United States v. Luciano Pascacio-RodriguezUnited States v. Luciano Pascacio-Rodriguez
Case Information
*1 Before WIENER, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Luciano Pascacio-Rodriguez was convicted under
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
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
II
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
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.
court to a minimum of 24 months of imprisonment and a maximum of 72 months of
imprisonment.
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 , 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.” 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. 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. 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.” 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.
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 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, 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, 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.” Because both murder and conspiracy are offenses that were recognized by the 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. 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. 42
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
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);
(conspiracy to violate export regulations). See U.S. S ENTENCING G UIDELINES M ANUAL § 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii)
(2011).
Supreme Court officials);
endanger the safety of an aircraft);
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 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);
that because
to commit fraud offenses, including wire and mail fraud; 49 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. 53
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.” 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. 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);
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
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,” 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.
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. 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.
Notes
[1] U.S. S ENTENCING G UIDELINES M ANUAL § 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]
[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 -
[9]
[10]
Descamps
,
[11] Id . at 2282.
[12]
Id
. (citing the defendant’s conviction under
[13]
Id
. at 2281.
But see United States v. Castleman
, No. 12-1371,
[14]
Descamps
,
[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
,
[21]
See United States v. Najera-Mendoza
,
[22]
[23]
Taylor
,
[24]
Descamps
,
[25]
United States v. Gonzalez-Terrazas
,
[26]
[27]
Shepard
,
[28]
[29]
[30]
See Rodriguez
,
[31] Id. at 552 n.17.
[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 W AYNE R. L A F AVE , C RIMINAL L AW § 2.1(b) (5th ed. 2010))).
[33]
United States v. Herrera
,
[34]
United States v. Esparza-Perez
, 681 F.3d 228, 229 (5th Cir. 2012) (citing
United
States v. Iniguez-Barba
,
[35]
See United States v. Shabani
,
[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,
[37] See id. at 13-15.
[38]
Taylor v. United States
,
[39] Id.
[40]
[41]
[42]
[49]
[50]
[51]
[52]
See
[53]
See
[54] M ODEL P ENAL C ODE § 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] W AYNE R. L A F AVE , S UBSTANTIVE C RIMINAL L AW § 12.2(b) (2d ed. 2003) (citations omitted).
[57] B LACK ’ S L AW D ICTIONARY 351 (9th ed. 2009).
[58]
[60]
[61]
[62]
[63] N.J. S TAT . A NN . § 2C:5-2(d).
[64]
[65]
[66]
[67]
[68]
Rodriguez-Escareno
, 700 F.3d at 753 (quoting
United States v. Santiesteban-
Hernandez
,
[69] Id .
[70]
Id
. (quoting
United States v. Mendez-Casarez
,
[71]
Id
. (citing
United States v. Shabani
,
[72] Id .
[73] Id . at 753-54.
[74] Id . at 754.
[75] Id . at 754 n.2.
[76] U.S. S ENTENCING G UIDELINES M ANUAL § 2L1.2 cmt. n.5 (2011).
[77]
[78]
[79] See supra notes 44-45 and accompanying text.
[80]
But see United States v. Gore
,