The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-1967
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
CHRISTOPHER LLOYD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:24CR00153-001 — James P. Hanlon, Judge.
____________________
ARGUED MAY 18, 2026 — DECIDED AUGUST 12, 2026
____________________
Before SCUDDER, KIRSCH, and TAIBLESON, Circuit Judges.
TAIBLESON, Circuit Judge. This appeal requires us to inter-
pret the word “conspiring” in the United States Sentencing
Guidelines, where it appears in the definition of “crime of vi-
olence.” At Christopher Lloyd’s sentencing for unlawful pos-
session of a firearm, the district court found that Lloyd had
previously committed a “crime of violence” under the Guide-
lines—specifically, conspiring to commit armed robbery un-
der Indiana law. That finding increased Lloyd’s Guidelines
2 No. 25-1967
range. Lloyd appeals, arguing that Indiana defines “conspir-
ing” more broadly than the Guidelines do, so no Indiana con-
spiracy conviction can be a “crime of violence” under the
Guidelines.
The distinction Lloyd points to is that under Indiana law,
a defendant may be guilty of conspiracy if his only cocon-
spirator is an undercover agent—i.e., not a genuine partici-
pant. This is called a “unilateral” conspiracy. By contrast, in
many (but not all) other jurisdictions, a conspiracy must be
“bilateral,” meaning that at least two coconspirators are gen-
uine participants. The Guidelines, for their part, define
“crimes of violence” to include certain conspiracies without
specifying anything about their bilateral or unilateral nature.
We apply the familiar categorical approach in interpreting
this Guidelines provision. That approach requires us to divine
the elements of the “generic” crime of conspiracy as of the
time the relevant Guideline was enacted, and then compare
generic conspiracy to Indiana conspiracy. Following that
method, we conclude that generic conspiracies around the
time of the relevant Guideline’s enactment were only bilat-
eral, and that Indiana conspiracy is therefore not a categorical
match to conspiracy under the Guidelines. This means that
Lloyd’s Indiana conspiracy conviction should not have
counted as a “crime of violence” under the Guidelines. We va-
cate and remand to the district court for resentencing.
I. Background
In 2024, Lloyd fell asleep with a gun on him at a White
Castle restaurant in Indiana. He was charged with, and ulti-
mately pleaded guilty to, possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1).
No. 25-1967 3
At sentencing, the parties disputed Lloyd’s proper Guide-
lines offense level, which turned on his previous felony con-
victions. For a § 922(g) offense like Lloyd’s, the Sentencing
Guidelines assign a higher base offense level to a defendant
who has “at least two felony convictions” for “a crime of vio-
lence or a controlled substance offense.” U.S. SENT’G
GUIDELINES MANUAL § 2K2.1(a)(2) (2024). The Presentence In-
vestigation Report stated that Lloyd had two qualifying fel-
ony convictions, both under Indiana law: dealing in cocaine,
a “controlled substance offense,” and conspiracy to commit
armed robbery, a “crime of violence.” Lloyd objected, arguing
that his Indiana conspiracy conviction did not constitute a
“crime of violence,” so he only had one qualifying prior fel-
ony (which would produce a lower Guidelines offense level).
The term “crime of violence” is defined in U.S.S.G. § 4B1.2.
As relevant here, it includes “any offense under federal or
state law, punishable by imprisonment for a term exceeding
one year, that … has as an element the use, attempted use, or
threatened use of physical force against the person of another;
or … is … robbery,” as well as the “[i]nchoate [o]ffenses” of
“conspiring to commit any such offense.” On its face, that def-
inition includes conspiracies to commit armed robbery. But
Lloyd argued that Indiana’s conspiracy statute criminalizes
both unilateral and bilateral conspiracies and is therefore
broader than the generic form of conspiracy reflected in the
Guidelines. As a result, Lloyd argued, not all Indiana conspir-
acies categorically meet the Guidelines’ definition of conspir-
acy. Under the logic of the categorical approach, that would
mean no Indiana conspiracy conviction could be a “crime of
violence” under Guidelines § 4B1.2—including Lloyd’s own
armed robbery conspiracy, even though his conspiracy was,
in fact, a bilateral one.
