United States v. Luciano Pascacio-Rodriguez

Case: 12-40264 Document: 00512593851 Page: 1 Date Filed: 04/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
April 11, 2014
No. 12-40264
Lyle W. Cayce
Clerk
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
Before WIENER, DENNIS, and OWEN, Circuit Judges.
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
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No. 12-40264
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-
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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.
II
The 16-level enhancement at issue applies if the defendant was deported
after he had been convicted of “a crime of violence.”1 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,2 and includes
“conspiring” to commit murder.3
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,4 and section 200.030 defined the degrees of murder and the
1
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (2011).
2
Id. § 2L1.2 cmt. n.1(B)(iii). The definition provides in its entirety:
“Crime of violence” means any of the following offenses under federal, state, or
local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including where consent to the conduct is not given or is not legally
valid, such as where consent to the conduct is involuntary, incompetent, or
coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a dwelling, or any other offense
under federal, state, or local law that has as an element the use, attempted use,
or threatened use of physical force against the person of another.
Id.
3
Id. § 2L1.2 cmt. n.5. The comment provides as follows: “Aiding and Abetting,
Conspiracies, and Attempts.—Prior convictions of offenses counted under subsection (b)(1)
include the offenses of aiding and abetting, conspiring, and attempting, to commit such
offenses.” Id.
4
NEV. REV. STAT. § 200.010 (2003) (amended 2005). The 2003 version of the statute
provides:
3
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range of penalties.5 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.6 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.”7
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
Murder is the unlawful killing of a human being, with malice aforethought,
either express or implied, or caused by a controlled substance which was sold,
given, traded or otherwise made available to a person in violation of chapter 453
of NRS. The unlawful killing may be effected by any of the various means by
which death may be occasioned.
Id.
5
NEV. REV. STAT. § 200.030 (2001) (amended 2007).
6
NEV. REV. STAT. § 199.480 (2003). Pascacio-Rodriguez was sentenced by the Nevada
court to a minimum of 24 months of imprisonment and a maximum of 72 months of
imprisonment.
7
NEV. REV. STAT. § 199.490 (2003).
4
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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.8
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,9 which considered the meaning of “a violent felony”
8
The signed plea agreement states in pertinent part: “I hereby agree to plead guilty to:
one (1) count of CONSPIRACY TO COMMIT MURDER (Felony - NRS 200.010, 200.030,
199.480) and one (1) count of DISCHARGING FIREARM OUT OF MOTOR VEHICLE (Felony
— NRS 202.287), as more fully alleged in the charging document attached hereto as Exhibit
‘1'.” (emphasis added).
9
133 S. Ct. 2276 (2013).
5
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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.”10 Only the statute of conviction may
be consulted if the statute is indivisible.11
The state conviction at issue in Descamps was for burglary under
California law.12 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.”13 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.14 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
10
Descamps, 133 S. Ct. at 2281-82 (construing the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)).
11
Id. at 2282.
12
Id. (citing the defendant’s conviction under California Penal Code Ann. § 459 (West
2010)).
13
Id. at 2281. But see United States v. Castleman, No. 12-1371, 2014 WL 1225196, at
*4-6 (U.S. Mar. 26, 2014) (explaining that when Congress uses common-law terms, it “intends
to incorporate the well-settled meaning” of the terms, “except where that meaning does not
fit” (internal quotation marks omitted) and using the common-law meaning of “force” in
construing the ACCA’s definition of “a misdemeanor crime of domestic violence”); Shepard v.
United States, 544 U.S. 13, 26 (2005) (employing the modified categorical approach that
permitted sentencing courts to consult certain restricted parts of the record of the prior
conviction to determine if the conviction was for a generic crime enumerated in the ACCA);
Taylor v. United States, 495 U.S. 575, 599-602 (1990) (adopting a formal categorical approach
based on the elements of the generic crime).
14
Descamps, 133 S. Ct. at 2285-86.
6
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be considered to be a conviction for a violent felony.15 The Supreme Court
disagreed, holding that “whether he [the defendant] admitted to breaking and
entering is irrelevant.”16
In Descamps, the Supreme Court described a divisible statute as one that
“comprises multiple, alternative versions of the crime,”17 while an indivisible
statute is “one not containing alternative elements.”18 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.”19 We must therefore determine whether the Guidelines
require an overt act as an element of a conspiracy to commit murder.
III
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.20
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
15
Id. at 2282-83.
16
Id. at 2286.
17
Id. at 2284.
18
Id. at 2281.
19
Id. at 2285.
20
United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011) (per curiam) (“[T]his
court reviews de novo the district court’s interpretation and application of the Guidelines,
including whether a defendant’s prior conviction qualifies as a ‘crime of violence’ within the
meaning of [U.S.S.G. § 2L1.2].” (second alteration in original) (quoting United States v.
Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011)) (internal quotation marks omitted)).
7
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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.
A
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,21 as explicated by
the Supreme Court in Taylor v. United States,22 a case that, like Descamps,
construed the Armed Career Criminal Act (ACCA).23 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.”24 In a “narrow range of cases,” we may employ an
21
See United States v. Najera-Mendoza, 683 F.3d 627, 629 (5th Cir. 2012) (citing United
States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012)). But see United States v.
Charles, 301 F.3d 309, 313-14 (5th Cir. 2002) (en banc) (holding that, in applying U.S.S.G.
§ 4B1.2, the court will consider the elements of the charges against a defendant, even if they
differ from the elements of the statute of conviction, because the commentary to U.S.S.G.
§ 4B1.2 “states that [o]ther offenses are included as crimes of violence if . . . the conduct set
forth (i.e., expressly charged) in the count of which the defendant was convicted . . . by its
nature, presented a serious potential risk of physical injury to another” (internal quotation
marks omitted) (citing United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992))).
22
495 U.S. 575 (1990).
23
Taylor, 495 U.S. at 577 (“In this case we are called upon to determine the meaning
of the word ‘burglary’ as it is used in . . . 18 U.S.C. § 924(e).”); see also Descamps, 133 S. Ct.
at 2281-82.
24
Descamps, 133 S. Ct. at 2281.
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exception to the categorical approach, known as the modified categorical
approach,25 which is derived from the Supreme Court’s decision in Shepard v.
United States,26 another case in which the Court construed the ACCA.27 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.”28
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,29 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.”30 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.”31
Because both murder and conspiracy are offenses that were recognized by the
25
United States v. Gonzalez-Terrazas, 529 F.3d 293, 297 (5th Cir. 2008).
26
544 U.S. 13 (2005).
27
Shepard, 544 U.S. at 15-16.
28
NEV. REV. STAT. § 199.490 (2003).
29
711 F.3d 541 (5th Cir. 2013) (en banc).
30
See Rodriguez, 711 F.3d at 552.
31
Id. at 552 n.17.
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common law,32 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.”33
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.34 At common law, it was not necessary to allege or prove an act in
furtherance of a conspiracy.35 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.36 Accordingly, the Supreme Court has
not read an overt-act requirement into federal conspiracy offenses.37 We note
32
See id. at 558 (noting that “by the 1600’s . . . judges . . . had created the felon[y] of
murder” and later created conspiracy in 1664 (quoting WAYNE R. LAFAVE, CRIMINAL LAW
§ 2.1(b) (5th ed. 2010))).
33
United States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011) (quoting United States v.
Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011)) (internal quotation marks omitted); see
also Hernandez-Galvan, 632 F.3d at 196 (applying the generic, contemporary meaning test to
a defendant’s attempt conviction to determine whether the district court erred in applying the
§ 2L1.2(b)(1)(A)(ii) enhancement).
34
United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 2012) (citing United
States v. Iniguez-Barba, 485 F.3d 790, 791 (5th Cir. 2007)); United States v. Tellez-Martinez,
517 F.3d 813, 815 (5th Cir. 2008) (per curiam).
35
See United States v. Shabani, 513 U.S. 10, 13-14 (1994) (“We have consistently held
that the common law understanding of conspiracy ‘does not make the doing of any act other
than the act of conspiring a condition of liability.’” (quoting Nash v. United States, 229 U.S.
373, 378 (1913))).
36
See id. at 13 (“Nash and Singer follow the settled principle of statutory construction
that, absent contrary indications, Congress intends to adopt the common law definition of
statutory terms.”); see also United States v. Castleman, No. 12-1371, 2014 WL 1225196, at *4-5
(U.S. Mar. 26, 2014) (defining the term “physical force” in the ACCA in reference to its
“established common-law meaning”).
37
See id. at 13-15.
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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.38 The Court discerned that Congress instead
intended “burglary” to have a “generic, contemporary meaning” when that term
was used in the ACCA.39 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.40 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
38
Taylor v. United States, 495 U.S. 575, 598 (1990).
39
Id.
40
18 U.S.C. § 371 (“If two or more persons conspire either to commit any offense against
the United States, or to defraud the United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not more than five years, or both.”).
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reveals that at least 15 of such provisions require an overt act,41 while at least
99 do not.42
41
18 U.S.C. § 793(g) (conspiracy to gather, transmit, or lose defense information); id.
§ 794(c) (conspiracy to gather or deliver defense information to aid a foreign government); id.
§ 831(a)(2), (8) (conspiracy to obtain nuclear material without authorization); id. § 1029(b)(2)
(conspiracy to commit fraud or a related activity in connection with access devices); id.
