April 11, 2014
UNITED STATES OF AMERICA, Plaintiff-Appellee,
LUCIANO PASCACIO-RODRIGUEZ, Defendant-Appellant
Appeal from the United States District Court for the Southern District of Texas.
For United States of America, Plaintiff - Appellee: James Lee Turner, Renata Ann Gowie, U.S. Attorney's Office, Houston, TX.
For Luciano Pascacio-Rodriguez, Defendant - Appellant: Marjorie A. Meyers, Sarah Beth Landau, Federal Public Defender's Office, Houston, TX.
Before WIENER, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN,
Luciano Pascacio-Rodriguez was convicted under 8 U.S.C. § 1326(a) and (b) as an alien unlawfully present in the United States following deportation. He appeals his sentence of 70 months of imprisonment, contending that the district court erred in concluding that his prior state-court conviction for conspiracy to commit murder warranted a 16-level enhancement under § 2L1.2 of the Sentencing Guidelines. Pascacio-Rodriguez asserts that the Nevada statute under which he was convicted did not require proof of an overt act in furtherance of the conspiracy; the generic, contemporary meaning of " conspiracy" requires an overt act; as used in the Guidelines, " conspiracy" refers to the generic, contemporary meaning of that term; and, therefore, his prior state-court conviction does not constitute a " crime of violence" under the Guidelines.
We conclude that the Guidelines do not require an overt act as an element of conspiracy to commit murder. The district court did not err in imposing the 16-level enhancement, and we affirm.
Pascacio-Rodriguez pleaded guilty to violating 8 U.S.C. § 1326(a) and (b) for being unlawfully present in the United States following his deportation. Only his sentence is at issue in this appeal.
Pascacio-Rodriguez had been convicted of conspiracy to commit murder under Nevada state law prior to the time that he was removed from the United States. The Presentence Investigation Report (PSR) recommended a 16-level enhancement under § 2L1.2(b)(1)(A) of the Sentencing Guidelines based on that 2003 Nevada offense. Pascacio-Rodriguez objected, contending that the Nevada statute under which he was convicted did not require proof of an overt act in furtherance of the conspiracy and therefore that the Nevada conspiracy offense was " broader than the contemporary generic definition of 'conspiracy.'"
The district court overruled Pascacio-Rodriguez's objection, noting that a number of federal conspiracy statutes do not require an overt act and concluding that the overt-act requirement was not " an important vital part of the generic definition of 'conspiracy.'" The district court calculated a total offense level of 21 and a criminal history category of VI, but it reduced the criminal history category by one level because the district court concluded that Pascacio-Rodriguez's criminal history had been overrepresented. The corresponding advisory Guidelines range of imprisonment was 70 to 87 months, and, after considering the applicable factors under 18 U.S.C. § 3553(a), the district court sentenced Pascacio-Rodriguez to 70 months of imprisonment. On appeal, Pascacio-Rodriguez contends that the district court erroneously imposed the 16-level enhancement, leading to an incorrect calculation of the Guidelines range. Absent the 16-level enhancement, the advisory Guidelines range would have been 33 to 41 months of imprisonment.
The 16-level enhancement at issue applies if the defendant was deported after he had been convicted of " a crime of violence."  The term " crime of violence" as defined in the commentary to § 2L1.2 of the Sentencing Guidelines includes the offense of " murder" under federal, state, or local law, and includes " conspiring" to commit murder.
The Nevada statutes under which Pascacio-Rodrigez was convicted of conspiracy to commit murder did not include an overt act as an element of the offense. Pascacio-Rodriguez pleaded guilty to and was convicted of conspiring to commit murder " in violation of [sections] 199.480, 200.010 [and] 200.030" of the Nevada Revised Statutes that were in effect in 2003. Section 200.010 defined murder, and section 200.030 defined the degrees of murder and the range of penalties. Section 199.480(1)(b) sets forth the penalties for conspiracy to commit murder and provides for a minimum term of imprisonment of not less than two years and a maximum term of not more than ten years. A separate Nevada statute, section 199.490, provides: " In any such proceeding for violation of NRS 199.480 [which includes conspiracy to commit murder], it shall not be necessary to prove that any overt act was done in pursuance of such unlawful conspiracy or combination." 
