IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40264

UNITED STATES OF AMERICA, 

Plaintiff–Appellee,

v.

LUCIANO PASCACIO-RODRIGUEZ,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before WIENER, DENNIS, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Luciano Pascacio-Rodriguez was convicted under 8 U.S.C. § 1326(a) and

(b) as an alien unlawfully present in the United States following deportation. 

He appeals his sentence of 70 months of imprisonment, contending that the

district court erred in concluding that his prior state-court conviction for

conspiracy to commit murder warranted a 16-level enhancement under § 2L1.2

of the Sentencing Guidelines. Pascacio-Rodriguez asserts that the Nevada

statute under which he was convicted did not require proof of an overt act in

furtherance ofthe conspiracy;the generic, contemporary meaning of “conspiracy”

requires an overt act; as used in the Guidelines, “conspiracy” refers to the

United States Court of Appeals

Fifth Circuit

F I L E D

April 11, 2014

Lyle W. Cayce

Clerk

 Case: 12-40264 Document: 00512593851 Page: 1 Date Filed: 04/11/2014
No. 12-40264

generic, contemporary meaning of that term; and, therefore, his prior state-court

conviction does not constitute a “crime of violence” under the Guidelines. 

We conclude that the Guidelines do not require an overt act as an element

of conspiracy to commit murder. The district court did not err in imposing the

16-level enhancement, and we affirm.

I

Pascacio-Rodriguez pleaded guilty to violating 8 U.S.C. § 1326(a) and (b)

for being unlawfully present in the United States following his deportation. 

Only his sentence is at issue in this appeal.

Pascacio-Rodriguez had been convicted of conspiracy to commit murder

under Nevada state law prior to the time that he was removed from the United

States. The Presentence Investigation Report (PSR) recommended a 16-level

enhancement under § 2L1.2(b)(1)(A) of the Sentencing Guidelines based on that

2003 Nevada offense. Pascacio-Rodriguez objected, contending that the Nevada

statute under which he was convicted did not require proof of an overt act in

furtherance of the conspiracy and therefore that the Nevada conspiracy offense

was “broader than the contemporary generic definition of ‘conspiracy.’” 

The district court overruled Pascacio-Rodriguez’s objection, noting that a

number of federal conspiracy statutes do not require an overt act and concluding

that the overt-act requirement was not “an important vital part of the generic

definition of ‘conspiracy.’” The district court calculated a total offense level of 21

and a criminal history category of VI, but it reduced the criminal history

category by one level because the district court concluded that PascacioRodriguez’s criminal history had been overrepresented. The corresponding

advisory Guidelines range of imprisonment was 70 to 87 months, and, after

considering the applicable factors under 18 U.S.C. § 3553(a), the district court

sentenced Pascacio-Rodriguez to 70 months of imprisonment. On appeal,

Pascacio-Rodriguez contends that the district court erroneously imposed the 16-

2

 Case: 12-40264 Document: 00512593851 Page: 2 Date Filed: 04/11/2014
No. 12-40264

level enhancement, leading to an incorrect calculation of the Guidelines range. 

Absent the 16-level enhancement, the advisory Guidelines range would have

been 33 to 41 months of imprisonment.

II

The 16-level enhancement at issue applies if the defendant was deported

after he had been convicted of “a crime of violence.”1 The term “crime of

violence” as defined in the commentary to § 2L1.2 of the Sentencing Guidelines

includes the offense of “murder” under federal, state, or local law,2and includes

“conspiring” to commit murder.3 

The Nevada statutes under which Pascacio-Rodrigez was convicted of

conspiracy to commit murder did not include an overt act as an element of the

offense. Pascacio-Rodriguez pleaded guilty to and was convicted of conspiring

to commit murder “in violation of [sections] 199.480, 200.010 [and] 200.030” of

the Nevada Revised Statutes that were in effect in 2003. Section 200.010

defined murder,4and section 200.030 defined the degrees of murder and the

1 U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (2011).

2

Id. § 2L1.2 cmt. n.1(B)(iii). The definition provides in its entirety:

“Crime of violence” means any of the following offenses under federal, state, or

local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex

offenses (including where consent to the conduct is not given or is not legally

valid, such as where consent to the conduct is involuntary, incompetent, or

coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion,

extortionate extension of credit, burglary of a dwelling, or 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.

