United States v. Martinez-Cruz

• Decision Date: 12 September 2016
• Docket Number: No. 15-2167,15-2167
• Citation: 836 F.3d 1305
• Parties: United States of America, Plaintiff-Appellee, v. Jesus Domingo Martinez-Cruz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

836 F.3d 1305

United States of America, Plaintiff-Appellee,

v.Jesus Domingo Martinez-Cruz, Defendant-Appellant.

No. 15-2167

United States Court of Appeals, Tenth Circuit.

Filed September 12, 2016

Caleb Kruckenberg, Assistant Federal Public Defender, Office of the Federal Public Defender, Las Cruces, New Mexico, for Defendant-Appellant.

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with him on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

EBEL

, Circuit Judge.

INTRODUCTION

This case involves one narrow, but complicated, issue. Jesus Domingo Martinez-Cruz challenges the district court's twelve-level enhancement of his sentence under United States Sentencing Guideline (the Guidelines) § 2L1.2

Application Note 5 for his previous conviction for Conspiracy to Possess a Controlled Substance with Intent to Distribute in Violation of 21 U.S.C. § 846. Martinez-Cruz contends that this was error, because Application Note 5 uses the term “conspiring” without defining it, thus the categorical approach should apply. Because the generic definition of conspiracy requires an overt act while his conviction under 21 U.S.C. § 846 did not, Martinez-Cruz argues, his previous conviction is not a categorical match for the generic definition of “conspiracy” and he should therefore receive only an eight-level enhancement for a prior aggravated felony conviction.

Having jurisdiction under 18 U.S.C. § 3742(a)(2)

, we agree with Martinez-Cruz. We therefore REVERSE and REMAND for resentencing consistent with this opinion.

BACKGROUND FACTS

In January 2015, United States Border Patrol agents found Jesus Domingo Martinez-Cruz and two associates walking along Interstate-10 in New Mexico. The men admitted that they had been carrying backpacks loaded with contraband. Martinez-Cruz admitted that he was a Mexican citizen and did not have permission to be in the United States. The backpacks that Martinez-Cruz and his associates were carrying contained 69.12 kilograms of marijuana.

Martinez-Cruz had previously been removed from the United States in November 2014. He was removed following a federal conviction for conspiracy to possess with intent to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. § 846

. He was caught committing a similar act to the one at issue in this case (i.e., illegally entering the United States and walking with associates along a highway carrying backpacks filled with marijuana). He received an eight-month sentence at that time.

In this case, Martinez-Cruz pled guilty to three counts: (1) conspiracy to possess with intent to distribute fifty kilograms or more of marijuana in violation of 21 U.S.C. § 846

; (2) possession with intent to distribute fifty kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ; and (3) reentering the United States after having been removed in violation of 8 U.S.C. §§ 1326(a) and (b).

The presentence report (PSR) recommended an adjusted offense level of sixteen for the drug counts. The PSR recommended a base level of eight for the immigration violation, pursuant to U.S.S.G. § 2L1.2

. The PSR then enhanced his immigration offense level by twelve levels for having been previously convicted of a felony drug trafficking conspiracy for which the penalty was less than thirteen months' imprisonment, pursuant to U.S.S.G. § 2L1.2(b)(1)(B) and its Application Note 5. Martinez-Cruz objected to that enhancement, and that enhancement forms the sole issue in this appeal. The district court overruled Martinez-Cruz's objection after hearing argument from both parties. After adjusting for multiple counts and acceptance of responsibility, Martinez-Cruz's total offense level was nineteen. With a criminal history category of II, his advisory guideline sentencing range was 33 to 41 months in prison. The district court sentenced Martinez-Cruz to 33 months in prison, followed by a three-year term of supervised release. Martinez-Cruz timely appealed.

STANDARD OF REVIEW

The Tenth Circuit reviews de novo whether a prior offense triggers a sentencing enhancement under U.S.S.G. § 2L1.2(b)

. United States v. Castillo, 811 F.3d 342, 345 (10th Cir.2015).

