PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS DOMINGO MARTINEZ-CRUZ, Defendant - Appellant. No. 15-2167

_________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:15-cr-00902-RB-2)

_________________________________ Caleb Kruckenberg, Assistant Federal Public Defender, Office of the Federal Public Defender, Las Cruces, New Mexi co, for Defendant-Appellant. James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with hi m on the brief), Office of the Unite d 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 c ourt’s twelve-level enhancement of his FILED United States Court of Appeals Tenth Circuit 

### September 12, 2016
Elisabeth A. Shumaker Clerk of Court2 sentence under United States Sentencing Guideline (the Guidelines) § 2L1.2 Application Note 5 for his previous c onviction for Conspiracy to Possess a Controlled Substance with Intent to Distri bute in Violation of 21 U.S.C. § 846. Martinez-Cruz contends that this was error, because Application No te 5 uses the term “conspiring” without defining it, thus the categorical approach should apply. Because the generic defini tion of conspiracy require s an overt act while his conviction under 21 U.S.C. § 846 did not, Martinez-Cru z argues, his previous conviction is not a categori cal match for the generic de finition of “conspiracy” and he should therefore receive only an eight-l evel enhancement for a prior aggravated felony conviction. Having jurisdiction under 18 U.S.C. § 374 2(a)(2), we agree with MartinezCruz. We therefore REVERS E and REMAND for resentencing consistent with this opinion. BACKGROUND FACTS In January 2015, United States Bord er Patrol agents found Jesus Domingo Martinez-Cruz and two associates walki ng along Interstate-10 in New Mexico. The men admitted that they ha d 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 th at 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 federa l conviction for conspiracy to3 possess with intent to distri bute fifty kilograms or more of marijuana, in violation of 21 U.S.C. § 846. He was ca ught committing a similar act to the one at is sue in this case (i.e., illegally entering the United Stat es and walking with associates along a highway carrying backpacks filled with ma rijuana). He received an eight-month sentence at that time. In this case, Martinez-Cru z pled guilty to three count s: (1) conspiracy to possess with intent to distri bute 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) recommende d an adjusted offense level of sixteen for the drug counts. The PSR reco mmended 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 fo r having been previously convicted of a felony drug trafficking conspiracy for wh ich 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 app eal. The district court overru led Martinez-Cruz’s objection after hearing argument from bot h parties. After adjusti ng for multiple counts and acceptance of responsibility, Mar tinez-Cruz’s total offense le vel was nineteen. With a criminal history category of II, his advisory guideline sentencing range was 33 to 41 months in prison. The di strict court sentenced Mart inez-Cruz to 33 months in4 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. § 2L 1.2(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 gui deline for “Unlawfully Entering or Remaining in the United States,” imposes an additional twelve-level enhancement if the defendant had “a conviction for a fel ony 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 im poses an eight-level enhancement if the defendant has “a conviction for an aggrav ated felony.” Application Note 5 to § 2L1.2 states, “Prior convic tions of offenses counted un der subsection (b)(1) include the offenses of aiding and abetting, conspiring , and attempting, to commit such offenses.” (emphasis added). The A pplication Notes do not further define “conspiring.” 1 Therefore, this opinion will focus on the generic defini tion 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 (1990), his prior

1 For ease of reading, we will refer to “conspiracy” rather than “conspiring.”5 federal conviction for Conspir acy to Possess a Controlled Substance with Intent to Distribute in Violation of 21 U.S.C. § 846 was not categor ically a “drug trafficking offense” because conspiracy under § 846 doe s 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 disagr eed with Martinez-Cruz’s pr oposed analysis. There are two similar—but varying—strands of precedent on this subject in th e Tenth Circuit. This case thus presents a legal co nundrum that we must resolve. The analysis of this issue will proceed in four parts: (1) the relevant Tenth Circuit precedent concerning the Guidelines and categori cal approach generally; (2) Martinez-Cruz’s proposed analysis a nd 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 concerni ng the Guidelines and categorical approach There are two major strands of preceden t in the Tenth Circuit involving the Guidelines and categorical approach. Th e first emphasizes the Taylor categorical approach, the second emphasizes the Sent encing Commission’s intent. Recent precedent, however, focuses on the Taylor categorical approach.

