FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN MANUEL RIVERACONSTANTINO, AKA Juan RiveraConstantino,

Defendant-Appellant.

No. 14-10314

D.C. No.

4:13-cr-01510-

CKJ-BGM-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

May 15, 2015—San Francisco, California

Filed August 19, 2015

Before: Richard A. Paez and Richard R. Clifton, Circuit

Judges and Kevin Thomas Duffy,

*

 District Judge.

Opinion by Judge Clifton;

Dissent by Judge Paez

* The Honorable Kevin Thomas Duffy, U.S. District Judge for the

Southern District of New York, sitting by designation.
2 UNITED STATES V. RIVERA-CONSTANTINO

SUMMARY**

Criminal Law

Affirming a sentence for illegal reentry, the panel held

that a prior federal conviction for conspiring to possess

marijuana with intent to distribute, 21 U.S.C. §§ 846,

841(a)(1), constitutes a prior conviction for “conspiring[ ] . . .

to commit” a “drug trafficking offense” as that phrase is used

in the commentary to U.S.S.G. § 2L1.2(b)(1), therebymaking

a defendant subject to a 16-level enhancement under

§ 2L1.2(a)(1)(A).

The panel rejected the defendant’s argument that because

his prior federal conspiracy conviction did not require an

overt act, it was not technically a “conspiracy” within the

meaning of § 2L1.2, cmt. n.5. The panel wrote that it need not

rely on a generic definition analysis because the plain

meaning of § 2L1.2(b)(1) and related commentary is to

encompass § 846 as a predicate offense.

Dissenting, Judge Paez would hold that where a prior

conspiracy conviction under § 846 does not require proof of

an overt act, it does not qualify categorically as a drug

trafficking offense for purposes of the § 2L1.2(b)(1)(A)(i)

enhancement.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. RIVERA-CONSTANTINO 3

COUNSEL

Saul M. Huerta, Tucson, Arizona, for Defendant-Appellant.

Robert L. Miskell, Assistant United States Attorney, and John

S. Leonardo, United States Attorney, Tucson, Arizona, for

Plaintiff-Appellee.

OPINION

CLIFTON, Circuit Judge:

This sentencing appeal requires us to answer the

following question: Is a federal drug trafficking conspiracy

conviction a conviction for conspiracy to commit a drug

trafficking offense? Or, to put it more precisely, does a prior

federal conviction for conspiring to possess marijuana with

intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), constitute a

prior conviction for “conspiring[ ] . . . to commit” a “drug

trafficking offense” as that phrase is used in the commentary

to section 2L1.2(b)(1) of the Sentencing Guidelines, thereby

making a defendant subject to a 16-level sentencing

enhancement? No matter how the question is phrased, the

answer, we conclude, is “yes.” We therefore affirm the

sentence that Defendant Juan Manuel Rivera-Constantino

received and that he now challenges on appeal.

I. Background

In 2011, Rivera-Constantino was convicted of conspiracy

to possess with intent to distribute approximately 195

kilograms of marijuana, a violation of 21 U.S.C. §§ 846,

841(a)(1). He was sentenced to 24 months in prison and 36
4 UNITED STATES V. RIVERA-CONSTANTINO

months of supervised release. Although Rivera-Constantino

was deported to Mexico in 2011, he returned to the United

States in August 2013 and was arrested. In March 2014, a

jury found him guilty of one count of illegal reentry, 8 U.S.C.

§ 1326. In calculating the advisory range under the

Sentencing Guidelines, the district court imposed a 16-level

enhancement on the basis that Rivera-Constantino’s prior

conviction for conspiracy to possess marijuana with intent to

distribute was a predicate drug trafficking offense under

U.S.S.G. § 2L1.2(b)(1). Rivera-Constantino objected to the

application of this enhancement, but his objection was

overruled. The district court imposed a sentence of 51

months in prison and 36 months of supervised release. That

sentence was within the Guidelines range, including the 16-

level enhancement. This appeal followed.

II. Discussion

Rivera-Constantino argues that the district court erred

when it determined that his prior conviction for conspiracy

made him subject to a 16-level sentencing enhancement

pursuant to section 2L1.2(b)(1). We review the district

court’s interpretation of the Sentencing Guidelines de novo. 