Id.

3

Id. § 2L1.2 cmt. n.5. The comment provides as follows: “Aiding and Abetting,

Conspiracies, and Attempts.—Prior convictions of offenses counted under subsection (b)(1)

include the offenses of aiding and abetting, conspiring, and attempting, to commit such

offenses.” Id.

4 NEV. REV. STAT. § 200.010 (2003) (amended 2005). The 2003 version of the statute

provides:

3

 Case: 12-40264 Document: 00512593851 Page: 3 Date Filed: 04/11/2014
No. 12-40264

range of penalties.5 Section 199.480(1)(b) sets forth the penalties for conspiracy

to commit murder and provides for a minimum term of imprisonment of not less

than two years and a maximum term of not more than ten years.6 A separate

Nevada statute, section 199.490, provides: “In any such proceeding for violation

of NRS 199.480 [which includes conspiracy to commit murder], it shall not be

necessary to prove that any overt act was done in pursuance of such unlawful

conspiracy or combination.”7 

Nevertheless, the information by which Pascacio-Rodriguez was charged

in Nevada expressly alleged multiple overt acts by Pascacio-Rodriguez or his

cohort in furtherance of the conspiracy to commit murder, including the

procurement of a firearm, firing the weapon at and wounding two individuals,

and fleeing from the crime scene with the firearm:

COUNT I - CONSPIRACY TO COMMIT MURDER

defendants did then and there meet with each other and

between themselves, and each of them with the other, wilfully,

unlawfully, and feloniously conspire and agree to commit a crime,

to-wit: murder, and in furtherance of said conspiracy, Defendants

did commit the acts as set forth in Counts 2 and 3 [sic], said acts

being incorporated by this reference as though fully set forth herein.

COUNT 2 - DISCHARGING FIREARM OUT OF MOTOR

VEHICLE

Murder is the unlawful killing of a human being, with malice aforethought,

either express or implied, or caused by a controlled substance which was sold,

given, traded or otherwise made available to a person in violation of chapter 453

of NRS. The unlawful killing may be effected by any of the various means by

which death may be occasioned.

Id.

5 NEV. REV. STAT. § 200.030 (2001) (amended 2007).

6 NEV. REV. STAT. § 199.480 (2003). Pascacio-Rodriguez was sentenced by the Nevada

court to a minimum of 24 months of imprisonment and a maximum of 72 months of

imprisonment.

7 NEV. REV. STAT. § 199.490 (2003).

4

 Case: 12-40264 Document: 00512593851 Page: 4 Date Filed: 04/11/2014
No. 12-40264

defendants did then and there wilfully, unlawfully, and

feloniously, while in a motor vehicle within an area designated by

City or County Ordinance, as a populated area for the purpose of

prohibiting the discharge of weapons, maliciously or wantonly

discharge, or cause a firearm to be discharged out of the motor

vehicle, the Defendants being liable under the following principles

of criminal liability, to-wit: by the Defendants acting together in

furtherance of the conspiracy set forth in Count 1 above, by which

each conspirator is liable for the acts of any co-conspirator in

furtherance of the conspiracy, by Defendant HECTOR

LUQUE-RAMIREZ, aka Hector Luqueramirez, shooting at and into

the bodies of the said RICKIE SLAUGHTER and/or THOMAS

EVANS with said firearm, by Defendant LUCIANO PASCACIO

afterward attempting to flee the scene with the firearm used to

shoot the said RICKIE SLAUGHTER and/or THOMAS EVANS; the

Defendants aiding or abetting each other as follows: by going

together prior to the crime to acquire a firearm, by going together to

and from the crime scene, by fleeing the crime scene together, and

by directly and indirectly counseling, encouraging, commanding,

inducing, and procuring each other to commit the acts set forth

herein; the said Defendants acting in concert throughout.