§ 1365(e) (conspiracy to tamper with consumer products); id. § 1511 (conspiracy to obstruct
state or local law enforcement with intent to facilitate an illegal gambling business); id.
§ 1832(a)(5) (conspiracy to commit theft of trade secrets); id. § 2153(b) (conspiracy to destroy
war material, war premises, or war utilities); id. § 2154(b) (conspiracy to produce defective war
material, war premises, or war utilities); id. § 2155(b) (conspiracy to destroy national-defense
materials, national-defense premises, or national-defense utilities); id. § 2156(b) (conspiracy
to produce defective national-defense material, national-defense premises, or national-defense
utilities); id. § 2388(b) (conspiracy to commit certain nonviolent acts affecting the armed forces
during times of war); 42 U.S.C. § 1761(o)(3) (conspiracy to violate certain provisions regulating
the summer food service program for children); 47 U.S.C. § 509(a)(5) (conspiracy to influence,
prearrange, or predetermine the outcome of a radio contest); 49 U.S.C. § 46505(e) (conspiracy
to carry a weapon or explosive on an aircraft).
42
2 U.S.C. § 441h (conspiracy to make certain fraudulent misrepresentations in a
federal election campaign); 7 U.S.C. § 192(f)-(g) (conspiracy by packers or swine contractors
to engage in certain unlawful practices); id. § 2303(f) (conspiracy to commit unfair trade
practices affecting producers of agricultural products); 8 U.S.C. § 1253(c) (conspiracy to
prevent or hamper the removal of an alien subject to deportation); id. § 1324(a)(1)(A)(v)(I)
(conspiracy to bring in or harbor certain aliens); id. § 1327 (conspiracy to aid or assist certain
aliens to enter the United States); 12 U.S.C. § 617 (conspiracy to use the credit, funds, or the
power of certain corporations to control the prices of commodities); 15 U.S.C. § 1 (conspiracy
to restrain interstate trade or commerce); id. § 2 (conspiracy to monopolize trade); id. § 3
(conspiracy to restrain or monopolize trade or commerce in a Territory of the United States
or in the District of Columbia); id. § 8 (conspiracy to restrain import trade); id. § 76 (conspiracy
to import restricted items during times of foreign war); id. § 77 (conspiracy to furnish facilities
or privileges to ships or persons contrary to a presidential proclamation); id. § 714m(d)
(conspiracy to make false statements, commit embezzlement, commit larceny, or convert
property in relation to the Commodity Credit Corporation); id. § 1644(a)-(b) (conspiracy to
commit credit card fraud or to transport “a counterfeit, fictitious, altered, forged, lost, stolen,
or fraudulently obtained credit card” in interstate or foreign commerce); id. § 1693n(b)(1)-(2)
(conspiracy to use or transport in interstate or foreign commerce a counterfeit, fictitious,
altered, forged, lost, stolen, or fraudulently obtained debit instrument); 16 U.S.C. § 831t(c)
(conspiracy to defraud the Tennessee Valley Authority); 18 U.S.C. § 32(a)(1)-(5), (7)-(8)
(conspiracy to commit certain acts involving the destruction of aircraft or aircraft facilities);
id. § 32(b)(2)-(4) (conspiracy to destroy or cause damage to a civil aircraft registered in a
country other than the United States); id. § 37(a)(2) (conspiracy to damage the facilities of an
international airport); id. § 38(a)(3) (conspiracy to commit fraud involving aircraft or space
vehicle parts in interstate or foreign commerce); id. § 43(a)(2)(A), (C) (conspiracy to damage
or interfere with the operations of an animal enterprise by property damage); id. § 175(a)
(conspiracy to develop, produce, stockpile, transfer, acquire, retain, or possess any biological
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agent, toxin, or delivery system for use as a weapon or to assist a foreign state or an
organization to do so); id. § 175c(c)(1) (conspiracy to “knowingly produce, engineer, synthesize,
acquire, transfer directly or indirectly, receive, possess, import, [or] export . . . variola virus”);
id. § 224 (conspiracy to commit bribery in sporting contests); id. § 229(a)(2) (conspiracy to
“develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain,
own, [or] possess” a chemical weapon); id. § 286 (conspiracy to defraud the United States with
respect to claims); id. § 521(c)(1), (3) (providing a ten-year sentence enhancement for
conspiracy to commit a drug-trafficking crime while belonging to a criminal street gang); id.
§ 555(d) (conspiracy to commit certain offenses related to border tunnels or passages); id.
