United States v. Pascacio-Rodriguez

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation749 F.3d 353
Docket NumberNo. 12–40264.,12–40264.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Luciano PASCACIO–RODRIGUEZ, Defendant–Appellant.
Decision Date11 April 2014

749 F.3d 353

UNITED STATES of America, Plaintiff–Appellee,
v.
Luciano PASCACIO–RODRIGUEZ, Defendant–Appellant.

No. 12–40264.

United States Court of Appeals,
Fifth Circuit.

April 11, 2014.



James Lee Turner, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S.

[749 F.3d 354]

Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Sarah Beth Landau, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for 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 generic, contemporary meaning of that term; and, therefore, his prior state-court conviction does not constitute a “crime of violence” under the Guidelines.

We conclude that the Guidelines do not require an overt act as an element of conspiracy to commit murder. The district court did not err in imposing the 16–level enhancement, and we affirm.

I

Pascacio–Rodriguez pleaded guilty to violating 8 U.S.C. § 1326(a) and (b) for being unlawfully present in the United States following his deportation. Only his sentence is at issue in this appeal.

Pascacio–Rodriguez had been convicted of conspiracy to commit murder under Nevada state law prior to the time that he was removed from the United States. The Presentence Investigation Report (PSR) recommended a 16–level enhancement under § 2L1.2(b)(1)(A) of the Sentencing Guidelines based on that 2003 Nevada offense. Pascacio–Rodriguez objected, contending that the Nevada statute under which he was convicted did not require proof of an overt act in furtherance of the conspiracy and therefore that the Nevada conspiracy offense was “broader than the contemporary generic definition of ‘conspiracy.’ ”

The district court overruled Pascacio–Rodriguez's objection, noting that a number of federal conspiracy statutes do not require an overt act and concluding that the overt-act requirement was not “an important vital part of the generic definition of ‘conspiracy.’ ” The district court calculated a total offense level of 21 and a criminal history category of VI, but it reduced the criminal history category by one level because the district court concluded that Pascacio–Rodriguez's criminal history had been overrepresented. The corresponding advisory Guidelines range of imprisonment was 70 to 87 months, and, after considering the applicable factors under 18 U.S.C. § 3553(a), the district court sentenced Pascacio–Rodriguez to 70 months of imprisonment. On appeal, Pascacio–Rodriguez contends that the district court erroneously imposed the 16–level enhancement, leading to an incorrect calculation of the Guidelines range. Absent the 16–level enhancement, the advisory Guidelines range would have been 33 to 41 months of imprisonment.

[749 F.3d 355]

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–Rodriguez 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 range of penalties.5Section 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:

[749 F.3d 356]

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

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” 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

[749 F.3d 357]

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 statute 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 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

[749 F.3d 358]

Theoretically, at least, there is more than one approach to construing § 2L1.2(b)(1)(A)(ii). One is to...

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