Pascacio-Rodriguez signed a written plea agreement in which he pleaded guilty

to all of the allegations in the information.8

The first question we consider is whether, assuming that the Guidelines

require an overt act as an element of conspiracy to commit murder, the fact that

Pascacio-Rodriguez was expressly charged with and pleaded guilty to overt acts

suffices to establish a crime of violence for purposes of the 16-level sentencing

enhancement. A recent Supreme Court decision indicates that it does not. In

Descamps v. United States,

9 which considered the meaning of “a violent felony”

8 The signed plea agreement states in pertinent part: “I hereby agree to plead guilty to:

one (1) count of CONSPIRACY TO COMMIT MURDER (Felony - NRS 200.010, 200.030,

199.480) and one (1) count of DISCHARGING FIREARM OUT OF MOTOR VEHICLE (Felony

— NRS 202.287), as more fully alleged in the charging document attached hereto as Exhibit

‘1'.” (emphasis added).

9

133 S. Ct. 2276 (2013).

5

 Case: 12-40264 Document: 00512593851 Page: 5 Date Filed: 04/11/2014
No. 12-40264

under the Armed Career Criminal Act, the Supreme Court held that sentencing

courts may not consult additional documents (the so-called modified categorical

approach) “when a defendant was convicted under an ‘indivisible’ statute—i.e.,

one not containing alternative elements—that criminalizes a broader swath of

conduct than the relevant generic offense.”10 Only the statute of conviction may

be consulted if the statute is indivisible.11

The state conviction at issue in Descamps was for burglary under

California law.12 The Supreme Court has long held that Congress intended for

the enumerated offenses in the ACCA, which include burglary, to refer only to

the “generic” crime, meaning “the offense as commonly understood.”13 The

Supreme Court explained that the generic offense of burglary “requires an

unlawful entry along the lines of breaking and entering,” but the California

statue at issue in Descamps did not.14 The district and appellate courts in

Descamps had held that because the defendant had admitted to the elements of

generic burglary during his California prosecution, his prior conviction should

10 Descamps, 133 S. Ct. at 2281-82 (construing the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)).

11

Id. at 2282.

12

Id. (citing the defendant’s conviction under California Penal Code Ann. § 459 (West

2010)).

13

Id. at 2281. But see United States v. Castleman, No. 12-1371, 2014 WL 1225196, at

*4-6 (U.S. Mar. 26, 2014) (explaining that when Congress uses common-law terms, it “intends

to incorporate the well-settled meaning” of the terms, “except where that meaning does not

fit” (internal quotation marks omitted) and using the common-law meaning of “force” in

construing the ACCA’s definition of “a misdemeanor crime of domestic violence”); Shepard v.

United States, 544 U.S. 13, 26 (2005) (employing the modified categorical approach that

permitted sentencing courts to consult certain restricted parts of the record of the prior

conviction to determine if the conviction was for a generic crime enumerated in the ACCA);

Taylor v. United States, 495 U.S. 575, 599-602 (1990) (adopting a formal categorical approach

based on the elements of the generic crime).

14 Descamps, 133 S. Ct. at 2285-86.

6

 Case: 12-40264 Document: 00512593851 Page: 6 Date Filed: 04/11/2014
No. 12-40264

be considered to be a conviction for a violent felony.15 The Supreme Court

disagreed, holding that “whether he [the defendant] admitted to breaking and

entering is irrelevant.”16

In Descamps, the Supreme Court described a divisible statute as one that

“comprises multiple, alternative versions of the crime,”17 while an indivisible

statute is “one not containing alternative elements.”18 In the present case, the

Nevada statute of conspiracy that applies to conspiracy to commit murder is

indivisible regarding the requirement of an overt act: An overt act is not an

element of the Nevada conspiracy offense for which Pascacio-Rodriguez was

convicted. As in Descamps, “[t]he modified [categorical] approach . . . has no role

to play in this case.”19 We must therefore determine whether the Guidelines

require an overt act as an element of a conspiracy to commit murder.

