IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-41038

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ELMER GODOY-CASTANEDA,

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

U.S.D.C. No. 7:13-CV-902

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant Elmer Godoy-Castaneda pleaded guilty to being unlawfully 

present in the United States following deportation. Godoy-Castaneda appeals 

his sentence, arguing that the district court incorrectly concluded that his prior 

conviction in New York for conspiracy in the second degree and solicitation in 

the second degree relating to second-degree murder was a crime of violence 

under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines Manual 

(“U.S.S.G.” or the “Guidelines”). We AFFIRM the district court’s judgment.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 7, 2015

Lyle W. Cayce

Clerk

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I.

Godoy-Castaneda was charged with being unlawfully present in the 

United States after deportation in violation of 8 U.S.C. § 1326(a) and (b). 

Godoy-Castaneda pleaded guilty to the charge without a plea agreement.

The presentence report (“PSR”) concluded that Godoy-Castaneda had a 

total offense level of 22 and a criminal history category of IV, applying a 16-

level enhancement for a crime of violence pursuant to U.S.S.G. 

§ 2L1.2(b)(1)(A)(ii). The enhancement was based upon Godoy-Castaneda’s 

previous conviction in New York state for five counts of second-degree 

conspiracy and five counts of second-degree solicitation in connection with a 

second-degree murder.1 With an additional one-level reduction for acceptance 

of responsibility, the Guidelines range became 57 to 71 months. GodoyCastaneda objected to the 16-level crime of violence enhancement only on the 

following grounds: (1) that solicitation is not listed in the application notes to 

§ 2L1.2 and (2) that the definition of “conspiracy” under New York law does 

not fit within the generic, contemporary meaning of “conspiracy.” 

The district court overruled Godoy-Castaneda’s objections and sentenced 

Godoy to 57 months. Godoy-Castaneda timely appealed.

II.

Where a sentencing error is preserved, we review a district court’s 

interpretation or application of the Guidelines de novo and its factual findings 

for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 

2008) (citation omitted). If the defendant fails to preserve an error, we review 

only for plain error. United States v. Chavez-Hernandez, 671 F.3d 494, 497 

(5th Cir. 2012). “Plain error review requires four determinations: whether 

there was error at all; whether it was plain or obvious; whether the defendant 

 

1 Godoy-Castaneda pleaded guilty to all ten counts of the New York indictment.

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has been substantially harmed by the error; and whether this court should 

exercise its discretion to correct the error in order to prevent a manifest 

miscarriage of justice.” Id. 

On appeal, Godoy-Castaneda argues for the first time that the district 

court erred in applying the 16-level enhancement because neither conspiracy 

in the second degree nor solicitation in the second degree under New York law 

qualifies as a crime of violence. Godoy-Castaneda further argues that the 

district court plainly erred in finding that the underlying offense, seconddegree murder under New York law, qualifies as “murder” under § 2L1.2. 

Reviewing for plain error, we disagree.

Under the Guidelines, a defendant convicted of illegal reentry is subject 

to a 16-level sentencing enhancement if he was deported following a prior 

conviction for a crime of violence. See § 2L1.2(b)(1)(A)(ii). The Application 

Notes define a “crime of violence” in two ways: first, as one of several 

enumerated offenses, including murder and conspiracy, and, second, as “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.” § 2L1.2, comment n.1(B)(iii). This court applies “slightly different 

methodologies to determine whether a prior conviction constitutes a crime of 

violence under each respective definition.” United States v. Herrera-Alvarez, 

753 F.3d 132, 137 (5th Cir. 2014). Both methodologies are “iterations of the 

elements-based categorical approach.” Id. For the enumerated offenses, “we 

conduct a ‘common-sense’ categorical approach, looking to various sources—

such as ‘the Model Penal Code, the LaFave and Scott treatises, modern state

codes, and dictionary definitions’—to define each crime by its ‘generic, 

contemporary meaning.’” Id. (quoting United States v. Moreno-Florean, 542 

F.3d 445, 449 (5th Cir. 2008)); see also United States v. Rodriguez, 711 F.3d 

541, 552 n.17 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013). For the 

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second category, “we analyze whether the offense has as an element the use, 

attempted use, or threatened use of physical force.” Herrera-Alvarez, 753 F.3d 

at 137. Under this provision, force “must rise to the level of ‘destructive or 

violent force’; mere ‘offensive touching’ with a deadly weapon is insufficient.” 