United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir.

2009).

“U.S.S.G. § 2L1.2 is the Sentencing Guidelines provision

applicable to defendants who illegally reenter the country in

violation of 8 U.S.C. § 1326. The sentencing scheme

embodied in [section] 2L1.2 imposes, via enhancements to

the defendant’s base offense level, more severe punishment

for defendants who have committed serious prior crimes.” 

United States v. Rosales-Garcia, 667 F.3d 1348, 1349 (10th

Cir. 2012). Under section 2L1.2(b)(1), a 16-level
UNITED STATES V. RIVERA-CONSTANTINO 5

enhancement applies “[i]f the defendant previously was

deported, or unlawfully remained in the United States, after

. . . a conviction for a felony that is . . . a drug trafficking

offense for which the sentence imposed exceeded 13 months

. . . .”1

According to Application Note 1 for this section, a

“‘[d]rug trafficking offense’” is “an offense under federal,

state, or local law that prohibits the manufacture, import,

export, distribution, or dispensing of, or offer to sell a

controlled substance (or a counterfeit substance) or the

possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export,

distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv)

(2014). Application Note 5 further provides that “[p]rior

convictions of offenses counted under subsection (b)(1) [a set

of offenses that includes, among other things, ‘drug

trafficking offenses’] include the offenses of aiding and

abetting, conspiring, and attempting, to commit such

offenses.” Id. at § 2L1.2, cmt. n.5 (emphasis added).

“Application notes are binding on the courts in their

construction of the Sentencing Guidelines.” United States v.

1 Section 2L1.2(b)(1)(A) has been memorably described as “a sentence

only a grammar teacher could love,” with “passive voice, followed by a

scraggly expression of time (‘previously . . . after’), then a train of

prepositional phrases linked one after another and themselves rudely

interrupted by a pair of parenthetical punctuations.” Rosales-Garcia,

667 F.3d at 1356 (Gorsuch, J., dissenting). Fortunately, the basic meaning

of the sentence is clear: “[I]f the defendant was deported after a

drug-trafficking felony conviction for which the sentence imposed

exceeded thirteen months, then apply the 16-level enhancement.” Anna

Natalie Rol, Comment, U.S. vs. Them: A Perspective on U.S. Immigration

Law Arising from United States v. Rosales-Garcia and the Combination

of Imprisonment and Deportation, 90 DENV. U. L. REV. 769, 790 (2012).
6 UNITED STATES V. RIVERA-CONSTANTINO

Malley, 307 F.3d 1032, 1034 (9th Cir. 2002) (citation and

internal quotation marks omitted).

Rivera-Constantino’s central argument is that his prior

conspiracy conviction is not encompassed by the word

“conspiring” as used in Application Note 5. His 2011

conviction was for the crime of conspiracy to possess

marijuana with intent to distribute, 21 U.S.C. §§ 846,

841(a)(1).2 This offense—like the overwhelming majority of

federal conspiracy offenses—does not require proof of “any

overt acts in furtherance of the conspiracy.” United States v.

Shabani, 513 U.S. 10, 15 (1994). In contrast, in United States

v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014), we

considered the appropriate treatment under a section of the

Immigration and Nationality Act (“INA”) for a Nevada

conviction for “conspiracy to commit the crime of burglary”

in violation of NEV. REV. STAT. §§ 199.480, 205.060(1). In

that context, we defined the generic offense of conspiracy for

purposes of 8 U.S.C. § 1101(a)(43)(U) as requiring an overt

act. 774 F.3d at 534. Relying on Garcia-Santana, RiveraConstantino asserts that it was error to impose the sentencing

enhancement because his prior federal conspiracyconviction,

which did not require an overt act, was not technically a

2

21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires

to commit any offense defined in this subchapter shall be subject to the

same penalties as those prescribed for the offense, the commission of

which was the object of the attempt or conspiracy.” 21 U.S.C. 841(a)(1),

in turn, makes it unlawful “for any person knowingly or intentionally . . .

to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance . . . .” See

United States v. O’Brien, 52 F.3d 277, 278 (9thCir. 1995) (“The language

of section 846 is clear. A person who conspires to distribute a controlled

substance described by section 841(a)(1) is subject to the same penalties

prescribed for a section 841(a) offense.”).
UNITED STATES V. RIVERA-CONSTANTINO 7

“conspir[acy]” within the meaning of the word as it was used

in Application Note 5.