2 Martinez-Cruz concedes th at, if we find that the district court erred in applying the twelve-level enhancement, he will still be subject to an eight-level enhancement for his prior convicti on of an aggravated felony.6 The Tenth Circuit recently decided a case that outlines the process for determining whether a previous federal drug conviction qualifie s for enhancement under the immigration guidelin e, 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 convicti on qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i), 3 a district court must gene rally follow the categorical approach adopted by the Supreme Court in Taylor v. United States, 495 U.S. 575, 600-02 (1990).” (quotations and citations omitte d, alterations in original). “Under th[is] categorical approach, a c ourt 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 offe nse under § 2L1.2(b)(1). Dominguez-Rodriguez, 817 F.3d at 1194 (quotations omitted, al terations in original). Even though an offense may have “the same label . . . as an enum erated offense listed in the Guidelines definiti on,” 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 Gu idelines “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. (quotati ons and citations omitted).

3 Our case here involves U.S.S.G. § 2L1.2(b)(1)(B) instead of subsection (b)(1)(A) (at issue in Dominguez-Rodriguez), but those subsections are the same for the purposes of this appeal (the only difference between t hose two subsections is how long the defendant had been sent enced for the previous crime).7 To determine the “generic , contemporary meaning” of a crime enumerated in the Guidelines, the court begins “by lookin g 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 co rresponds to the definitions of the crime in a majority of the States’ cr iminal codes, as well as prominent secondary sources, such as criminal law trea tises and the Model Penal Code.” United States v. Garcia-Carav eo, 586 F.3d 1230, 1233 (10th Cir. 2009) (addressing state law convictions) (citat ions and alterati ons omitted); see Dominguez-Rodriguez, 817 F.3d at 1195 (no ting that the court did not look to sources beyond federal law when review ing 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 “conspi ring” 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 cr ime analysis because the Guidelines uniformly count convi ctions “under federal, state, or local law.” U.S.S.G. § 2L1.2 Application Note 1(B)(iv). Consider ing all sources of conspiracy law in the inquiry of the nature of a previous conviction—even for a prior federal conspiracy conviction—will ensure that different conspiracy c onvictions are not treated8 differently. Similarly, we focus on the word “conspiring” in its general sense and not specifically “conspiracy to possess with in tent to distribute controlled substances” because the term “conspiring” in U.S.S.G. § 2L1.2 Application Note 5 applies to a wide range of crimes beyond just drug trafficking (i ncluding “aggravated felony” and “any other felony”). We also acknowledge prior Tenth Circ uit law holding that, “Ultimately, our task in interpreting the Guid elines is to determine th e intent of the Sentencing Commission.” United States v. Rivera-Oros, 590 F.3d 11 23, 1129 (10th Cir. 2009). The Tenth Circuit interprets the Guidelines “as though they were a statute or court rule” and assumes that th e Sentencing Commission “adopts uniform judicial interpretations given a part icular word, phrase, or pr ovision.” United States v. O’Flanagan, 339 F.3d 1229, 1235 (10th Cir. 2003) (citations and quot ations omitted). “Where the language of the Gu idelines is clear and unam biguous, it must be followed except in the most extr aordinary situation where [it] lead s to an absurd result contrary to clear legislative intent.” United States v. Holbert, 285 F.3d 1257, 1260 (10th Cir. 2002) (quotations and ci tations omitted). Within § 2L1. 2 there are examples of when the Sentencing Commission clearly intended that the analysis stop at a federal statute. As just one of several examples, Appli cation Note 1(B)(v) specifically defines “firearm offense” to cover violations of 18 U.S.C. §§ 921, 841(c) , 844(h), 924(c), and 929(a). But this narrow approach is not available to us becau se the reference to “conspiracy” in § 2L1.2 Appli cation Note 5 is not narrow ed nor defined by reference to any particular federal statutes.9 Following the prescribed process in our precedent of Dominguez-Rodriguez is supportive of Martinez-Cruz’s position. But, other circuits have suggested that the Sentencing Commission intended that § 2L 1.2 Application Note 5 include federal conspiracy convictions under 21 U.S.C. § 846. However, because we find that the intent of the Sentencing Commission is not clear, we adopt Martinez-Cruz’s arguments and follow prior Tenth Circu it precedent in Dominguez-Rodriguez in applying the categorical approach. b. Martinez-Cruz’s conviction does not match the generic definition of “conspiracy” First, Martinez-Cruz argues that his c onviction is not a ca tegorical match for the generic definition of “c onspiracy” enumerated in U. S.S.G. § 2L1.2 Application Note 5 because the generic definition of c onspiracy requires an overt act whereas the statute he had previously been convicted of—21 U.S.C. § 846—has been held not to require proof of an overt act for a conspiracy conviction. United States v. Shabani, 513 U.S. 10 (1994) (holding that, in the context of a conspiracy conviction under § 846, “the Government need not prove the commission of any overt acts in furtherance of the conspiracy”). 4 Second, Martinez-Cruz points to the Nint h Circuit case of United States v. Garcia-Santana, 774 F.3d 528 (9th Cir. 201 4), which surveyed the states, Model Penal Code (MPC), criminal law treatises, and federal law to determine the generic

