two ways under § 4B1.2(a). The elements clause covers offenses that have as an element “the use, attempted use, or threatened use of physical force against the person of another.” The enumerated offense clause covers a list of named crimes, including robbery. When a crime-of-violence enhancement applies, it can add years to an advisory Guidelines range. In Scott’s case, the enhancement raised his range from 15–21 months to 30–37 months—a difference of roughly a year and a half at the low end.
Virginia Code § 18.2-53.1 and the Categorical Approach
Raquan Scott had a 2008 Virginia conviction for violating § 18.2-53.1, which makes it a felony to use, attempt to use, or display a firearm in a threatening manner while committing one of twelve enumerated felonies—including robbery. The probation officer recommended the crime-of-violence enhancement and the district court applied it, concluding the statute satisfied the elements clause.
The Fourth Circuit reversed. Under the categorical approach, courts do not examine what a particular defendant actually did. Instead, they compare the elements of the prior conviction to the elements required for the enhancement and ask whether the least culpable conduct covered by the statute necessarily involves the requisite type of force. The court relied on its earlier decision in United States v. Parham, 129 F.4th 280 (4th Cir. 2025), which held that Virginia common-law robbery is not a crime of violence because a defendant can be convicted of robbery by threatening to publicly accuse the victim of committing sodomy—a non-violent threat that does not involve physical force against another person.
The government argued that adding the firearm element of § 18.2-53.1 eliminates the non-violent sodomy-accusation pathway, effectively converting the compound offense into one that categorically requires physical force. The Fourth Circuit disagreed. The statute requires only that the defendant “use,” “attempt to use,” or “display” a firearm “while” committing the robbery—and under Virginia law, “use” does not require the firearm be directed at or employed against another person. Because it is theoretically possible to satisfy every element of § 18.2-53.1 without proving physical force against a person, the elements clause is not satisfied.
A Circuit Split With the First Circuit
The Fourth Circuit acknowledged it was creating a circuit split. Just weeks before Scott, the First Circuit decided United States v. Mao, No. 24-2107 (1st Cir. Apr. 29, 2026), reaching the opposite conclusion. The First Circuit reasoned that using a firearm during a robbery necessarily “implicates the threat of immediate violence” absent in the sodomy-accusation scenario. The Fourth Circuit respectfully disagreed, emphasizing that the categorical approach focuses on statutory elements—not on how those elements are most commonly satisfied in practice. For defendants sentenced in North Carolina’s federal courts, which fall within the Fourth Circuit, Scott is controlling. The circuit split may eventually attract Supreme Court review.
The Harmless Error Issue—and Why the Sentence Was Thrown Out
Even when a sentencing court makes a Guidelines calculation error, the government can sometimes preserve a sentence by showing the error was harmless—meaning the judge would have imposed the same sentence regardless, and that sentence would have been reasonable even under the correct range. Without the enhancement, Scott’s Guidelines range would have been 15–21 months. The district court’s 33-month sentence would have been a significant upward variance requiring substantial justification. The Fourth Circuit found the explanation insufficient, and was particularly troubled by the court’s repeated misstatement that Scott himself had pointed a gun at people during his prior offense, when it was actually a co-defendant who possessed the firearm. Factual errors about a defendant’s actual conduct, especially when cited as the primary reason for the sentence, undermine confidence in the result. The sentence was vacated and remanded for resentencing.
What This Means for Federal Defendants in North Carolina
If you or a family member is facing federal sentencing and has a prior conviction under Virginia Code § 18.2-53.1—or a similar state statute—Scott may directly affect the advisory Guidelines range. The difference between a crime-of-violence enhancement and no enhancement can be substantial, often representing a year or more of additional imprisonment. Beyond Virginia, the decision reinforces the Fourth Circuit’s strict application of the categorical approach, which continues to limit which prior state convictions can trigger enhanced federal sentences. As we have written before about recent federal sentencing guidelines changes, shifts in how enhancements are applied can have major consequences.
How courts handle departures and variances is just one area where experienced federal counsel makes a decisive difference. The Chetson Firm represents clients throughout North Carolina in federal criminal matters, including felon-in-possession cases and sentencing appeals. Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law—one of fewer than twelve attorneys in Wake County to hold that designation—and has handled federal criminal defense matters at the district and appellate levels for nearly two decades. If you have questions about how Scott or other recent Fourth Circuit decisions might affect your case, contact our office for a consultation.