In our view, the presence of an overt-act element (or two, in fact), together with specific intent to incite or engage in a riot, simply indicates that the Anti-Riot Act was drafted as an attempt offense, of which it bears all the classic hallmarks, rather than a commission offense. See Martin v. Taylor , 857 F.2d 958, 961 (4th Cir. 1988) ("An attempt crime requires specific intent to commit a crime and some overt act which tends toward but falls short of the consummation of the crime."); United States v. McFadden , 739 F.2d 149, 152 (4th Cir. 1984) ("The classical elements of an attempt are intent to commit a crime, the execution of an overt act in furtherance of the intention, and a failure to consummate the crime."). Indeed, as the indictment in this very case illustrates, the crime described by § 2101(a) is simply that of "Travel with Intent to Riot."
Otherwise, it would be impossible to cross-reference crimes of attempt, which, by definition, include a mens rea element. See, e.g., Martin v. Taylor, 857 F.2d 958, 961 (4th Cir.1988) (noting that “[a]n attempt crime requires specific intent to commit a crime”). Yet, we have held that the “acts and omissions” provision provides a sufficient basis for cross references to crimes of attempt. For example, in United States v. Ashford, we held that “the district court properly imposed a cross reference pursuant to USSG § 1B1.3(a)(1) ” to “attempted second-degree murder .” 718 F.3d 377, 383 (4th Cir.2013) ; see also id. (holding that U.S.S.G. § 1B1.3(a)(1) prescribes “sufficient conditions for relevant conduct”); cf. United States v. Sealey, 203 Fed.Appx. 487, 490 (4th Cir.2006) (per curiam) (affirming a cross reference to attempted murder where the defendant was aware that his conduct created a serious risk of death); United States v. Rice, 3 Fed.Appx. 64, 67 (4th Cir.2001) (per curiam) (affirming a cross reference to attempted sexual abuse based upon the motivation behind the defendant's attempted kidnapping).
First, attempt is an inchoate crime, distinct from the substantive crime attempted, United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003), that requires “a heightened mental state [to] separate[] criminality itself from otherwise [innocent] behavior,” Bailey, 444 U.S. at 405. Second, the Government's understanding of attempt is out of step with not only the Supreme Court, Braxton, 500 at 350-51 n.*, and Fourth Circuit, Martin v. Taylor, 857 F.2d 958, 961 (4th Cir. 1988) (“An attempt crime requires specific intent to commit a crime.”), but also every other Circuit. See, e.g., United States v. York, 48 F.4th 494, 499 (7th Cir. 2022)
Defendant now renews his Rule 29 motion, arguing the evidence was insufficient to prove defendant attempted to possess with intent to distribute heroin (Count 33), and consequently, there was no drug trafficking crime to satisfy that element of using and carrying a firearm during and in relation to a drug trafficking crime, (Count 34). Specifically, defendant argues the government's evidence was insufficient to show defendant had the specific intent, required for an attempt offense, of "knowingly and intentionally attempt[ing]" to possess with intent to distribute heroin, as charged in the Indictment, [DE #1 at 36], and Count 33 should therefore be dismissed. See generally Martin v. Taylor, 857 F.2d 958, 961 (4th Cir. 1988)("An attempt crime requires specific intent to commit a crime and some overt act which tends toward but falls short of the consummation of the crime.") Defendant contends therefore, the evidence was necessarily insufficient to convict defendant on Count 34. It is undisputed by the parties that the government had to prove defendant "knowingly and intentionally" attempted to possess with intent to distribute heroin on October 22, 2014, for a jury to find defendant guilty of Count 33. Agent Spears, who organized the sting operation, testified defendants would know they were transporting heroin because agents would tell them. [DE #721 77:12-25 - 78:1-12].
Lesser included offenses are the same as their greater offenses for purposes of double jeopardy such that multiple punishments are not authorized. Martin v. Taylor, 857 F.2d 958, 959–60 (4th Cir.1988) (citing Brown, 432 U.S. at 165, 97 S.Ct. 2221). When examining two statutes under Blockburger, the court must consider only the elements of the statutes and not the facts of the underlying case.
(7) As in Low, we must assume, in the absence of a record of the Richmond trial, that "proof in the first trial followed the charge and that no other offense was proved or tried." 11 Va. App. at 52, 396 S.E.2d at 385 (quoting Martin v. Taylor, 857 F.2d 958, 960 (4th Cir. 1988)). The conviction of rape in Richmond must necessarily have involved proof of the conduct occurring in Curtis's apartment, which was also shown in the Chesterfield trial. As previously discussed, the admission of the evidence concerning the Richmond rape, standing alone, did not violate double jeopardy.
Turning to the present case, we assume, in the absence of a record of Low's trial and conviction of assault and battery, that the "proof in the first trial followed the charge and that no other offense was proved or tried." Martin v. Taylor, 857 F.2d 958, 960 (4th Cir. 1988). We also draw the reasonable inferences from the Commonwealth's concessions at trial and the trial judge's findings.