4 To avoid Constitutional pr oblems, the Court held th at although “the law does not punish criminal thoughts, in a criminal conspiracy the criminal agreement itself is the actus reus .” Shabani, 513 U.S. at 10 (emphasis in original).10 definition of conspiracy. The Ninth Circui t first cited Taylor for the proposition that “[t]he generic definition of an offense roughly correspond[s] to the definitions of [the offense] in a majority of the States’ criminal codes.” Garcia-Santana, 774 F.3d at 534 (citing Taylor, 495 U.S. at 589). Then, the Ninth Circu it noted that “A survey of state conspiracy statutes rev eals that the vast majority de mand an overt act to sustain conviction. By our count, thirty-six states do so; if the District of Columbia, Guam, Puerto Rico, and the Virgin Islands are include d, then the tally rises to forty of fiftyfour jurisdictions.” Id. at 534-35. Thes e state statutes, it should be noted, were general conspiracy statutes—i.e ., they applied generally to al l crimes within the state. Id. The Ninth Circuit, in Garc ia-Santana, also noted that the federal government’s general conspiracy statute ( 18 U.S.C. § 371) requires an ove rt act and major treatises support an overt act requireme nt for conspiracy convictions . Id. at 535-36. Thus, the Ninth Circuit held that the generic definition of conspiracy requires an overt act. Id. at 537. The Ninth Circuit’s surv ey of the law is persuasive.

c. The government proposes that the Panel should not apply the categorical approach and argues that generic conspiracy does not require an overt act The government makes two arguments: (1) that we should not apply the categorical approach here at all; and (2) if we apply the categorical approach, we should hold that the generic definition of c onspiracy does not require an overt act. In support, the government cites to several cases from other circuits. Although case law11 from other circuits has pers uasive weight, the analyses in the government’s cited cases do not persuade us because they offer little supportive analysis. In the first case, United St ates v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. 2014), the Fifth Circuit held that a prior conviction for conspiracy to commit murder did not require proof of an overt act to qualify for a sentencing enhancement under Application Note 5 of U.S.S. G. § 2L1.2 (the same Appli cation Note and Guidelines section at issue in th is case). But in that case, the Fifth Circu it was unclear whether it needed to apply the categorical approach to “conspiracy” in the Guidelines at all: 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). . . . For us, nonetheless, to search for a ge neric meaning of ‘conspiracy’ by employing a doctrine generally used to determine whether a state conviction is of an enumerated crim e, would only becl oud what is clear from the Guideline itself. Id. at 366-67. The Fifth Circuit performed the generic-cr ime analysis anyway. It held that the generic crime of conspiracy did not re quire an overt act and there may not even be a generic definition of “conspiracy” because thirty-four states re quire an overt act, but sixteen do not—and many fe deral statutes do not. Id . at 363-66. The Fifth Circuit counted twenty-four federal statutes that require an ove rt act and one hundred and forty-two that do not. 5