Nevertheless, the information by which Pascacio-Rodriguez was charged in Nevada expressly alleged multiple overt acts by Pascacio-Rodriguez or his cohort in furtherance of the conspiracy to commit murder, including the procurement of a firearm, firing the weapon at and wounding two individuals, and fleeing from the crime scene with the firearm:
COUNT I - CONSPIRACY TO COMMIT MURDER
defendants did then and there meet with each other and between themselves, and each of them with the other, wilfully, unlawfully, and feloniously conspire and agree to commit a crime, to-wit: murder, and in furtherance of said conspiracy, Defendants did commit the acts as set forth in Counts 2 and 3 [sic], said acts being incorporated by this reference as though fully set forth herein.
COUNT 2 - DISCHARGING FIREARM OUT OF MOTOR VEHICLE
defendants did then and there wilfully, unlawfully, and feloniously, while in a motor vehicle within an area designated by City or County Ordinance, as a populated area for the purpose of prohibiting the discharge of weapons, maliciously or wantonly discharge, or cause a firearm to be discharged out of the motor vehicle, the Defendants being liable under the following principles of criminal liability, to-wit: by the Defendants acting together in furtherance of the conspiracy set forth in Count 1 above, by which each conspirator is liable for the acts of any co-conspirator in furtherance of the conspiracy, by Defendant HECTOR LUQUE-RAMIREZ, aka Hector Luqueramirez, shooting at and into the bodies of the said RICKIE SLAUGHTER and/or THOMAS EVANS with said firearm, by Defendant LUCIANO PASCACIO afterward attempting to flee the scene with the firearm used to shoot the said RICKIE SLAUGHTER and/or THOMAS EVANS; the Defendants aiding or abetting each other as follows: by going together prior to the crime to acquire a firearm, by going together to and from the crime scene, by fleeing the crime scene together, and by directly and indirectly counseling, encouraging, commanding, inducing, and procuring each other to commit the acts set forth herein; the said Defendants acting in concert throughout.
Pascacio-Rodriguez signed a written plea agreement in which he pleaded guilty to all of the allegations in the information.
The first question we consider is whether, assuming that the Guidelines require an overt act as an element of conspiracy to commit murder, the fact that Pascacio-Rodriguez was expressly charged with and pleaded guilty to overt acts suffices to establish a crime of violence for purposes of the 16-level sentencing enhancement. A recent Supreme Court decision indicates that it does not. In Descamps v. United States , which considered the meaning of " a violent felony" under the Armed Career Criminal Act, the Supreme Court held that sentencing courts may not consult additional documents (the so-called modified categorical approach) " when a defendant was convicted under an 'indivisible' statute-- i.e., one not containing alternative elements--that criminalizes a broader swath of conduct than the relevant generic offense."  Only the statute of conviction may be consulted if the statute is indivisible.
The state conviction at issue in Descamps was for burglary under California law. The Supreme Court has long held that Congress intended for the enumerated offenses in the ACCA, which include burglary, to refer only to the " generic" crime, meaning " the offense as commonly understood."  The Supreme Court explained that the generic offense of burglary " requires an unlawful entry along the lines of breaking and entering," but the California statue at issue in Descamps did not. The district and appellate courts in Descamps had held that because the defendant had admitted to the elements of generic burglary during his California prosecution, his prior conviction should be considered to be a conviction for a violent felony. The Supreme Court disagreed, holding that " whether he [the defendant] admitted to breaking and entering is irrelevant." 