Rivera-Constantino’s argument is creative but

unpersuasive. We reject this argument because we do not

accept the premise that the generic definition of conspiracy as

articulated in Garcia-Santana is controlling in this context. 

Rather, we conclude that the clear intent of the Sentencing

Commission in drafting section 2L1.2 and its accompanying

commentary was to encompass a prior federal drug

conspiracy conviction under 21 U.S.C. § 846.

“We apply the traditional rules of statutory construction

when interpreting the [S]entencing [G]uidelines,” United

States v. Flores, 729 F.3d 910, 914 n.2 (9th Cir. 2013), and

“[w]e interpret the Guidelines to give effect to the intent of

the Sentencing Commission.” United States v. Gibson,

135 F.3d 257, 261 (2d Cir. 1998). Interpreting a term used in

the Guidelines based on its “generic definition”—the

approach urged by Rivera-Constantino and discussed in

Taylor v. United States, 495 U.S. 575 (1990)—represents a

useful tool for divining legislative intent. But when the plain

meaning of a term is readily apparent from the text, context,

and structure of the relevant Guidelines provision and

commentary, that meaning is dispositive and there is no need

to rely on the “generic definition” framework. See EstradaEspinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008)

(en banc) (recognizing that it was “unnecessary to survey

current criminal law to ascertain a federal definition because

Congress has already supplied it”), overruled on other

grounds by United States v. Aguila-Montes de Oca, 655 F.3d

915 (9th Cir. 2011) (en banc) (per curiam), and abrogated by

Descamps v. United States, 133 S. Ct. 2276 (2013); cf. United

States v. Gonzalez-Corn, No. 13-50480, 2015 WL 4385278,
8 UNITED STATES V. RIVERA-CONSTANTINO

at *1, *5 (9th Cir. July 17, 2015) (recognizing that where a

“conviction qualifies as an aggravated felony on its face[,] . . .

there is no need to compare the elements of [a] conviction to

the elements of a generic federal offense . . . to determine if

[the] conviction was for an aggravated felony” and

concluding that the “categorical matching analysis is

inapplicable . . . because there is nothing to match”).3

Our dissenting colleague suggests that reliance on the

federal definition embodied in 21 U.S.C. § 846 would be

“inapposite” because “Congress used the word ‘conspiracy’

both for crimes with an overt act element and for others

without such an element” and because “Congress has not

supplied a single set of elements that define ‘conspiracy’ for

us to use in interpreting U.S.S.G. § 2L1.2 cmt. n.5.” Dissent

at 17. But at least with regards to federal drug trafficking

conspiracies, Congress surely has provided a single, clear

definition: the one articulated in 21 U.S.C. § 846. This, we

conclude, was overwhelmingly likely to have been the

meaning intended by the Sentencing Commission,

notwithstanding the generic meaning of the word

“conspiracy” as used in other contexts.

Taylor itself is instructive on this point. In Taylor, the

Supreme Court began by emphasizing that:

[o]n the face of the federal enhancement

provision, it is not readily apparent whether

3

In the words of another circuit, we “discern from the language that the

Sentencing Commission used whether it intended for an overt act to be an

element of every conspiracy conviction,” rather than by “employ[ing] the

categorical approach to discern the elements of ‘conspiracy.’” United

States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir. 2014).
UNITED STATES V. RIVERA-CONSTANTINO 9

Congress intended “burglary” to mean

whatever the State of the defendant’s prior

conviction defines as burglary, or whether it

intended that some uniform definition of

burglary be applied to all cases . . . . And if

Congress intended that a uniform definition of

burglary be applied, was that definition to be

the traditional common-law definition, or [a]

broader “generic” definition[ ] . . . or some

other definition specifically tailored to the

purposes of the enhancement statute?

