United States v. Castro-Gomez, 2015 U.S. App. LEXIS 11597

Defendant Luis Carlos Castro-Gomez pled guilty to illegal reentry after removal under 8 U.S.C. §§ 1326(a), (b) and the PSR applied a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a prior Illinois attempted murder conviction.
Castro‑Gomez challenged classification, arguing Illinois murder (and thus attempted murder) is broader than the generic definition of murder because Illinois allows intent to do great bodily harm rather than requiring at least reckless and depraved indifference.
The district court overruled the objection, concluded Illinois murder corresponds to the generic definition, and imposed a 35‑month sentence.
On appeal, the Tenth Circuit ordered supplemental briefing to address whether the Illinois attempted murder conviction (the actual prior crime) categorically qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The government alternatively argued that, even if Illinois murder is broader, the statutory elements of Illinois attempted murder (when read with Illinois attempt law) require specific intent to kill and thus correspond to the generic attempted‑murder offense.
The Tenth Circuit adopted the Ninth Circuit’s approach in Gomez‑Hernandez: read the state attempt statute together with the substantive offense to determine the elements of the attempted crime, and affirmed the enhancement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Castro‑Gomez’s Illinois attempted murder conviction is a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii)	Illinois murder and thus attempted murder are broader than generic murder because Illinois allows intent to do great bodily harm rather than requiring at least reckless and depraved indifference	The statute for attempted murder, read with the Illinois attempt statute, requires specific intent to kill, matching the generic attempted‑murder definition; so it is a crime of violence	The attempted murder conviction is a crime of violence: Illinois attempt statute plus murder statute require intent to kill, curing any overbreadth and supporting the 16‑level enhancement

United States v. Marrero, 743 F.3d 389 (3d Cir. 2014) (provides the generic‑murder definition referenced)
United States v. Reyes‑Alfonso, 653 F.3d 1137 (10th Cir. 2011) (standard of review and guidelines interpretation)
United States v. Garcia‑Caraveo, 586 F.3d 1230 (10th Cir. 2009) (state murder qualifies only if it corresponds to the generic definition)
United States v. Pursley, 577 F.3d 1204 (10th Cir. 2009) (appellate courts may affirm on alternative grounds raised on appeal)
United States v. Gomez‑Hernandez, 680 F.3d 1171 (9th Cir. 2012) (state attempt statute can cure an overbroad intent element in the substantive offense)
United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) (distinguishes overbroad conduct requirements from overbroad intent requirements)