In Descamps, the Supreme Court described a divisible statute as one that " comprises multiple, alternative versions of the crime,"  while an indivisible statute is " one not containing alternative elements."  In the present case, the Nevada statute of conspiracy that applies to conspiracy to commit murder is indivisible regarding the requirement of an overt act: An overt act is not an element of the Nevada conspiracy offense for which Pascacio-Rodriguez was convicted. As in Descamps, " [t]he modified [categorical] approach . . . has no role to play in this case."  We must therefore determine whether the Guidelines require an overt act as an element of a conspiracy to commit murder.
The district court held that Pascacio-Rodriguez's prior Nevada conviction for conspiracy to commit murder was a crime of violence within the meaning of the Guidelines. We review the district court's interpretation of the Guidelines and the commentary de novo.
Theoretically, at least, there is more than one approach to construing § 2L1.2(b)(1)(A)(ii). One is to discern from the language that the Sentencing Commission used whether it intended for an overt act to be an element of every conspiracy conviction, regardless of the nature of the underlying offense, or whether the nature of the underlying offense should be considered. Another interpretive method is to employ the categorical approach to discern the elements of " conspiracy" or " conspiracy to commit murder," irrespective of the language of § 2L1.2(b)(1)(A)(ii). We conclude that under either approach, § 2L1.2(b)(1)(A)(ii) does not require an overt act as an element of conspiracy to commit murder.
This court has said that in determining whether a prior conviction was for an enumerated offense and therefore a crime of violence within the meaning of the Guidelines, we generally employ the categorical approach, as explicated by the Supreme Court in Taylor v. United States , a case that, like Descamps, construed the Armed Career Criminal Act (ACCA). When using the categorical approach, we " compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime-- i.e., the offense as commonly understood."  In a " narrow range of cases," we may employ an exception to the categorical approach, known as the modified categorical approach, which is derived from the Supreme Court's decision in Shepard v. United States , another case in which the Court construed the ACCA. As already discussed, Descamps teaches that the modified categorical approach may not be applied to an indivisible statute of conviction. The Nevada statute under which Pascacio-Rodriguez was convicted does not list potential elements in the alternative, with one alternative being the commission of an overt act; instead, it provides that " it shall not be necessary to prove that any overt act was done in pursuance of such unlawful conspiracy." 
Neither " conspiracy" nor " murder" is defined by the Guidelines. Utilizing the categorical approach, our task is to determine the elements of the generic offense of conspiracy to commit murder. Recently,
in United States v. Rodriguez , this court set forth a methodology for defining enumerated, non-common law offenses that are not defined by the Guidelines, holding that we derive the meaning of such offenses from " common usage as stated in legal and other well-accepted dictionaries."  We expressly " limit[ed] our holding [in Rodriguez ] to offense categories that are not defined at common law" and explained that " [w]e leave the mechanics of how we determine the 'generic, contemporary meaning' of common-law offense categories for another day."  Because both murder and conspiracy are offenses that were recognized by the common law, Rodriguez does not govern how we are to construe the Guidelines in this appeal. This court's pre- Rodriguez precedent held that under the categorical approach, we " employ a common sense approach based on the generic, contemporary meaning of the terms used in the Guidelines." 
In divining the generic, contemporary meaning, we look to a number of sources, including federal law, the Model Penal Code, treatises, and modern state codes. At common law, it was not necessary to allege or prove an act in furtherance of a conspiracy. The Supreme Court has held that, as a general proposition, courts should construe federal statutes based on the assumption that Congress intended to adopt the common-law meaning of statutory terms unless Congress has indicated otherwise. Accordingly, the Supreme Court has not read an overt-act requirement into federal conspiracy offenses. We note that, in Taylor, " conspiracy" to commit one of the offenses enumerated in the ACCA was not at issue. The Supreme Court held in Taylor that Congress had indicated that it did not intend to adopt the common-law definition when it used the term " burglary" in the ACCA. The Court discerned that Congress instead intended " burglary" to have
a " generic, contemporary meaning" when that term was used in the ACCA. The common-law definition of conspiracy is enlightening in determining the generic, contemporary meaning of conspiracy to commit murder, but it is not dispositive.