495 U.S. at 580 (footnote omitted).

Here, in contrast, it isreadily apparent that the Sentencing

Commission intended section 2L1.2(b)(1) to encompass as

predicate offenses federal drug conspiracyconvictions that do

not require proof of an overt act. To hold otherwise would be

to conclude that the Sentencing Commission intended to

exclude federal drug trafficking conspiracy offenses when it

used the word “conspiring” to modify the phrase “drug

trafficking offenses.” Such a result would be not just

marginally “underinclusive,” as the results of the categorical

approach sometimes are, Moncrieffe v. Holder, 133 S. Ct.

1678, 1692 (2013), but downright absurd. Why would the

Sentencing Commission intend to exclude from the term

“drug trafficking offenses” a federal conviction for a drug

trafficking offense under federal law? Congress has decided

not to require an overt act as an element of federal drug

conspiracy, and we have no reason to conclude that the

Sentencing Commission intended to abrogate that decision. 

Indeed, to adopt such an interpretation would run counter to

basic notions of common sense. “[I]n the course of the

application of the [S]entencing [G]uidelines, as in the
10 UNITED STATES V. RIVERA-CONSTANTINO

application of any legal concept, the use of ‘common sense’

is more than just relevant, but required.” United States v.

White, 903 F.2d 457, 462 (7th Cir. 1990). We reject RiveraConstantino’s reading of section 2L1.2(b)(1) because

“[c]ourts ought not read the Guidelines in a way that makes

the Sentencing Commission look foolish.” United States v.

Turner, 998 F.2d 534, 538 (7th Cir. 1993).

Our interpretation of section 2L1.2(b)(1) is further

supported by an examination of the Sentencing Guidelines as

a whole. See United States v. Leal-Felix, 665 F.3d 1037,

1041–42 (9th Cir. 2011) (“Interpretation of a word or phrase

[in a statute] depends upon reading the whole statutory text,

considering the purpose and context of the statute, and

consulting any precedents or authorities that inform the

analysis.” (alteration in original; citation and internal

quotation marks omitted)). The term “conspiracy” is used

elsewhere in the Guidelines (and associated commentary and

appendices) to encompass a conspiracy conviction under

21 U.S.C. § 846. See, e.g., U.S.S.G. § 2D1.1; U.S.S.G.

§ 2X1.1. “A standard principle of statutory construction

provides that identical words and phrases within the same

statute should normally be given the same meaning.” 

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224,

232 (2007).

Moreover, the two other circuits that have considered this

question have both held that the Sentencing Commission

intended section 2L1.2(b)(1) to encompass federal drug

trafficking conspiracies. The Fifth Circuit has concluded that

“[t]here is no reason to search outside the Guidelines for a

definition of ‘conspiracy’ applicable to this enhancement”

because “Application Note 5 is a clear statement by the

Sentencing Commission that the enhancement applies to
UNITED STATES V. RIVERA-CONSTANTINO 11

conspiracies to commit federal drug trafficking offenses.” 

United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th

Cir. 2012) (footnote omitted). The Sixth Circuit has similarly

held that “[a] violation of § 841(a)(1) is a federal drug

trafficking offense as defined in Application Note 1” and that

“Application Note 5 . . . clarifies that a conspiracy to commit

an offense defined in Note 1 is also a ‘drug trafficking

offense’ for purposes of the Guidelines.” United States v.

Sanbria-Bueno, 549 F. App’x 434, 439 (6th Cir. 2013).

Our prior decision in Garcia-Santana, 774 F.3d 528, does

not compel a contrary conclusion. In Garcia-Santana, we

held “that the generic definition of ‘conspiracy’ under [a

provision of] the Immigration and Nationality Act . . .

include[d] proof of an overt act in furtherance of the

conspiracy.” Id. at 532. Here, in contrast, we are called upon

to interpret the Sentencing Guidelines, not the INA. In

addition, the predicate conviction we consider here is a

federal offense, not a conviction under state law. Although

it is true that “decisional law defining [a] term . . . [used] in

the sentencing context . . . is informed by the definition of the

same term in the immigration context,” United States v.