5 It should be noted that while some of the statutes not requiring overt acts are major federal statutes, including RICO and conspiracy to commit wire/mail fraud, many of the statutes reach very narrow behavior. Pas cacio-Rodriguez, 749 F.3d at 364. For instance, some of the federal statutes that do not require an overt act for a12 The government in our case relies on th is analysis for its argument that the generic definition of conspiracy does not re quire an overt act. But the Fifth Circuit focused on “conspiracy to co mmit murder” specif ically, did not give much weight to the primary federal general conspiracy statute under 18 U. S.C. § 371, and did not give much weight to the more than 2:1 rati o of states that requi re an overt act for conspiracy. Id. at 368; see also United States v. Martinez-Lugo, 782 F.3d 198, 202 (5th Cir. 2015) (holding that the Taylor cat egorical approach re quires courts to look to “state and federal stat utes, the Model Penal Code, respected treatises, and dictionaries”). The Fifth Circuit concluded that “there is no basis for concluding that the Sentencing Commission intended to crea te a dichotomy in § 2L1.2 between conspiracy convictions under fe deral law and conspiracy c onvictions under state law” because Application Note 5 does not draw a distinction between state and federal crimes. Pascacio-Rodriguez, 749 F.3d at 367. And it is tr ue that U.S.S.G. § 2L1.2, Application Note 1(B)(iv) seek s to reach all offenses “under federal, state, or local law.” But by holding the way it did, the Fifth Ci rcuit may have actually created a