A survey of federal conspiracy statutes reveals that Congress has sometimes required an overt act, but more often it has not. The general federal conspiracy provision, which applies to conspiracy " to commit any offense against the United States, or to defraud the United States . . . in any manner or for any purpose," requires an overt act. In more specifically tailored conspiracy statutes, the majority do not require an overt act. A review of conspiracy provisions that might generally be described as pertaining to nonviolent crimes reveals that at least 15 of such provisions require an overt act, while at least 99 do not.
Among the federal statutes that deal with conspiracies to commit crimes that arguably would be within the definition of a " crime of violence" in § 2L1.2, eight require an overt act, while 43 do not.
A number of broadly applicable federal conspiracy provisions do not require an overt act, including conspiracy to bring aliens to the United States or to harbor them after entry;  conspiracy to commit racketeering offenses under the Racketeer Influenced and Corrupt Organizations Act (RICO);  conspiracy to commit violent crimes in aid of racketeering activity under RICO;  conspiracy to commit fraud offenses, including wire and mail fraud;  conspiracy to commit drug-related offenses;  and conspiracy to fix prices in violation of § 1 of the Sherman Act.
We believe that our inquiry should be more narrow, however, and should focus on the particular offense that is at issue in this appeal, which is conspiracy to commit murder. Under federal statutes, approximately five provisions involving conspiracy to commit murder require an overt act, while at least nine do not.
The Model Penal Code's general conspiracy provision does not require an overt act for first- or second-degree felonies. The Model Penal Code provides that murder is a first-degree felony;  therefore, an overt act is not required for conspiracy to commit murder under the Model Penal Code.
An oft-cited treatise notes that, although " [a]t common law a conspiracy was punishable even though no act was done beyond the mere making of the agreement . . ., most of the states now require that an overt act in furtherance of the plan be proven for all or specified conspiratorial objectives."  Similarly, Black's Law Dictionary defines conspiracy as " [a]n agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose."  It appears that 34 states require an overt act as an element of all criminal conspiracies, while 13 states do not require an overt act for any conspiracy offense. The three remaining states--Arizona, New Jersey, and Utah--do not require an overt act for certain serious crimes. In Arizona, no overt act is required " if the object of the conspiracy was to commit any felony upon the person of another,"  and both first- and second-degree murder are felonies in Arizona. In New Jersey, no overt act is required for " conspiracy to commit . . . a crime of the first or second degree,"  and " [m]urder is a crime of the first degree."  In Utah, no overt act is required when " the offense is a capital felony, a felony against the person, arson, burglary, or robbery."  Murder is a first-degree felony in Utah.
Were we to focus solely on the requirements of a majority of the states' laws regarding the necessity of alleging and proving an overt act in furtherance of a conspiracy to commit murder, we would be compelled to conclude that the generic, contemporary definition of conspiracy to commit murder includes the requirement of an overt act. However, to do so would ignore the laws of 16 states, a number of federal laws, and the Model Penal Code, none of which contains an overt-act requirement for conspiracy to commit murder. After surveying the various sources typically consulted in applying the categorical approach, it appears to us that, albeit slight, the weight of authority indicates that conspiracy to commit murder does not require an overt act as an element.
