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United States v. Pascacio-Rodriguez

United States Court of Appeals, Fifth Circuit

April 11, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
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.

OPINION

Page 354

PRISCILLA R. OWEN, Circuit Judge

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.

I

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.

Page 355

II


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