§ 670(a)(6) (conspiracy to commit theft of medical products); id. § 757 (conspiracy to procure
the escape or to aid escaped prisoners of war or enemy aliens); id. § 799 (conspiracy to violate
regulations of the National Aeronautics and Space Administration); id. § 832(a), (c) (conspiracy
to “willfully participate[] in or knowingly provide[] material support or resources” to a foreign
terrorist power’s nuclear weapons program or other weapons-of-mass-destruction program and
conspiracy to “develop or possess a radiological weapon”); id. § 1028(f) (conspiracy to commit
fraud or a related activity in connection with identification documents, authentication
features, and information); id. § 1030(a)(1)-(6), (b) (conspiracy to commit fraud or a related
crime in connection with computers); id. § 1037(a)(5) (conspiracy to falsely represent oneself
as the registrant of five or more Internet Protocol addresses and to initiate commercial
electronic mail messages from those addresses); id. § 1349 (conspiracy to commit mail fraud
or another fraud offense under chapter 63 of title 18); id. § 1362 (conspiracy to damage or
interfere with communication lines, stations, or systems “operated or controlled by the United
States, or used or intended to be used for military or civil defense functions of the United
States”); id. § 1363 (conspiracy to destroy or injure buildings or property within special
maritime or territorial jurisdiction); id. § 1366 (conspiracy to destroy an energy facility); id.
§ 1368 (conspiracy to harm animals used in law enforcement); id. § 1389(a)(1)-(2) (conspiracy
to knowingly destroy or injure the property of a United States serviceman or an immediate
family member on account of the serviceman’s status); id. § 1466A (conspiracy to commit
offenses related to possession and distribution of obscene visual representations of the sexual
abuse of children); id. § 1512(b)-(d), (k) (conspiracy to tamper with a witness, victim, or
informant); id. § 1513(b), (e)-(f) (conspiracy to retaliate against a witness, victim, or informant
through property damage or interference with employment or livelihood); id. § 1521
(conspiracy to retaliate against a federal judge or federal law enforcement officer by false claim
or slander of title); id. § 1594(b) (conspiracy to commit a number of offenses involving human
trafficking, some of which are nonviolent); id. § 1594(c) (conspiracy to recruit persons for
human trafficking or to benefit financially from human trafficking); id. § 1956(h) (conspiracy
to launder money or to engage in monetary transactions in property derived from specified
unlawful activity); id. § 1958(a) (conspiracy to use interstate commerce facilities to further the
commission of a murder for hire); id. § 1962(d) (conspiracy to engage in prohibited
racketeering activities); id. § 1992(a)(5), (8)-(10) (conspiracy to commit certain nonviolent acts
against a railroad carrier or mass transportation system); id. § 2252(b) (conspiracy to conduct
certain activities related to child pornography); id. § 2252A(b) (conspiracy to conduct certain
activities relating to material containing child pornography); id. § 2260(b), (c)(2) (conspiracy
to commit certain acts relating to transportation of “any visual depiction of a minor engaging
in sexually explicit conduct” with intent that such a depiction will be imported into the United
States); id. § 2271 (conspiracy to destroy a vessel with intent to injure certain insurers or
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underwriters); id. § 2280(a)(1)(C)-(F), (H) (conspiracy to endanger a ship); id. § 2281(a)(1)(C)-
(D), (F) (conspiracy to endanger the safety of a maritime fixed platform); id. § 2285 (conspiracy
to operate a submersible vessel or semi-submersible vessel without nationality); id. § 2291 (1)-
(3), (5), (8)-(9) (conspiracy to destroy a vessel or maritime facility); id. § 2320(a) (conspiracy
to traffic in counterfeit goods or services); id. § 2332g(a), (c)(1) (conspiracy to “knowingly
produce, construct, otherwise acquire, transfer directly or indirectly, receive, possess, import,
[or] export” a missile system designed to destroy aircraft); id. § 2332h(a), (c)(1) (conspiracy to
“knowingly produce, construct, otherwise acquire, transfer directly or indirectly, receive,
possess, import, [or] export” a radiological dispersal device); id. § 2339B(a)(1) (conspiracy to
provide material support or resources to designated foreign terrorist organizations); id.