4 No. 25-1967
The district court overruled Lloyd’s objection, finding that
in 2023—the time the district judge deemed relevant—the ge-
neric definition of conspiracy included the unilateral theory,
so there was not a categorical mismatch, and Lloyd’s Indiana
conspiracy conviction constituted a “crime of violence.” Ap-
plying the enhanced base offense level reflected in the PSR,
Lloyd’s Guidelines range was 77 to 96 months’ imprisonment.
The judge sentenced Lloyd to 96 months’ imprisonment, and
Lloyd now appeals.
II. Discussion
Whether a defendant’s prior conviction counts as a “crime
of violence” under the Guidelines “is a question of law we re-
view de novo” when, as here, it was preserved below. United
States v. Taylor, 630 F.3d 629, 632 (7th Cir. 2010).
The parties agree on the analytical framework for deter-
mining whether Indiana conspiracy convictions count as con-
spiracies under § 4B1.2: We apply “the familiar categorical ap-
proach, under which this court must compare the least-culpable
conduct of the state offense with the generic federal offense.”
United States v. Pemberton, 85 F.4th 862, 866 (7th Cir. 2023) (cit-
ing Mathis v. United States, 579 U.S. 500, 509 (2016)). “If the
state offense sweeps more broadly than the generic federal of-
fense, then the defendant does not qualify for the enhance-
ment.” Id. Under the categorical approach, “the facts of each
defendant’s conduct” are irrelevant; instead, we look only to
“the elements of the statute of conviction” to determine the
scope of the state offense. Pugin v. Garland, 599 U.S. 600, 603–
04 (2023) (quoting Taylor v. United States, 495 U.S. 575, 601
(1990)).
No. 25-1967 5
The parties also agree about Indiana law: Indiana’s con-
spiracy statute, IND. CODE § 35-41-5-2, criminalizes both bilat-
eral and unilateral conspiracies. See Garcia v. State, 271 Ind.
510, 394 N.E.2d 106, 109–10 (1979); Tidwell v. State, 644 N.E.2d
557, 559 (Ind. 1994). This means that in Indiana, “proof that
the co-conspirator intended to carry out the conspiracy is not
required,” Tidwell, 664 N.E.2d at 559, so the statute covers “a
person who agrees to commit a crime with, for example, an
undercover agent who does not sincerely conspire to break
the law,” Pemberton, 85 F.4th at 865.
This leaves us with one principal task: Defining the scope
of “generic” conspiracy, which will tell us the meaning of
“conspiring” in § 4B1.2 of the Guidelines. If the word “con-
spiring” in the Guidelines includes both bilateral and unilat-
eral conspiracies, then Lloyd’s Indiana conspiracy conviction
can be a “crime of violence.” But if the word “conspiring” in
the Guidelines is limited to bilateral conspiracies, then
Lloyd’s Indiana conspiracy conviction does not count. We en-
countered a nearly identical question only a few years ago in
United States v. Pemberton, 85 F.4th 862, and outlined the path
to answering it. There, our review was for plain error, so we
ultimately did not resolve the question. We do so today.
A. Time of Enactment
Identifying the elements of a generic crime requires us to
ascertain “the offense as commonly understood.” Descamps v.
United States, 570 U.S. 254, 257 (2013); see also Pugin, 599 U.S.
at 609 (defining a generic crime by identifying “the wide-
spread and contemporary understanding of” the offense). We
conduct that analysis as of the time of the relevant Guideline’s
“enact[ment].” Pemberton, 85 F.4th at 867; see also, e.g., United
States v. Hill, 963 F.3d 528, 532 (6th Cir. 2020). Here, that means
6 No. 25-1967
1989, which is the year that the Sentencing Commission
added conspiracies to the definition of “crime of violence.”
The Commission did so in an “Application Note[]” to § 4B1.2
specifying that the term “crime of violence” includes the in-
choate crimes of “aiding and abetting, conspiring, and at-
tempting to commit” the described offenses. U.S.S.G. § 4B1.2
cmt. n.1 (1989).
The Government resists this conclusion and instead urges
us to define generic conspiracy as of 2023. That year, the Sen-
tencing Commission relocated the language about inchoate
offenses from its original location in § 4B1.2’s application
notes to the body of § 4B1.2, in subsection (d). See U.S.S.G.