It is not clear, however, whether this court's precedent requires that we apply the categorical approach in discerning the elements of a conspiracy, as that term is used in § 2L1.2(b)(1)(A)(ii). In United States v. Rodriguez-Escareno , we held that, in interpreting § 2L1.2(b)(1)(A)(i), at least with respect to a conspiracy to commit a federal drug trafficking offense, we do not follow the " analytical route" of seeking a crime's " 'generic, contemporary meaning[,]'" which would include " examin[ing] 'the Model Penal Code, treatises, federal and state law, dictionaries, and the Uniform Code of Military Justice' for a definition."  In Rodriguez-Escareno, the defendant had a prior conviction under 21 U.S.C. § 846 for conspiracy to commit a drug trafficking offense. We noted that, although " 'most jurisdictions' require proof of an overt act to establish a conspiracy,"  no overt act is required for conviction of a conspiracy under § 846. The defendant argued that, because there was no overt-act requirement, a conspiracy under § 846 was not within the generic, contemporary meaning of " conspiracy." We rejected that argument, holding that there is no need to " find meaning for the offense [of conspiracy to commit a drug trafficking offense] outside of the Guidelines."  We reasoned that " [t]he Guidelines themselves tell us that a conviction for a conspiracy to commit a federal drug trafficking offense will justify application of the enhancement" and that " Application Note 5 is a clear statement by the Sentencing Commission that the enhancement applies to conspiracies to commit federal drug trafficking offenses."  We further explained that " [f]or us, nonetheless, to search for a generic meaning of 'conspiracy' by employing a doctrine generally used to determine whether a state conviction is of an enumerated crime, would only becloud what is clear from the Guideline itself." 
Although our decision in Rodriguez-Escareno stated in a footnote that " [w]e imply no position on the relevance of this reasoning to applying the enhancement to convictions for conspiracies to commit state-law offenses,"  there is no basis for concluding that the Sentencing Commission intended to create a dichotomy in § 2L1.2 between conspiracy convictions under federal law and conspiracy convictions under state law. The text of Application Note 5, which states that " [p]rior convictions of offenses counted under subsection (b)(1) include the offenses of . . . conspiring . . . to commit such offenses,"  does not draw a distinction between federal and state crimes and does not reasonably permit courts to draw such a distinction.
We do not quarrel with the ultimate holding in Rodriguez-Escareno . Rather, it highlights the fact that considerable weight must be given to the number of serious federal conspiracy offenses that do not require an overt act. Our decision in Rodriguez-Escareno counsels against simply tallying the number of state laws that require an overt act and those that do not.
We are also persuaded that serious federal conspiracy crimes, such as a conspiracy to murder a family member of a federal official;  conspiracy to kill a witness, victim, or informant to prevent testimony or in retaliation for testimony;  and other conspiracies aimed at causing death or serious bodily injury were undoubtedly intended by the Sentencing Commission to result in a 16-level enhancement under § 2L1.2, regardless of whether the statute of conviction has an overt act as an element of the offense. We see no basis for concluding that the Commission intended offenses under state law to be treated differently from similar or identical offenses under federal law. The Guidelines regarding a conspiracy to commit a " crime of violence" do not expressly differentiate based on whether an overt act was required by the statute of conviction. This is true regardless of whether the statute of conviction was a federal or a state law. We do not see a reasoned basis for construing the Guidelines to mean that the advisory range of punishment differs depending upon whether a conspirator to murder a family member of a federal official was prosecuted under state or federal law, even if the state and federal laws had the same essential elements. There is no indication that the Sentencing Commission intended the definition of " conspiracy" as used in Application Note 5 to vary, depending upon whether the conviction was obtained under federal or state law.
We cannot reasonably conclude that the Sentencing Commission intended " conspiracy" within the meaning of Application Note 5 to require an overt act as an element of each and every conspiracy offense. The language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder. Alternatively, we conclude that the generic, contemporary meaning of " conspiracy to commit murder" does not require an overt act. We note the possibility that there is no " generic, contemporary" meaning of " conspiracy to commit murder" in light of the marked differences between the 34 state laws of conspiracy that require an overt act for every offense, on one hand, and the 16 state laws and the numerous federal laws that do not have such a requirement.
We conclude that conspiracy to commit murder, within the meaning of Application Note 5 of § 2L1.2, does not require an overt act as an element of the offense.
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For the foregoing reasons, we AFFIRM the judgment of the district court.