Medina-Villa, 567 F.3d 507, 511 (9th Cir. 2009) (citations

and footnote omitted), we will not blindly import a definition

when the context makes clear that doing so would be

inappropriate. The language used in the provision at issue

here is materially different from that used in the provision

considered in Garcia-Santana, and the context is entirely

different. Cf. United States v. Leal-Vega, 680 F.3d 1160,

1165 (9th Cir. 2012) (noting that “our holdings in the

immigration context do not definitively resolve the issue . . .

because the text of the immigration statute . . . differs from

the text of the Sentencing Guidelines”).
12 UNITED STATES V. RIVERA-CONSTANTINO

We conclude that we need not rely on a generic definition

analysis because the plain meaning of section 2L1.2(b)(1) and

related commentary is to encompass 21 U.S.C. § 846 as a

predicate offense.4

III. Conclusion

The district court properly determined that the 16-level

sentencing enhancement applied to Rivera-Constantino based

on his prior federal drug conspiracy conviction. We affirm

the sentence.

AFFIRMED.

PAEZ, Circuit Judge, dissenting.

I respectfully dissent. The majority attempts to

distinguish United States v. Garcia-Santana, 774 F.3d 528

(9th Cir. 2014), and to sidestep the Taylor1

categorical

approach to hold that a conspiracy conviction under

21 U.S.C. § 846 qualifies categorically as a drug trafficking

offense, warranting the sixteen-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(i). Because I would follow

4 We emphasize that our holding is a narrow one. We need not, and do

not, consider the meaning of the phrase “conspiring . . . to commit . . . a

‘drug trafficking offense’” as it relates to conspiracy convictions under

state law, for example. We hold only that, in this context, the plain

meaning of the language used by the Sentencing Commission was to

encompass a prior federal drug conspiracy conviction under 21 U.S.C.

§ 846.

 

1 Taylor v. United States, 495 U.S. 575 (1990).
UNITED STATES V. RIVERA-CONSTANTINO 13

Garcia-Santana, I would hold that where a prior conspiracy

conviction under § 846 does not require proof of an overt act,

it does not qualify categorically as a drug trafficking offense

for purposes of the § 2L1.2(b)(1)(A)(i) enhancement. I

therefore would vacate the district court’s sentence, and

remand for consideration of whether Rivera-Constantino’s

prior conviction under § 846 warrants an eight-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(C) as an

aggravated felony for “illicit trafficking in a controlled

substance (as defined in section 802 of Title 21), including a

drug trafficking crime (as defined in section 924(c) of Title

18),” 8 U.S.C. § 1101(a)(43)(B).

1. The majority recognizes that we already have defined

the generic offense of conspiracy, Maj. Op. at 6 (citing

Garcia-Santana, 774 F.3d 528), but seeks to avoid applying

that definition outside the Immigration and Nationality Act

(“INA”) context. The majority, however, fails to distinguish

meaningfully the U.S.S.G. § 2L1.2(b)(1)(A)(i) and cmt. n.5

enhancement here from the INA provision interpreted in

Garcia-Santana, 8 U.S.C. § 1101(a)(43)(U). Both refer to a

class of prior convictions, both refer generically to

conspiracy, and both capture for enhancement purposes or

collateral consequences prior offenses under federal or state

law. Under the INA, “‘aggravated felony’ means . . . an

attempt or conspiracy to commit an offense described in

[§ 1101(a)(43)].” § 1101(a)(43)(U). “The term applies to an

offense described in th[at] paragraph whether in violation of

Federal or State law . . . .” § 1101(a)(43). And “aggravated

felony” includes the offense of “illicit trafficking in a

controlled substance (as defined in section 802 of Title 21),

including a drug trafficking crime (as defined in section

924(c) of Title 18).” § 1101(a)(43)(B).
14 UNITED STATES V. RIVERA-CONSTANTINO

Reading that INA provision side-by-side with U.S.S.G.

§ 2L1.2(b)(1)(A)(i) and cmt. n.5 belies the majority’s view

that the provisions are “materially different,” Maj. Op. at 11. 