§ 4B1.2(d) (2023); U.S.S.G. supplement to app. C, amend. 822
at 245–47 (2023). In the Government’s view, we should treat
this reorganization as “substantive” and “meaningful,” and
therefore consider 2023 to be the time of § 4B1.2(d)’s “pas-
sage.” The district court agreed with this approach.
We view the 2023 amendment differently. The amend-
ment made no substantive change to the pertinent text; in-
stead, it moved it. The Commission explained that the move
responded to a circuit split about the authoritative weight of
§ 4B1.2’s application notes. Some courts (but not ours) had de-
clined to follow certain Guidelines application notes in the
wake of Kisor v. Wilkie, 588 U.S. 558 (2019). See United States v.
White, 97 F.4th 532, 537–38 (7th Cir. 2024) (describing circuit
split). The 2023 amendment confirmed that, whatever one’s
views of the application notes in general, inchoate offenses
like conspiracy are included within the meaning of “crime of
violence” under § 4B1.2. See U.S.S.G. supplement to app. C,
amend. 822 at 245–47 (2023) (“The amendment addresse[d]
this circuit conflict by moving, without change, the
No. 25-1967 7
commentary including certain inchoate and accessory of-
fenses in the definitions of ‘crime of violence’ and ‘controlled
substance offense’ to the text of the guideline.”); United States
v. Pugh, 147 F.4th 801, 806 (7th Cir. 2025) (noting this court’s
treatment of the application note was unchanged by the 2023
amendment). There is no reason to read the amendment as
affecting the substantive meaning of the word “conspiring.”
Cf. Antonin Scalia & Bryan A. Garner, Reading Law 257 (2012)
(“legislative restyling exercises,” such as “the nonsubstantive
redrafting” of Federal Rules, do “not amend prior enactments
unless [they] do[] so clearly”). Thus, in ascertaining the ge-
neric elements of conspiracy, we look to the law as it existed
in 1989.
B. Generic Definition of Conspiracy
We must determine whether, in 1989, the “generally ac-
cepted contemporary meaning” of “conspiring” included
participating in unilateral conspiracies. See Taylor, 495 U.S. at
596. “In doing so, we consider contemporaneous federal and
state laws, dictionary definitions, and the Model Penal Code.”
Pemberton, 85 F.4th at 867.
Traditionally, conspiracies at common law were bilateral.
See, e.g., Garcia, 394 N.E.2d at 108 (“The bilateral concept is the
traditional view of conspiracy as derived from common law.
It is formulated in terms of two or more persons agreeing to
commit a crime, each with intent to do so.”) (collecting cases);
State v. Marian, 62 Ohio St. 2d 250, 405 N.E.2d 267, 269 (1980)
(“Traditionally a criminal conspiracy has existed only if there
has been a meeting of the minds of two or more people to act
together to achieve an unlawful purpose.”). Through the mid-
twentieth century, federal and state jurisdictions all followed
suit, defining conspiracy in accordance with that term’s
8 No. 25-1967
longstanding historical meaning. See, e.g., Dierdre A. Burg-
man, Unilateral Conspiracy: Three Critical Perspectives, 29
DEPAUL L. REV. 75, 78–83 (1979); Peter Buscemi, Conspiracy:
Statutory Reform Since the Model Penal Code, 75 COLUM. L. REV.
1122, 1122–26 (1975).
That started to change about sixty years ago. In 1962, after
a close vote, the drafters of the Model Penal Code (MPC)
broke new ground and adopted a “unilateral” concept of con-
spiracy. The MPC did so by defining “conspiracy” in terms of
an individual defendant’s agreement to commit a crime, ra-
ther than focusing on an agreement between two or more peo-
ple. MODEL PENAL CODE § 5.03(1) (A.L.I. 1962). As the com-
ments explained, this language “depart[ed] from the tradi-
tional view of conspiracy as an entirely bilateral or multilat-
eral relationship.” MODEL PENAL CODE § 5.03 cmt. 2(b) (A.L.I.
1985). 1 And so the unilateral approach was born. See Buscemi,
supra, at 1136 (“Under a unilateral formulation, the crime of
conspiracy is committed when a person agrees to proceed in a
prohibited manner; under a bilateral formulation, the crime
of conspiracy is committed when two or more persons agree to
proceed in such manner.”). The MPC’s adoption of the unilat-
eral approach marked the beginning of a movement, as some
jurisdictions began embracing this broader understanding of
conspiracy. See generally id. at 1122–28 (surveying changes to
state statutes).