§ 2339C (conspiracy to finance terrorism); id. § 2385 (conspiracy to advocate the overthrow of
the United States government); id. § 2423(e) (conspiracy to commit certain offenses involving
traveling or transporting others for the purpose of engaging in illicit sexual conduct with a
minor); id. § 2442 (conspiracy to recruit or use child soldiers); 19 U.S.C. § 1590 (conspiracy to
commit aviation smuggling); 21 U.S.C. § 846 (conspiracy to commit a drug crime); id. § 960a
(conspiracy to violate certain drug-trafficking provisions with intent to provide aid to foreign
terrorist groups); id. § 963 (conspiracy to commit offenses related to the import or export of a
controlled substance); id. § 1904(c)(2) (conspiracy to violate provisions regarding transactions
related to international narcotics traffickers); 22 U.S.C. § 8512(c) (conspiracy to violate
provisions regarding economic sanctions against Iran); id. § 8513(c)(3), (d)(2) (conspiracy to
violate regulations regarding financial institutions that engage in certain transactions related
to Iran); id. § 8513a(g)(2) (conspiracy to violate provisions related to the imposition of
sanctions with respect to the financial sector of Iran); id. § 8781(b) (conspiracy to violate
certain provisions related to Iran and Syria); id. § 8809(b) (conspiracy to violate statutory
provisions or regulations related to Iran freedom and counterproliferation); 26 U.S.C. § 7214
(conspiracy by an officer or employee of the United States to defraud the United States); 31
U.S.C. § 3729(a)(1)(C) (conspiracy to make false claims for payment against the United States
government); id. § 5332 (conspiracy to smuggle currency into or out of the United States); 38
U.S.C. § 1987 (conspiracy to commit fraud related to veterans’ insurance benefits); 42 U.S.C.
§ 1973i(c) (conspiracy to encourage false registration to vote or illegal voting); id. § 1973j(c)
(conspiracy to interfere with voting rights); id. § 2272(a)-(b) (conspiracy to violate certain
provisions regarding the development and control of atomic energy); id. § 2273(a) (conspiracy
to violate provisions or regulations governing the development and control of atomic energy
for which no other criminal penalty is specified); id. § 2274 (conspiracy to communicate,
transmit, or disclose restricted data related to atomic energy); id. § 2275 (conspiracy to receive
restricted data related to atomic energy); id. § 2277 (conspiracy to communicate or receive
restricted data related to atomic energy without authorization); id. § 2284 (conspiracy to
sabotage nuclear facilities or fuel); id. § 15544(a) (conspiracy to deprive voters of a fair
election); 46 U.S.C. § 56102 (conspiracy to violate certain controls during war or national
emergency); id. § 70506 (conspiracy to manufacture, distribute, or posses a controlled
substance on a vessel); 49 U.S.C. § 32703(4) (conspiracy to commit certain acts relating to
odometers); id. § 60123(b) (conspiracy to damage or destroy a gas pipeline facility or a
hazardous liquid pipeline facility); 50 U.S.C. § 167k (conspiracy to violate provisions regulating
helium gas); id. § 1705 (conspiracy to violate any license, order, regulation, or prohibition
issued under the chapter governing international emergency economic powers); id. app. § 462
(conspiracy to interfere with the administration of the selective service); id. app. § 2410
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Among the federal statutes that deal with conspiracies to commit crimes that
arguably would be within the definition of a “crime of violence” in § 2L1.2,43 eight
require an overt act,44 while 43 do not.45
(conspiracy to violate export regulations).
43
See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii)
(2011).
44
18 U.S.C. § 351(d) (conspiracy to kill or kidnap certain congressional, cabinet, and
Supreme Court officials); id. § 831(a)(1), (3)-(6), (8) (conspiracy to use or threaten violence to
conduct a prohibited transaction involving nuclear materials); id. § 956 (conspiracy to kill,
kidnap, maim, or injure persons or damage property in a foreign country); id. § 1117
(conspiracy to commit murder); id. § 1201(c) (conspiracy to kidnap); id. § 1751(d) (conspiracy
to kidnap or kill the president or certain presidential staff); id. § 2118(d) (conspiracy to commit
robbery or burglary involving a controlled substance); id. § 2332(b) (conspiracy to kill a United
States national while the conspirator is outside of the United States).
45
18 U.S.C. § 32(a)(6), (8) (conspiracy to commit certain acts of violence likely to
endanger the safety of an aircraft); id. § 32(b)(1), (4) (conspiracy perform “an act of violence
against an individual on board any civil aircraft registered in a country other than the United
States, if such act is likely to endanger the safety of that aircraft”); id. § 33(a) (conspiracy to
disable or incapacitate any driver or person employed in connection with the operation or
maintenance of a motor vehicle); id. § 37(a)(1) (conspiracy to commit acts of violence at
international airports); id. § 43(a)(2)(B)-(C) (conspiracy to damage or interfere with the
operations of an animal enterprise through threats of bodily injury); id. § 81 (conspiracy to
commit arson within special maritime and territorial jurisdiction); id. § 115 (conspiracy to
influence, impede, or retaliate against a federal official by threatening, injuring, or killing a
family member); id. § 175c(a), (c)(2) (conspiracy to use or threaten to use variola virus); id.