conspiracy conviction include such crimes as “conspiracy to falsely represent oneself as the registrant of five or more Internet Protocol addresses and to initiate commercial electronic ma il messages from those addresses” (18 U.S.C. § 1037(a)(5)), “conspiracy to furnish facil ities or privileges to ships or persons contrary to a presidential proclamation,” ( 15 U.S.C. § 77), “conspiracy to damage or interfere with the operations of an animal enterprise by property damage” (18 U.S.C. § 43(a)(2)(A)), “conspiracy to violate provis ions regulating helium gas,” (50 U.S.C. § 167k), and “conspiracy to vi olate statutory provi sions or regulations related to Iran freedom and counterproliferat ion,” (22 U.S.C. § 8809(b)). Therefore, a simple balancing of federal conspiracy statutes is not very helpful.13 distinction between state and federal law rather than avoiding it. Because the Guidelines does not define “conspiracy,” a state conspiracy convi ction would also be subject to the categorical a pproach. Under that approach , the generic definition of “conspiracy,” as noted by the Ninth Circui t in Garcia-Santana , 774 F.3d at 528, requires proof of an overt act. Therefor e, under the Fifth Circuit’s approach, state conspiracy convictions a nd federal conspiracy convi ctions would be treated differently—state conspiracy convictions would require an overt act to qualify for enhancement under U.S.S.G. § 2L1.2 and fede ral conspiracy convic tions would not. In the second case, United States v. Rive ra-Constantino, 798 F.3d 900 (9th Cir. 2015), the Ninth Circuit decided whethe r a conspiracy c onviction under § 846 qualified for enhancement under U. S.S.G. § 2L1.2 (the exact sa me issue as this case). The Ninth Circuit acknowledged its previous opinion in Garcia-San tana regarding the generic definition of conspiracy, but held that it was not applicable because “the clear intent of the Sentencing Commission in dr afting section 2L1.2 and its accompanying commentary was to encompass a prior fe deral drug conspiracy conviction under 21 U.S.C. § 846.” Id. at 903. In so fi nding, the Ninth Circuit argued it followed “traditional rules of statut ory construction,” because th e “plain meaning of [the] term” conspiring “is readily a pparent form the text, cont ext, and structure of the relevant Guidelines provision and commentary.” Id. at 904. Therefore, the generic definition analysis was inapp licable. But the Ninth Circui t, in Rivera-Constantino, never pointed to anything beyond assu mptions about the Sentencing Commission’s intent to establish th is “plain meaning.”14 For instance, as Judge Paez pointed out in his dissent in Rivera-Constantino, Congress never provided a clea r definition of conspiracy—d ifferent federal crimes have different elements. Id . at 907-08. The majority responded to this argument by stating: But at least with regards to fede ral drug trafficking conspiracies, Congress surely has provided a si ngle, clear definition: the one articulated in 21 U.S.C. § 846. Th is, we conclude, was overwhelmingly likely to have been the mean ing intended by the Sentencing Commission, notwithstanding the generic meaning of the word “conspiracy” as used in other contexts. Id. at 904. However, in addition to the obvious omission of 18 U.S.C. § 371 6 —the general federal conspiracy statute that includes drug crimes as well as non-drug federal crimes and which re quires proof of an overt act—the word “conspiring” in Application Note 5 of § 2L1.2 does not refer to just federal drug trafficking crimes. The word “conspiring” applies to all of the crimes listed in § 2L1.2, including any felony, state, or local felony or aggravated felony, some of which require proof of an overt act. Judge Paez also argued that the majority “sidestep[pe d]” the applicable Taylor categorical approach. Id. at 906. Judge Paez noted that the majority “disregards [the Ninth Circuit’s] establ ished rule” of applying the categorical approach to determine whet her a prior conviction satisfi es the requirements of a § 2L1.2 enhancement. Id. at 907.

6 The text of 18 U.S.C. § 371 requires an overt act: “If tw o or more persons conspire either to commit any offense agai nst the United States, or to defraud the United States, or any agency thereof in any manner or fo r any purpose, and one or more of such persons do any act to effect the object of th e conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” (emphasis added).15 In the government’s third case, United St ates v. Sanbria-Bueno, 549 F. App’x 434 (6th Cir. 2013) (unpublished), the Sixth Circuit used logic similar to the Ninth Circuit to conclude that it did not have to apply the categorical approach to a conspiracy conviction under § 8 46. The Sixth Circuit held that “the [Sentencing] Commission’s intent is clear,” because “[t]he Commission expressly intended that a conviction under 21 U.S.C. § 846 for conspiracy to co mmit a federal drug offense proscribed by § 841 is a ‘drug trafficking offe nse’ as defined in th e Guidelines.” Id. at 438-39. But the Sixth Circ uit—same as the Ninth and Fi fth—went no further in its analysis than proclaiming th at it was “clear” that cons piracy convictions under § 846 qualify for enhancement under § 2L1.2. The problem with all three of these cases is that, if the Sentencing Commission “expressly intended” § 846 c onspiracy convictions to qualify for enhancement under U.S.S.G. § 2L1.2, the Sentencing Commission could have stated so expressly—i.e., clearly. For instance, U.S. S.G. § 2L1.2 Application Note 5 could have stated that “The term ‘conspiring’ incl udes, but is not limited to, conspiracy convictions under 21 U.S.C. § 846.” 7 Or it could have simply include d a parenthetical after the word conspiring—e.g., “conspiring (w hether or not an overt act was required).” But the Sentencing Commission did neither and in stead provided a generic, undefined word