1 The American Law Institute adopted the Official Draft of the MPC
in 1962. It did not formally publish the accompanying Commentaries to
Part I of the MPC until 1985. A nearly identical comment, however, was
submitted to members in 1960. MODEL PENAL CODE § 5.03(1) cmt. 2 (A.L.I.,
Tentative Draft No. 10 1960).
No. 25-1967 9
Federal law, however, did not. See Pemberton, 85 F.4th at
867. For well over a century now, the general federal conspir-
acy statute has consistently required that “two or more per-
sons” participate in a conspiracy, which is classic bilateral lan-
guage. See, e.g., LXX REV. STAT. § 5440 (1875); 18 U.S.C. § 88
(1926); 18 U.S.C. § 371 (1988); 18 U.S.C. § 371 (2024). During
the late 1970s, Congress considered conspiracy legislation in
the proposed Federal Criminal Code Reform Act, which em-
ployed the new unilateral language focusing on the defend-
ant’s “agree[ment] with” another to engage in criminal con-
duct. Criminal Code Reform Act of 1977, S. 1437, 95th Cong.
§ 1002(a) (1977). But that legislation did not pass. See
37 CONG. Q. 1899, 1900 (1979); H.R. REP. No. 95-29, at III, 3,
9–12 (1979).
For its part, the Supreme Court has long described the of-
fense of “conspiracy” as “a partnership in crime” or “the
agreement of two persons,” while not addressing the
bilateral-vs.-unilateral question directly. Pinkerton v. United
States, 328 U.S. 640, 643–44 (1946); see also, e.g., Ziglar v. Abbasi,
582 U.S. 120, 153 (2017) (“Conspiracy requires an agreement—
and in particular an agreement to do an unlawful act—
between or among two or more separate persons.”). The very
reason conspiracies are dangerous, the Supreme Court has ex-
plained, is that “collective criminal agreement—partnership
in crime—presents a greater potential threat to the public than
individual delicts.” Callanan v. United States, 364 U.S. 587, 593
(1961). And for our own part, we have repeatedly reiterated
that “an agreement must exist among coconspirators, that is,
those who actually intend to carry out the agreed-upon crim-
inal plan,” meaning “[a] defendant is not liable for conspiring
solely with an undercover government agent or a government
informant.” United States v. Corson, 579 F.3d 804, 811 (7th Cir.
10 No. 25-1967
2009) (citing United States v. Mahkimetas, 991 F.2d 379, 383 (7th
Cir. 1993)). We are aware of—and the parties have pointed
to—no disagreement among the circuits on this question, now
or in 1989.
The MPC did, however, inspire some states to recognize
unilateral conspiracies. See, e.g., Marian, 405 N.E.2d at 269, 271
(interpreting OHIO REV. CODE ANN. § 2923.01). But as of 1989,
at least, a clear majority of states still required bilateral agree-
ment. Though the parties have some quibbles over the precise
count, they agree that at least 28 states plus D.C., Puerto Rico,
and the Virgin Islands used a bilateral-only approach in 1989. 2
And even in states that amended their conspiracy statutes and
implemented language similar to the MPC, some courts re-
fused to abandon the bilateral approach, finding the revisions
insufficient to support such a dramatic departure from the
long-established understanding of conspiracy. See, e.g., People
v. Foster, 99 Ill. 2d 48, 457 N.E.2d 405, 406–09 (1983); State v.
Grullon, 212 Conn. 195, 562 A.2d 481, 484–86 (1989); State v.
Pacheco, 125 Wash. 2d 150, 882 P.2d 183, 185–88 (1994).
Secondary sources also point to the conclusion that, as of
1989, a “conspiracy” generally required bilateral agreement.
Every prominent legal dictionary that we know of from
around that time defined “conspiracy” in terms of an agree-
ment between two people, rather than adopting the MPC’s fo-
cus on the individual defendant. See, e.g., Black’s Law
2 The parties agree that at least the following states still required bilat-
eral agreement in 1989: California, Connecticut, Florida, Georgia, Idaho,
Illinois, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan,
Mississippi, Montana, Nevada, New Mexico, North Carolina, Oklahoma,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Virginia, Washington, and West Virginia.