LEGAL DISCUSSION

U.S.S.G. § 2L1.2(b)(1)(B)

, the guideline for “Unlawfully Entering or Remaining in the United States,” imposes an additional twelve-level enhancement if the defendant had “a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less.” That conviction may arise from “an offense under federal, state, or local law.” U.S.S.G. § 2L1.2 Application Note 1(B)(iv). Alternatively, the guideline imposes an eight-level enhancement if the defendant has “a conviction for an aggravated felony.” Application Note 5 to § 2L1.2 states, “Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring , and attempting, to commit such offenses.” (emphasis added). The Application Notes do not further define “conspiring.”¹ Therefore, this opinion will focus on the generic definition of the term “conspiring.”

Martinez-Cruz argues that his twelve-level enhancement was unwarranted because, under Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

, his prior federal conviction for Conspiracy to Possess a Controlled Substance with Intent to Distribute in Violation of 21 U.S.C. § 846 was not categorically a “drug trafficking offense” because conspiracy under § 846 does not require proof of an overt act—which, Martinez-Cruz argues, is part of the generic definition of “conspiracy” to which § 2L1.2 Application Note 5 refers.²

However, this is an unsettled issue in the Tenth Circuit, and other circuits to address the issue have disagreed with Martinez-Cruz's proposed analysis. There are two similar—but varying—strands of precedent on this subject in the Tenth Circuit. This case thus presents a legal conundrum that we must resolve.

The analysis of this issue will proceed in four parts: (1) the relevant Tenth Circuit precedent concerning the Guidelines and categorical approach generally; (2) Martinez-Cruz's proposed analysis and result; (3) the government's proposed analysis and result (including other circuits' analyses of this issue); and (4) why we adopt Martinez-Cruz's proposed analysis.

a. Tenth Circuit precedent concerning the Guidelines and categorical approach

There are two major strands of precedent in the Tenth Circuit involving the Guidelines and categorical approach. The first emphasizes the Taylor

categorical approach, the second emphasizes the Sentencing Commission's intent. Recent precedent, however, focuses on the Taylor

categorical approach.

The Tenth Circuit recently decided a case that outlines the process for determining whether a previous federal drug conviction qualifies for enhancement under the immigration guideline, U.S.S.G. § 2L1.2(b)(1)

. In United States v. Dominguez – Rodriguez, 817 F.3d 1190, 1194 (10th Cir.2016), the court held that “[t]o determine whether a prior conviction qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i),³ a district court must generally follow the categorical approach adopted by the Supreme Court in Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).” (quotations and citations omitted, alterations in original).

“Under th[is] categorical approach, a court does not look to the facts of the particular case, but rather to the statute under which the defendant was convicted” to determine if it qualifies as a drug trafficking offense under § 2L1.2(b)(1)

. Dominguez – Rodriguez, 817 F.3d at 1194 (quotations omitted, alterations in original). Even though an offense may have “the same label ... as an enumerated offense listed in the Guidelines definition,” that by itself “does not automatically warrant application of the enhancement.” Id. at 1195 (quotations omitted). Instead, the court assumes that an enumerated offense in the Guidelines “refers to the generic, contemporary meaning of the offense.” Id.“Under the categorical approach, we must ensure that the elements of that generic enumerated offense are congruent with the elements of the defendant's prior offense.” Id.(quotations and citations omitted).

To determine the “generic, contemporary meaning” of a crime enumerated in the Guidelines, the court begins “by looking to the federal statute under which [the defendant] was previously convicted.” Id. at 1195

(also noting that “the federal statute is one source of the generic [ ] contemporary meaning” for a crime). The court also examines whether the statute of conviction “roughly corresponds to the definitions of the crime in a majority of the States' criminal codes, as well as prominent secondary sources, such as criminal law treatises and the Model Penal Code.” United States v. Garcia – Caraveo, 586 F.3d 1230, 1233 (10th Cir.2009) (addressing state law convictions) (citations and alterations omitted); see Dominguez – Rodriguez, 817 F.3d at 1195 (noting that the court did not look to sources beyond federal law when reviewing a federal conviction because the appellant did not argue that other sources were relevant when determining the generic definition of a crime). Here, our focus is on the word “conspiring” and its generic definition because Martinez-Cruz's prior conviction under 21 U.S.C. § 846 was for conspiracy to possess with intent to distribute controlled substances, rather than just possession with intent to distribute.

Although Martinez-Cruz's conviction was federal and the Guidelines are also federal, we must include state law in the generic crime analysis because the Guidelines uniformly count convictions “under federal, state, or local law.” U.S.S.G. § 2L1.2

Application Note 1(B)(iv). Considering all sources of conspiracy law in the inquiry of the nature of a...