United States v. Luciano Pascacio-Rodriguez
2014 U.S. App. LEXIS 6767
| 5th Cir. | 2014Background
- Defendant Luciano Pascacio-Rodriguez pleaded guilty to unlawful reentry under 8 U.S.C. § 1326; only the sentence is on appeal.
- Prior to deportation he had a 2003 Nevada conviction for conspiracy to commit murder (NRS 199.480) under a statute that expressly states an overt-act need not be proven (NRS 199.490).
- The PSR applied a 16‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the Nevada conspiracy conviction was treated as a "crime of violence."
- Pascacio-Rodriguez argued the Nevada statute was broader than the Guidelines’ generic meaning of "conspiracy" because it lacks an overt-act element, so the enhancement should not apply.
- The district court rejected that argument, applied the enhancement, and sentenced him to 70 months; the Fifth Circuit reviews the Guidelines interpretation de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2L1.2’s reference to "conspiring to commit murder" requires an overt act as an element | Pascacio-Rodriguez: "Conspiracy" in the Guidelines adopts the generic, contemporary meaning which requires an overt act, so Nevada conviction (no overt-act element) is not a crime of violence | Government/District Court: Guidelines do not require an overt act; many federal/state statutes and the Commission intended to include conspiracies without overt-act requirements | Held: The Guidelines’ use of "conspiracy" does not require an overt act; conspiracy to commit murder qualifies as a crime of violence for the enhancement |
| Whether the modified categorical approach can be used because the charging document and plea alleged overt acts | Pascacio-Rodriguez: His plea and charging instrument alleged overt acts, which would satisfy the generic offense | Pascacio-Rodriguez/Govt: Descamps prohibits consulting extra-record facts when statute is indivisible; thus only the statute controls, not pleaded acts | Held: Because Nevada statute is indivisible (no overt-act element), Descamps bars using the modified categorical approach; analysis turns on statute/Guidelines meaning |
| Whether the common-law and modern sources support requiring an overt act for "conspiracy to commit murder" | Pascacio-Rodriguez: Modern majority of states require an overt act so generic meaning includes overt-act requirement | Government: Significant federal statutes, Model Penal Code, and many states do not require an overt act; Sentencing Commission likely intended to cover serious conspiracies regardless of overt-act formalism | Held: After surveying sources, the court concludes the generic, contemporary meaning (and § 2L1.2 context) does not require an overt act |
| Whether federal/state conspiracies should be treated differently under § 2L1.2 | Pascacio-Rodriguez: (implied) state convictions without overt-act element should not trigger enhancement | Government: No textual basis in Application Note 5 to distinguish federal vs state conspiracy convictions; similar offenses should be treated alike | Held: No reason to treat state and federal conspiracies differently; Application Note 5 applies to state convictions without overt-act elements |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach unavailable for indivisible statutes)
- Taylor v. United States, 495 U.S. 575 (1990) (use of categorical approach to define generic offenses)
- Shabani v. United States, 513 U.S. 10 (1994) (federal conspiracy § 846 does not require an overt act)
- United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (methodology for deriving generic meanings of non‑common‑law offenses in Guidelines)
- United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012) (declining to import a generic overt-act requirement when Guidelines text plainly covers federal conspiracy to drug trafficking)