§ 229(a) (conspiracy to use or threaten to use a chemical weapon); id. § 241 (conspiracy “to
injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth,
Possession, or District in the free exercise or enjoyment of any right or privilege secured to him
by the Constitution or laws of the United States, or because of his having so exercised the
same”); id. § 372 (conspiracy to impede or injure an officer of the United States); id. § 844(m)
(conspiracy to commit a felony using fire or any explosive); id. § 892(a) (conspiracy to make an
extortionate extension of credit); id. § 894(a) (conspiracy to collect extensions of credit by
extortionate means); id. § 924(o) (conspiracy to commit a crime of violence or a drug-trafficking
crime while carrying a firearm); id. § 1030(a)(7), (b) (conspiracy to commit extortion by
threatening to damage a computer, impair the confidentiality of information on a computer,
or access information on a protected computer); id. § 1091 (conspiracy to commit genocide);
id. § 1203(a) (conspiracy to take hostages); id. § 1389(a)(1), (3) (conspiracy to assault or batter
a United States serviceman or an immediate family member on account of the serviceman’s
status); id. § 1512(a), (k) (conspiracy to kill or use physical force or the threat of physical force
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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;46 conspiracy to commit racketeering offenses under
the Racketeer Influenced and Corrupt Organizations Act (RICO);47 conspiracy
to commit violent crimes in aid of racketeering activity under RICO;48 conspiracy
to tamper with the judicial process); id. § 1513(a)-(b), (f) (conspiracy to kill, injure, or threaten
to injure, in retaliation for testimony or assistance to law enforcement); id. § 1594(b)
(conspiracy to commit a number of offenses involving human trafficking, many of which
include enumerated crimes of violence or involve the element of the “use, attempted use, or
threatened use of physical force against the person of another”); id. § 1752(a)(4) (conspiracy
to engage in any act of physical violence in a restricted government building or its grounds);
id. § 1792 (conspiracy to cause mutiny or riot at a federal prison); id. § 1951(a) (conspiracy to
interfere with commerce by threats or violence); id. § 1959 (conspiracy to commit violent
crimes in aid of racketeering activity); id. § 1992(a)(1)-(4), (6)-(7), (10) (conspiracy to commit
a terrorist attack or other violent act against a railroad carrier or mass transportation
system); id. § 2192 (conspiracy to incite seamen to revolt or mutiny); id. § 2251 (conspiracy to
commit various offenses relating to sexual exploitation of a child); id. § 2280(a)(1)(A)-(B), (G),
(H) (conspiracy to commit acts of violence likely to endanger safe maritime navigation); id.
§ 2281(a)(1)(A)-(B), (E)-(F) (conspiracy to commit violent acts that endanger the safety of a
maritime fixed platform); id. § 2291(4), (6)-(7), (9) (conspiracy to interfere with the operation
of a vessel or maritime facility using violence); id. § 2332a (conspiracy to use weapons of mass
destruction); id. § 2332b (conspiracy to commit acts of terrorism transcending national
boundaries); id. § 2332f(a)(1)(A) (conspiracy to deliver, place, discharge, or detonate an
explosive device in certain public places and government facilities with intent to cause death
or serious bodily injury); id. § 2332g(a), (c)(2) (conspiracy to use or to possess and threaten to
use a missile system designed to destroy aircraft); id. § 2332h(a), (c)(1)-(2) (conspiracy to use
or to possess and threaten to use a radiological dispersal device); id. § 2340A (conspiracy to
torture); id. § 2384 (conspiracy to “overthrow, put down, or . . . destroy by force the
Government of the United States”); id. § 2441 (conspiracy to commit war crimes); 42 U.S.C.
§ 2272(b) (conspiracy to use or to possess and threaten to use any atomic weapon); 49 U.S.C.
§ 46502 (conspiracy to commit aircraft piracy); 49 U.S.C. § 46504 (conspiracy to interfere with
flight crew members and attendants through assault or intimidation).
46
See 8 U.S.C. § 1324(a)(1)(A)(v)(I).
47
18 U.S.C. § 1962(d); see Salinas v. United States, 522 U.S. 52, 63-64 (1997) (holding
that because § 1962(d) does not contain an overt-act requirement in the statutory text, the
government is not required to prove that an overt act occurred).
48
18 U.S.C. § 1959.
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to commit fraud offenses, including wire and mail fraud;49 conspiracy to commit
drug-related offenses;50 and conspiracy to fix prices in violation of § 1 of the
Sherman Act.51
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,52 while at least nine
do not.53
49
Id. § 1349; see United States v. Fishman, 645 F.3d 1175, 1186 (10th Cir. 2011) (“[A]
conspiracy to commit wire and/or mail fraud does not require proof of an overt act.”).