Application Note 5 for § 2L1.2 explains: “Prior convictions

of offenses counted under subsection (b)(1) include the

offenses of aiding and abetting, conspiring, and attempting,

to commit such offenses.” § 2L1.2 cmt. n.5. In turn,

subsection (b)(1) refers, in relevant part, to a class of prior

convictions: “‘Drug trafficking offense’ means an offense

under federal, state, or local law that prohibits . . . the

possession of a controlled substance . . . with intent to . . .

distribute, or dispense.” § 2L1.2 cmt. n.1(B)(iv). The

majority says the two provisions are “materially different,”

Maj. Op. at 11, but offers no analysis to demonstrate how we

should reach that essential conclusion in this case involving

an enhancement that refers to generic conspiracyand captures

a class of prior convictions.

2. Next, the majority disregards our established rule of

applying “the categorical and modified categorical

approaches described in Taylor v. United States, 495 U.S. 575

(1990), to determine whether a defendant’s prior conviction

satisfies U.S.S.G. § 2L1.2(b)(1)(A),” United States v.

Torre-Jimenez, 771 F.3d 1163, 1165 (9th Cir. 2014) (quoting

United States v. Leal-Vega, 680 F.3d 1160, 1163 (9th Cir.

2012)) (quotation marks omitted). “We derive the meaning

of an enumerated Guidelines crime not from the offense’s

ordinary meaning but rather by surveying the Model Penal

Code and state statutes to determine how they define the

offense.” United States v. Esparza-Herrera, 557 F.3d 1019,

1022 (9th Cir. 2009) (per curiam). In Garcia-Santana, we

applied “the methodology prescribed by the Supreme Court

for defining generic offenses for categorical purposes,” to

determine that “the generic federal definition of conspiracy,
UNITED STATES V. RIVERA-CONSTANTINO 15

codified at 8 U.S.C. § 1101(a)(43)(U), conditions conviction

on performance of an overt act in pursuit of the conspiratorial

objective.” 774 F.3d at 534 (footnote omitted). Because

§ 2L1.2(b)(1)(A)(i) captures prior federal, state, and local

offenses for purposes of sentence enhancement and because

the text of Application Notes 1(B)(iv) and 5 under § 2L1.2

are not materially distinct from the text interpreted in GarciaSantana, I would conclude that a prior conviction for

conspiracy must have an overt act element to qualify

categorically as a drug trafficking offense under

§ 2L1.2(b)(1)(A)(i).

We already have applied this approach to U.S.S.G.

§ 2L1.2(b)(1)(A). In addition to conspiracy, Application

Note 5 includes certain prior attempt offenses. See § 2L1.2

cmt. n.5. And “in dealing with attempt crimes, the district

court can impose the 16-level enhancement under § 2L1.2(a)

only if both the state’s definition of ‘attempt’ and the

underlying state offense are categorical matches for the

federal generic ‘attempt’ definition and the underlying federal

generic offense.” United States v. Gonzalez-Monterroso,

745 F.3d 1237, 1240 (9th Cir. 2014) (emphasis added). 

Notably, in defining “attempt,” Gonzalez-Monterroso cited

the definition of “attempt” set forth in an INA case involving

8 U.S.C. § 1101(a)(43)(G) & (U). See 745 F.3d at 1243;

Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100 (9th Cir.

2011).2 The majority recognizes the generic definition of

 

2 But see United States v. Taylor, 529 F.3d 1232, 1236 (9th Cir. 2008)

(“For purposes of USSG § 4B1.2(a), a state offense qualifies as a crime of

violence if the state crime’s definition is coextensive with the crime’s

common-law or ‘federal’ definition.”); id. at n.2 (“We use the terms

‘federal definition’ and ‘common-law definition’ interchangeably in the

context of crimes of violence.”).
16 UNITED STATES V. RIVERA-CONSTANTINO

conspiracyas explained in Garcia-Santana, Maj. Op. at 6, but

the majority today carves out “conspiracy” from “attempt.” 

Stating that “the [INA or Garcia-Santana] context is entirely

different,” Maj. Op. at 11, does not address the precedent that

should guide our interpretation of the conspiracy provision in

§ 2L1.2 cmt. n.5.