7 As noted above, the Sentencing Co mmission made its intent clear by referencing specific federal st atutes in several instances. For instance, Application Note 1(B)(v) to § 2L1.2 defines “Firearm s offense” with reference to 18 U.S.C. §§ 921, 841(c), 844(h), 924(c), and 929(a).16 ripe for the categorical approach. Therefor e, we find the government’s cited cases to be unpersuasive. d. Martinez-Cruz’s proposed analysis should control As discussed above, Martinez-Cruz’s an alysis arrives at the logical result through the prescribed legal process. The term “conspiring” is not defined in § 2L1.2 or its application notes, incl uding Application Note 5. Th e Tenth Circuit applies the categorical approach to gene ric, undefined terms in th e Guidelines. See DominguezRodriguez, 817 F.3d at 1194. We find the analysis of the ge neric definition of “conspiracy” in Garcia-Santa na persuasive. It omitte d a discussion of the many federal conspiracy st atutes, but federal c onspiracy statutes s upport both requiring and not requiring an overt act. The number of federal statutes allowi ng for conspiracy convictions without proof of an overt act is much larger th an those requiring an overt act, but that by itself is not dispositive because of the narrow nature of many of the federal statutes— here, we are defining conspi racy generally (the states also define conspiracy generally). Of the federal statutes which could have applied to Martinez-Cruz’s conviction, the broadest federa l conspiracy statute, § 371, requires proof of an overt act—while the drug statute, § 846, doe s not. And while the common law of conspiracy did not require an overt act, as noted in Garcia -Santana, most jurisdictions have jettisoned that doctrine. Under the categorical approach, we look to the law’s17 current state. See Dominguez-Rodriguez, 817 F.3d at 1195 ( holding that courts should look to “the generic, cont emporary meaning of the offense”). 8 Therefore, we conclude that the gene ric definition of “conspiracy” requires an overt act. Section 846 does not. See Shab ani, 513 U.S. at 10. Martinez-Cruz’s conspiracy conviction under § 846 is a categorical mi smatch for the generic definition of “conspiracy” in U.S.S.G. § 2L1.2 Application Note 5 and he should receive an eight-level enha ncement instead of twelve. 9 The other circuits to decide this issue held the opposite, that the categor ical approach should not apply. But the Fifth Circuit, Sixth Circuit, and Ninth Circuit (in Rive ra-Constantino) divined the intent of the Sentencing Commission without offering any evidence of that intent. And while the Sentencing Commission’s intent is still relevant in the Tenth Circuit, we find no evidence of its intent regardi ng whether a conspiracy conviction requires an overt act—except for the plain language of the guideline, which uses a generic, undefined term, ripe for the categorical approach. 10

8 If we were to hold that the weight of federal statutes not requiring an overt act tipped the scale into equipoise with the weight of state statut es requiring an overt act, we would still find for Martinez-Cruz unde r the rule of lenity. See United States v. Wilson, 10 F.3d 734, 736 (1 0th Cir. 1993) (“The rule of lenity applies where a statute is facially ambiguous and resort to the legislativ e history does not reveal the congressional intent of the language. Under these circumstances, courts construe the statute favorably to the criminal defendant. The rule applies to s ubstantive, as well as sentencing, statutes .”) (citations omitted). 9 We do not reach the modified categor ical approach because 21 U.S.C. § 846 is not divisible. 10 We note that, if the Sentencing Commi ssion intends for § 2L1.2 to reach all conspiracy convictions under federal law regardless of whether an overt act is required or not, it can amend the guidelines to state clearly that intention.18 CONCLUSION Although it pits us against our sister circuits, we must follow binding Tenth Circuit precedent and apply the categorical approach to a generic, undefined term in the Guidelines. Martinez-Cruz’s prior c onviction for conspir acy to possess with intent to distribute fifty kilograms or more of marijuana, in vi olation of 21 U.S.C. § 846, is a categorical mismat ch to the generic crime of “conspiracy.” We therefore REVERSE and REMAND for resentencing consistent with this opinion.