50
21 U.S.C. § 846; see United States v. Shabani, 513 U.S. 10, 13-15 (1994).
51
15 U.S.C. § 1; see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59
(1940) (“[I]t is . . . well settled that conspiracies under the Sherman Act are not dependent on
any overt act other than the act of conspiring.” (citing Nash v. United States, 229 U.S. 373, 378
(1913))).
52
See 18 U.S.C. § 351(d) (conspiracy to kill or kidnap certain congressional, cabinet, and
Supreme Court officials); id. § 956 (conspiracy to kill, kidnap, maim, or injure persons in a
foreign country); id. § 1117 (conspiracy to commit murder); id. § 1751(d) (conspiracy to kidnap
or kill the President or certain presidential staff); id. § 2332(b) (conspiracy to kill a United
States national while the conspirator is outside of the United States).
53
See 18 U.S.C. § 115 (conspiracy to influence, impede, or retaliate against a federal
official by threatening, injuring, or killing a family member); id. § 1091(d) (conspiracy to kill
for purposes of genocide); id. § 1512(a)(1), (k) (conspiracy to kill to tamper with the judicial
process); id. § 1513(a), (f) (conspiracy to kill in retaliation for testimony or assistance to law
enforcement); id. § 1959 (conspiracy to commit violent crimes, including murder, in aid of
racketeering activity); id. § 1992(a)(7), (10) (conspiracy to “commit[] an act, including the use
of a dangerous weapon, with the intent to cause death or serious bodily injury” to a person on
certain mass-transit property); id. § 2280(a)(1)(G)-(H) (conspiracy to injure or kill a person in
connection with certain acts jeopardizing maritime navigation); id. § 2281(a)(1)(E)-(F)
(conspiracy to injure or kill a person in connection with certain acts jeopardizing a maritime
fixed platform); id. § 2332b(a)(1)(A), (c) (conspiracy to kill in connection with an act of
terrorism transcending national boundaries).
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The Model Penal Code’s general conspiracy provision does not require an
overt act for first- or second-degree felonies.54 The Model Penal Code provides
that murder is a first-degree felony;55 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.”56 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.”57 It appears that 34 states
require an overt act as an element of all criminal conspiracies,58 while 13 states
54
MODEL PENAL CODE § 5.03(5) (1962) (“Overt Act. No person may be convicted of
conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt
act in pursuance of such conspiracy is alleged and proved to have been done by him or by a
person with whom he conspired.”).
55
Id. § 210.2(2).
56
WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 12.2(b) (2d ed. 2003) (citations
omitted).
57
BLACK’S LAW DICTIONARY 351 (9th ed. 2009).
58
ALA. CODE § 13A-4-3(a) (2013); ALASKA STAT. ANN. § 11.31.120(a) (West 2013); ARK.
CODE ANN. § 5-3-401(2) (West 2013); CAL. PENAL CODE § 184 (West 2013); COLO. REV. STAT.
§ 18-2-201(2) (West 2013); CONN. GEN. STAT. ANN. § 53a-48(a) (West 2013); GA. CODE ANN.
§ 16-4-8 (West 2013); HAW. REV. STAT. § 705-520(2) (West 2013); IDAHO CODE ANN. § 18-1701
(West 2013); 720 ILL. COMP. STAT. ANN. 5/8-2(a) (West 2013); IND. CODE ANN. § 35-41-5-2(b)
(West 2013); IOWA CODE ANN. § 706.1(3) (West 2013); KAN. STAT. ANN. § 21-5302(a) (West
2013); KY. REV. STAT. ANN. § 506.050(1) (West 2013); LA. REV. STAT. ANN. § 14:26(A) (2013);
ME. REV. STAT. ANN. tit. 17-A, § 151(4) (2013); MINN. STAT. ANN. § 609.175(2) (West 2013); MO.
ANN. STAT. § 564.016(4) (West 2013); MONT. CODE ANN. § 45-4-102(1) (2013); NEB. REV. STAT.
§ 28-202(1)(b) (2013); N.H. REV. STAT. ANN. § 629:3(I) (2013); N.Y. PENAL LAW § 105.20
(McKinney 2013); N.D. CENT. CODE ANN. § 12.1-06-04(1) (West 2013); OHIO REV. CODE ANN.
§ 2923.01(B) (West 2013); OKLA. STAT. ANN. tit. 21, § 423 (West 2013); 18 PA. CONS. STAT. ANN.