Id. (quoting United States v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007)). 

“Under both approaches, we determine the elements to which a defendant 

pleaded guilty by analyzing the statutory definition of the offense, not the 

defendant’s underlying conduct.” Id. at 137–38 (citing Descamps v. United 

States, 133 S. Ct. 2276, 2281 (2013)). 

We first consider whether the underlying offense, second-degree murder, 

constitutes a crime of violence. See United States v. Ellis, 564 F.3d 370, 372

(5th Cir. 2009) (considering first whether the crime underlying defendant’s 

“attempt” conviction would constitute a crime of violence). Murder is one of 

the enumerated offenses in comment 1(B)(iii) of U.S.S.G. § 2L1.2. We therefore 

consider whether New York’s statute is consistent with the generic, 

contemporary meaning of murder. See Rodriguez, 711 F.3d at 549.

Under New York Penal Law § 125.25, a person is guilty of murder in the 

second degree, a Class A felony, when:

1. With intent to cause the death of another person, he causes the 

death of such person or of a third person . . . ; or

. . . 

3. . . . he commits or attempts to commit robbery, burglary, 

kidnapping, arson, rape in the first degree, criminal sexual act in 

the first degree, sexual abuse in the first degree, aggravated sexual 

abuse, escape in the first degree, or escape in the second degree, 

and, in the course of and in furtherance of such crime or of 

immediate flight therefrom, he, or another participant, if there be 

any, causes the death of a person other than one of the 

participants . . . ;

. . . .

N.Y. PENAL LAW § 125.25(1),(3). 

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Godoy-Castaneda contends that the third subsection of the statute is 

broader than the contemporary, generic meaning of murder. Though LaFave 

and the Model Penal Code recognize felony murder, Godoy-Castaneda argues 

that the third subsection does not necessarily involve conduct that is 

“dangerous to life.” See 2 W.R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 14.5(b) 

(2d ed. 2003) (noting that for felony murder, the “felony attempted or 

committed by the defendant must be dangerous to life”). For example, under 

New York law, a person is guilty of sexual abuse in the first degree if he 

“subjects another person to sexual contact . . . [b]y forcible compulsion.” N.Y.

PENAL LAW § 130.65. Godoy-Castaneda contends that a person could be 

convicted of second-degree murder in New York for touching another person’s 

leg, which is “sexual contact” by “forcible compulsion,” and, when running 

away, that person knocks a third person down, causing that person’s death. 

Godoy-Castaneda argues that this hypothetical is far from the dangerous 

felonies required by the Model Penal Code.

Godoy-Castaneda points to no New York case employing such a farfetched approach. See United States v. Teran-Salas, 767 F.3d 453, 460 (5th 

Cir. 2014) (requiring a “realistic probability, not a theoretical possibility, that 

the State would apply its statute to conduct that falls outside the generic 

definition of a crime” (internal quotation marks and citations omitted)), cert. 

denied, 135 S. Ct. 1892 (2015). Even putting that aside and assuming 

arguendo that Godoy-Castaneda is correct that New York’s second-degree 

murder statute is broader than the enumerated offense of murder, where a 

divisible statute has some sections that qualify as a crime of violence and some 

that do not, we apply the “modified categorical approach”:

Under the modified categorical approach, we may consult a limited 

class of documents, such as indictments and jury instructions, to 

determine which alternative formed the basis of the defendant’s 

prior conviction. The court can then do what the categorical 

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approach demands: compare the elements of the crime of 

conviction (including the alternative element used in the case) 

with the elements of the generic crime, or, as the case may be, 

assess whether the crime of conviction has as an element the use, 

attempted use, or threatened use of physical force. Those records 

are generally limited to . . . the charging document, written plea 

agreement, transcript of plea colloquy, and any explicit factual 

finding by the trial judge to which the defendant assented. By 

reviewing the extra-statutory materials approved in those cases, 

courts c[an] discover ‘which statutory phrase’ contained within a 

statute listing ‘several different’ crimes, ‘covered a prior 

conviction.’