3. The majority in footnote 4 states that its holding is a

narrow one, but U.S.S.G. § 2L1.2 refers collectively to

federal, state, and local predicate offenses without

distinguishing federal from state or local offenses. The

majority also relies on a Fifth Circuit opinion, United States

v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012), and an

unpublished Sixth Circuit memorandum, United States v.

Sanbria-Bueno, 549 F. App’x 434 (6th Cir. 2013)

(unpublished), that followed the Fifth Circuit’s reasoning. 

But the Fifth Circuit since has called into question a footnote

nearly identical to the majority’s footnote 4. See United

States v. Pascacio-Rodriguez, 749 F.3d 353, 367 (5th Cir.

2014).3“[T]here 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.” Id. Thus, the

 

3 Compare Maj. Op. at 12 n.4 (“We need not, and do not, consider the

meaning of the phrase ‘conspiring . . . to commit . . . a drug trafficking

offense’ as it relates to conspiracy convictions under state law, for

example.” (quotationmarks omitted))withRodriguez-Escareno, 700 F.3d

at 754 n.2 (“We imply no position on the relevance of this reasoning to

applying the enhancement to convictions for conspiracies to commit

state-law offenses.”).
UNITED STATES V. RIVERA-CONSTANTINO 17

majority leaves to future cases the unenviable task of divining

how to make today’s holding a narrow one.4

4. Separately, because Congress used the word

“conspiracy” both for crimes with an overt act element and

for others without such an element, our case law that

recognizes when Congress “has already supplied [a federal

definition],” Maj. Op. at 7 (quoting Estrada-Espinoza v.

Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc))5

, is

inapposite. Congress has not supplied a single set of

elements that define “conspiracy” for us to use in interpreting

U.S.S.G. § 2L1.2 cmt. n.5. Compare 21 U.S.C. § 846 (not

requiring an overt act) with 18 U.S.C. § 371 (requiring an

overt act). “Parallel federal crimes are probative, but not

independently determinative, of the contemporary, generic

definition of an offense.” Garcia-Santana, 774 F.3d at 535.

4 The Fifth Circuit in Pascacio-Rodriguez provided alternative bases for

its holding that a state conviction for conspiracy to commit murder

qualified for a sixteen-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). Compare id. at 367–68 with Maj. Op. at 8 n.3. The

Fifth Circuit explained that “the generic, contemporary meaning of

‘conspiracy to commit murder’ does not require an overt act” and that the

“language and context of § 2L1.2 indicate that an overt act is not required

for a conspiracy to commit murder.” Pascacio-Rodriguez, 749 F.3d at

367–68. Whereas both bases could lead to the same result in the Fifth

Circuit, Garcia-Santana already has determined the generic federal

definition of conspiracy in our circuit. See Garcia-Santana, 774 F.3d at

537.

5 Cf. United States v. Gonzalez-Corn, No. 13-50480, slip op. at 4, 9 (9th

Cir. July 17, 2015) (declining to apply Taylor in reviewing a prior

conviction when that conviction’s “statutory scheme” was incorporated

into the INA, which cross-references 18 U.S.C. § 924(c)(2)).
18 UNITED STATES V. RIVERA-CONSTANTINO

Focusing on what the majority considers the

“overwhelmingly likely” intention of the Sentencing

Commission “at least with regards to federal drug trafficking

conspiracies,” Maj. Op. at 8, disregards Garcia-Santana and

the structure of the Sentencing Guidelines. Both require us

to determine and apply the generic meaning of “conspiracy.” 

See Garcia-Santana, 774 F.3d at 535–37 (focusing on “the

generic definition of conspiracy”); U.S.S.G. § 2L1.2(b)(1)(A)

& cmt. n.5 (requiring application of “conspiring” to not only

federal, state, and local drug trafficking offenses, but also to

crimes of violence, firearms offenses, child pornography

offenses, national security offenses, human trafficking

offenses, and alien smuggling offenses).6 Although the

categorical approach at times is underinclusive, cf. GarciaSantana, 774 F.3d at 539, we are obligated to follow Taylor,

 

6

 The authors of Federal Sentencing Law and Practice have observed:

[The Fifth Circuit’s statement, “There is no reason to

search outside the Guidelines for a definition of

‘conspiracy’ applicable to this enhancement. 