§ 903(e) (West 2013); S.D. CODIFIED LAWS § 22-3-8 (2013); TENN. CODE ANN. § 39-12-103(d)
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do not require an overt act for any conspiracy offense.59 The three remaining
states—Arizona, New Jersey, and Utah—do not require an overt act for certain
serious crimes.60 In Arizona, no overt act is required “if the object of the
conspiracy was to commit any felony upon the person of another,”61 and both
first- and second-degree murder are felonies in Arizona.62 In New Jersey, no
overt act is required for “conspiracy to commit . . . a crime of the first or second
degree,”63 and “[m]urder is a crime of the first degree.”64 In Utah, no overt act
is required when “the offense is a capital felony, a felony against the person,
arson, burglary, or robbery.”65 Murder is a first-degree felony in Utah.66
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
(West 2013); TEX. PENAL CODE ANN. § 15.02(a)(2) (West 2013); VT. STAT. ANN. tit. 13, § 1404(b)
(West 2013); WASH. REV. CODE ANN. § 9A.28.040(1) (West 2013); W. VA. CODE ANN. § 61-10-31
(West 2013); WIS. STAT. ANN. § 939.31 (West 2013); WYO. STAT. ANN. § 6-1-303(a) (West 2013).
59
DEL. CODE ANN. tit. 11, §§ 511(1), 512(1), 513(1) (West 2013); FLA. STAT. ANN.
§ 777.04(3) (West 2013); MD. CODE ANN., CRIM. LAW § 1-203 (West 2013); MICH. COMP. LAWS
ANN. § 750.157a (West 2013); MISS. CODE ANN. § 97-1-1(1)(a), (h) (West 2013); NEV. REV. STAT.
ANN. §§ 199.480, 199.490 (West 2013); N.M. STAT. ANN. § 30-28-2(A) (West 2013); OR. REV.
STAT. ANN. § 161.450(1) (West 2013); S.C. CODE ANN. § 16-17-410 (2013); VA. CODE ANN. §
18.2-22(a) (West 2013); Commonwealth v. Cerveny, 439 N.E.2d 754, 759 (Mass. 1982) (stating
that no overt act is necessary for a conspiracy conviction); State v. Bindyke, 220 S.E.2d 521,
526 (N.C. 1975) (same); State v. Brown, 486 A.2d 595, 601 (R.I. 1985) (same).
60
ARIZ. REV. STAT. ANN. § 13-1003(A) (2013); N.J. STAT. ANN. § 2C:5-2(d) (West 2013);
UTAH CODE ANN. § 76-4-201 (West 2013).
61
ARIZ. REV. STAT. ANN. § 13-1003(A).
62
Id. §§ 13-1104 to -1105.
63
N.J. STAT. ANN. § 2C:5-2(d).
64
Id. § 2C:11-3(b)(1).
65
UTAH CODE ANN. § 76-4-201.
66
Id. § 76-5-203(3)(a).
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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.
B
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,67 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.”68 In Rodriguez-Escareno, the defendant had a prior conviction
under 21 U.S.C. § 846 for conspiracy to commit a drug trafficking offense.69 We
noted that, although “‘most jurisdictions’ require proof of an overt act to
establish a conspiracy,”70 no overt act is required for conviction of a conspiracy
under § 846.71 The defendant argued that, because there was no overt-act
67
700 F.3d 751 (5th Cir. 2012).
68
Rodriguez-Escareno, 700 F.3d at 753 (quoting United States v. Santiesteban-
Hernandez, 469 F.3d 376, 379 (5th Cir. 2006)).
69
Id.
70
Id. (quoting United States v. Mendez-Casarez, 624 F.3d 233, 240 (5th Cir. 2010)).
71
Id. (citing United States v. Shabani, 513 U.S. 10, 13-14 (1994)).
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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.”72 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.”73 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.”74
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,”75
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,”76 does not
draw a distinction between federal and state crimes and does not reasonably
permit courts to draw such a distinction.
72
Id.
73
Id. at 753-54.
74
Id. at 754.
75
Id. at 754 n.2.
76
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.5 (2011).
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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;77 conspiracy to kill
a witness, victim, or informant to prevent testimony or in retaliation for
testimony;78 and other conspiracies aimed at causing death or serious bodily
injury79 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
77
18 U.S.C. § 115.
78
Id. §§ 1512(a), (k), 1513(a), (f).
79
See supra notes 44-45 and accompanying text.
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5 to vary, depending upon whether the conviction was obtained under federal
or state law.
C
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.80 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.
* * *
For the foregoing reasons, we AFFIRM the judgment of the district court.
80
But see United States v. Gore, 636 F.3d 728, 745 (5th Cir. 2011) (Higginbotham, J.,
concurring) (observing in a case construing the residual clause of the ACCA regarding a Texas
conviction for aggravated robbery, and not construing the Guidelines, that “[i]n my view, the
generic, contemporary definition of a criminal conspiracy includes a requirement that at least
one of the conspirators take an overt act in furtherance of the agreement”).
23