Herrera-Alvarez, 753 F.3d at 138 (internal citations and quotation marks

omitted); see also Shepard v. United States, 544 U.S. 13, 16 (2005) (holding 

that, under the modified categorical approach, courts are “generally limited to 

examining the statutory definition, charging document, written plea 

agreement, transcript of plea colloquy, and any explicit factual finding by the 

trial judge to which the defendant assented”).

Godoy-Castaneda’s indictment and judgment do not explicitly identify 

the statutory subsection for the underlying offense of second-degree murder. 

For the five conspiracy counts, the indictment states that Godoy-Castaneda 

acted “with intent that conduct constituting the crime of Murder in the Second 

degree . . . be performed [and] agreed with one or more persons to engage in or 

cause the performance of such conduct.” Similarly, with respect to the five 

solicitation counts, the indictment states that Godoy-Castaneda “did solicit, 

request, command, importune, or otherwise attempted to cause such person” 

to “engage in conduct constituting the crime of Murder in the Second Degree.” 

However, in the description of the overt acts associated with the conspiracy, 

the indictment alleges that Godoy-Castaneda, with his co-conspirators, paid a 

third party to “fund the murders,” met with the third party to identify the 

“intended murder target,” and provided a photograph of the “intended murder 

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target.” Godoy-Castaneda pleaded guilty to all of the counts of the indictment. 

The language in the indictment indicates that the underlying second-degree 

murder fell within the first subsection, as Godoy-Castaneda solicited a third

party and conspired with others to cause the death of a person with the intent 

to cause the death of that person. See N.Y. PENAL LAW § 125.25(1). The first 

subsection of the second-degree murder statute is within the generic, 

contemporary meaning of murder. 

Godoy-Castaneda did not object to the enhancement on this basis before 

the district court. Thus, we review this issue for plain error only. ChavezHernandez, 671 F.3d at 497. To demonstrate plain error, a defendant must 

show a forfeited error that is, inter alia, clear or obvious. See Puckett v. United 

States, 556 U.S. 129, 135 (2009). In light of the record, which shows that the 

indictment to which he pleaded guilty alleges that Godoy-Castaneda, with

others, identified the murder target and paid another person to carry out the

murder, the implicit conclusion that § 125.25(1) is the statute of conviction and 

application of the enhancement on this basis is not clear or obvious error.

Next, we turn to the crimes of conviction. Godoy-Castaneda was 

convicted of conspiracy in the second degree and solicitation in the second 

degree for his role in the second-degree murder. It is not clear that GodoyCastaneda preserved the arguments as to solicitation.2 As we conclude that 

solicitation supports the “crime of violence” enhancement even under a less 

deferential review standard, we do not decide the standard of review and we 

 

2 In the district court, Godoy-Castaneda objected to the enhancement with respect to 

his solicitation conviction on the basis that solicitation was not an enumerated offense. He 

did not argue before the district court that solicitation is not a crime of violence because it 

follows a unilateral approach. However, he did make that argument with respect to the use 

of his conspiracy convictions. As the substance of the “unilateral” argument was before the 

district court, one could argue that the error was preserved. See United States v. Rodriguez, 

523 F.3d 519, 522, 526 & n.1 (5th Cir. 2008) (applying ordinary standard of review where 

substance of the defendant’s arguments was before the district court). 

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do not decide whether conspiracy in the second degree under New York law 

constitutes a crime of violence.