No. 25-1967 11
Dictionary (5th ed. 1979) (defining “[c]riminal conspiracy” as
“[a]n agreement or confederacy of two or more persons to do
a criminal or unlawful act or to do a lawful act in an unlawful
or criminal manner”); Black’s Law Dictionary (6th ed. 1990)
(same); Bryan A. Garner, A Dictionary of Modern Legal Usage
124, 145 (1st ed. 1987) (defining “[c]onspiracy” to require “an
agreement between two or more people to behave in a man-
ner that will automatically constitute an offense by at least one
of them”); Merriam-Webster’s Dictionary of Law 98 (1st ed.
1996) (defining “conspiracy” as “an agreement between two
or more people to commit an act prohibited by law or to com-
mit a lawful act by means prohibited by law”). The Supreme
Court has relied on the same sources to ascertain the generic
definitions of statutory terms. See Esquivel-Quintana v. Ses-
sions, 581 U.S. 385, 392 (2017); Pugin, 599 U.S. at 604.
Together, federal law, state law, and secondary sources all
indicate that generic conspiracy in 1989 required bilateral
agreement. This leaves the Government with the MPC’s out-
lier approach, which represented a conscious effort to change
the law rather than to distill it. The Government points to the
state law “trend,” inspired by the MPC, towards expanding
the meaning of conspiracy to embrace unilateral conspiracy.
But trends alone cannot carry the day under the Supreme
Court’s categorical-approach cases, at least not until the
trends garner majority support. And if anything, the Govern-
ment’s point only reinforces that the default understanding of
conspiracy at the time was still limited to bilateral conspiracy.
Thus the word “conspiring” in Guidelines § 4B1.2 refers only
to bilateral conspiracies.
To be fair, we acknowledge this conclusion is not exactly
intuitive. The Sentencing Commission wrote the word
12 No. 25-1967
“conspiring” without specifying how many coconspirators
must genuinely agree, at a time when the law on this point
was in flux nationwide. The word’s plain meaning in 1989
might therefore have been broad enough to encompass both
types of conspiracies—just like the unadorned word “office,”
in 2026, might encompass both a home office and an office in
the workplace. But that line of reasoning would be incon-
sistent with the Supreme Court’s categorical-approach prece-
dents, and so we pursue it no further. Instead, defining a ge-
neric offense requires us to choose a side and specify the ele-
ments that represented a consensus view of conspiracy at the
time of enactment. See, e.g., Esquivel-Quintana, 581 U.S. at 395–97
(holding that generic meaning of “sexual abuse of a minor”
requires that “the victim must be younger than 16,” which
was the age of consent in the majority of states, even though
16 states had higher ages of consent). The Government points
to no case in which a majority of the pertinent jurisdictions
and sources defined an offense one way while this court or the
Supreme Court defined the generic offense more broadly.
As a practical matter, we also recognize the significance of
our conclusion. The parties agree that nowadays, at least
twenty states have conspiracy statutes adopting the unilateral
approach, like Indiana does. If we are right, then none of those
states’ conspiracy crimes can be “crimes of violence” under
§ 4B1.2. That result produces odd disparities: For example, an
Illinois conspiracy may still qualify as a “crime of violence,”
while identical conduct committed just across the border in
Indiana may not. But this is the result demanded by the cate-
gorical approach, and so it is the one we adopt here. 3
3 Many categorical-approach irregularities are difficult to fix in statu-
tory or Guidelines amendments. But this one is probably not. Should the
No. 25-1967 13
***
Because the generic definition of conspiracy in 1989 re-
quired bilateral agreement, Lloyd’s conspiracy conviction un-
der Indiana Code § 35-41-5-2 does not satisfy § 4B1.2 and
should not have subjected him to an enhanced base offense
level under § 2K2.1(a)(2). Lloyd’s sentence is VACATED and his
case is REMANDED for resentencing consistent with this opin-
ion.
Sentencing Commission disagree with our bottom line, it might simply
specify that the word “conspiring” in § 4B1.2 reaches both bilateral and
unilateral conspiracies.