Application Note 5 is a clear statement by the

Sentencing Commission that the enhancement applies

to conspiracies to commit federal drug trafficking

offenses”] seems to sidestep the issue raised by the

defendant,—what does “conspiracy” mean as used in

application note 5? Although a conviction for

conspiracy under 21 U.S.C. § 846 does not require

proof of an overt act, the general conspiracy offense in

18 U.S.C.A. § 371 does. Application note 5 is not

limited to conspiracy to commit a drug trafficking

offense; it also encompasses conspiracy to commit a

crime of violence and other offenses that would be

prosecuted under 18 U.S.C. § 371.

Thomas W. Hutchison et al., Federal Sentencing Law and Practice

§ 2L1.2 n.300 (quoting Rodriguez-Escareno, 700 F.3d at 754).
UNITED STATES V. RIVERA-CONSTANTINO 19

Garcia-Santana, and other relevant precedent in interpreting

the enhancement provisions in § 2L1.2, including conspiracy

offenses. Garcia-Santana defined generic federal conspiracy,

and, I would apply it here.

Further, the majority cites United States v. Shabani,

513 U.S. 10 (1994), to buttress its holding. However, we

already have distinguished Shabani as one of “a line of

Supreme Court cases interpreting ‘conspiracy’ as used in

specific federal criminal statutes, rather than in the generic

federal conspiracy statute.” Garcia-Santana, 774 F.3d at 537

(citing Shabani, among other cases). “[T]hose cases explain

how courts should interpret federal statutes criminalizing

conspiracies.” Id. at 538. But provisions that assign

“collateral consequences . . . to convictions from all

jurisdictions, not merely to federal convictions,” id., are

distinct.

5. Finally, following Garcia-Santana and Taylor yields

a result consistent with the purpose and structure of the

Sentencing Guidelines. First, a prior conspiracy conviction

that lacks an overt act requirement still may constitute an

aggravated felony and trigger an eight-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(C), alleviating concerns about

underinclusiveness. See Garcia-Santana, 774 F.3d at 539

n.9; § 2L1.2(b)(1)(C) (“a conviction for an aggravated felony,

increase by 8 levels”). Second, reading in context other

references in the Guidelines to “conspiracy” demonstrates

that they are meaningfully distinct from § 2L1.2(b)(1)(A)(i). 

The majority cites U.S.S.G. § 2D1.1, “Unlawful

Manufacturing, Importing, Exporting, or Trafficking

(Including Possession with Intent to Commit These

Offenses); Attempt or Conspiracy,” and U.S.S.G. § 2X1.1,

“Attempt, Solicitation, or Conspiracy (Not Covered by a
20 UNITED STATES V. RIVERA-CONSTANTINO

Specific Offense Guideline).” See Maj. Op. at 10. Yet both

reference specific federal statutes, not generic local, state, and

federal offenses. See, e.g., U.S.S.G. § 2D1.1 (referencing,for

instance, convictions under § 841(b)(1)A)); U.S.S.G. § 2X1.1

cmt. (listing statutory provisions, including 18 U.S.C. §§ 371,

372, 2271, 2282A, 2282B). And the title of § 2D1.1 lists

“Attempt or Conspiracy” after a semicolon that follows a

listing of drug offense types. By contrast, Application Notes

1(B)(iv) and 5 under § 2L1.2 lack any such cross-references

to federal statutes and apply to more than just drug trafficking

offenses. See U.S.S.G. § 2L1.2(b)(1)(A) (including crimes of

violence, firearms offenses, child pornography offenses,

national security offenses, human trafficking offenses, alien

smuggling offenses, in addition to drug trafficking offenses). 

In sum, following Garcia-Santana and Taylor to define

generic conspiracy recognizes the purpose and structure of

the Sentencing Guidelines.

For these reasons, I would reverse Rivera-Constantino’s

sentence and remand with directions to the district court to

consider in the first instance whether his prior conspiracy

conviction under § 846 warrants an eight-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(C) as an aggravated felony.