Under New York state law, “[a] person is guilty of criminal solicitation 

in the second degree when, with intent that another person engage in conduct 

constituting a class A felony, he solicits, requests, commands, importunes or 

otherwise attempts to cause such other person to engage in such conduct.” N.Y.

PENAL LAW § 100.10. Godoy-Castaneda contends that the crime of conspiracy 

under New York law does not constitute a “crime of violence” because New 

York’s solicitation statute is similar to its conspiracy statute, and federal law 

does not recognize a unilateral conspiracy (such as conspiring with an 

undercover government agent). 

We rejected this reasoning in United States v. Mendez-Casarez, 624 F.3d 

233, 240 (5th Cir. 2010), abrogated on other grounds by Rodriguez, 711 F.3d 

541.3 In Mendez-Casarez, we considered whether a North Carolina solicitation 

statute could be a “crime of violence” even though solicitation is not one of the 

enumerated crimes. To this end, we compared “the mens rea (mental state) 

and actus reus (action or conduct) of the prior offense to those of conspiracy, 

aiding and abetting, and attempt” to determine whether the prior offense is 

“clearly less serious” than the enumerated offense. Id. at 238; see also MejiaAguilar, 575 F. App’x at 237 (applying the same methodology to determine 

whether solicitation under Arizona law is a crime of violence). Upon comparing 

 

3 Rodriguez only abrogated Mendez-Casarez “to the extent that it could be read as 

holding that courts should look always to the majority of state codes—as well as the Model 

Penal Code, federal law, and criminal treatises—when deriving the generic, contemporary 

meaning of an undefined offense category in a federal sentencing enhancement.” United 

States v. Mejia-Aguilar, 575 F. App’x 233, 237 (5th Cir. 2014) (unpublished) (emphasis in 

original) (quotation marks and citations omitted). “The continued vitality of [MendezCasarez] was otherwise unaffected by Rodriguez.” Id. Even if we employed the Rodriguez

methodology, the outcome would be the same, as New York’s solicitation statute is consistent 

with “the generic, dictionary meaning of ‘solicitation.’” Id. at 238.

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the North Carolina statute to the “generic, contemporary meaning” of 

conspiracy, we found that the “mens rea and actus reus of solicitation [under 

North Carolina law] are not clearly less serious than those of conspiracy.” 

Mendez-Casarez, 624 F.3d at 239. First, North Carolina’s solicitation statute 

required the same mens rea as conspiracy: “the defendant must intend that 

the underlying crime be committed.” Id. Second, “both offenses involve the 

defendant taking a step, whether agreeing or soliciting, towards fulfilling his 

intention that the crime be committed.” Id. at 240. Moreover, the fact that 

solicitation did not require an overt act, whereas conspiracy statutes often 

require an overt act, did not render solicitation “clearly less serious” than 

conspiracy. Id. In reaching the conclusion, we explicitly rejected the argument 

“that the response of the other person determines the seriousness of the acts 

of soliciting or agreeing.” Id. 

The New York statute here is similar to the North Carolina statute. Like 

the North Carolina law, the New York solicitation statute requires proof that 

the defendant intended that the underlying crime be committed (the mens rea) 

and that the defendant “solicits, requests, commands, importunes or otherwise 

attempts to cause [another] person to engage in such conduct” (the actus reus). 

N.Y. PENAL LAW § 100.10; People v. Cheatham, 239 A.D.2d 595, 596 (N.Y. App. 

Div. 1997). As we have previously found that it is the act of the defendant, and 

not the other person, that determines the seriousness of the act of soliciting, 

we reject Godoy-Castaneda’s argument that solicitation cannot be a crime of 

violence because it is unilateral. We conclude that Godoy-Castaneda fails to 

show reversible error in the district court’s conclusion that conviction for 

solicitation in the second degree based on the underlying crime of seconddegree murder under New York law constitutes a crime of violence for the 

purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). 

AFFIRMED.

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