III

The district court held that Pascacio-Rodriguez’s prior Nevada conviction

for conspiracy to commit murder was a crime of violence within the meaning of

the Guidelines. We review the district court’s interpretation of the Guidelines

and the commentary de novo.20

Theoretically, at least, there is more than one approach to construing

§ 2L1.2(b)(1)(A)(ii). One is to discern from the language that the Sentencing

15

Id. at 2282-83.

16

Id. at 2286.

17

Id. at 2284.

18

Id. at 2281.

19

Id. at 2285.

20 United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011) (per curiam) (“[T]his

court reviews de novo the district court’s interpretation and application of the Guidelines,

including whether a defendant’s prior conviction qualifies as a ‘crime of violence’ within the

meaning of [U.S.S.G. § 2L1.2].” (second alteration in original) (quoting United States v.

Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011)) (internal quotation marks omitted)).

7

 Case: 12-40264 Document: 00512593851 Page: 7 Date Filed: 04/11/2014
No. 12-40264

Commission used whether it intended for an overt act to be an element of every

conspiracy conviction, regardless of the nature of the underlying offense, or

whether the nature of the underlying offense should be considered. Another

interpretive method is to employ the categorical approach to discern the

elements of “conspiracy” or “conspiracy to commit murder,” irrespective of the

language of § 2L1.2(b)(1)(A)(ii). We conclude that under either approach,

§ 2L1.2(b)(1)(A)(ii) does not require an overt act as an element of conspiracy to

commit murder.

A

This court has said that in determining whether a prior conviction was for

an enumerated offense and therefore a crime of violence within the meaning of

the Guidelines, we generally employ the categorical approach,21

as explicated by

the Supreme Court in Taylor v. United States,22a case that, like Descamps,

construed the Armed Career Criminal Act (ACCA).23 When using the categorical

approach, we “compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense

as commonly understood.”24In a “narrow range of cases,” we may employ an

21 See United States v. Najera-Mendoza, 683 F.3d 627, 629 (5th Cir. 2012) (citing United

States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012)). But see United States v.

Charles, 301 F.3d 309, 313-14 (5th Cir. 2002) (en banc) (holding that, in applying U.S.S.G.

§ 4B1.2, the court will consider the elements of the charges against a defendant, even if they

differ from the elements of the statute of conviction, because the commentary to U.S.S.G.

§ 4B1.2 “states that [o]ther offenses are included as crimes of violence if . . . the conduct set

forth (i.e., expressly charged) in the count of which the defendant was convicted . . . by its

nature, presented a serious potential risk of physical injury to another” (internal quotation

marks omitted) (citing United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992))).

22

495 U.S. 575 (1990).

23 Taylor, 495 U.S. at 577 (“In this case we are called upon to determine the meaning

of the word ‘burglary’ as it is used in . . . 18 U.S.C. § 924(e).”); see also Descamps, 133 S. Ct.

at 2281-82.

24 Descamps, 133 S. Ct. at 2281.

8

 Case: 12-40264 Document: 00512593851 Page: 8 Date Filed: 04/11/2014
No. 12-40264

exception to the categorical approach, known as the modified categorical

approach,25 which is derived from the Supreme Court’s decision in Shepard v.

United States,

26

another case in which the Court construed the ACCA.27 As

already discussed, Descamps teaches thatthe modified categorical approach may

not be applied to an indivisible statute of conviction. The Nevada statute under

which Pascacio-Rodriguez was convicted does not list potential elements in the

alternative, with one alternative being the commission of an overt act; instead,

it provides that “it shall not be necessary to prove that any overt act was done

in pursuance of such unlawful conspiracy.”28

Neither “conspiracy” nor “murder” is defined by the Guidelines. Utilizing

the categorical approach, our task is to determine the elements of the generic

offense of conspiracy to commit murder. Recently, in United States v.

Rodriguez,

29

this court set forth a methodology for defining enumerated, noncommon law offenses that are not defined by the Guidelines, holding that we

derive the meaning of such offenses from “common usage as stated in legal and

other well-accepted dictionaries.”30 We expressly “limit[ed] our holding [in

Rodriguez] to offense categories that are not defined at common law” and

explained that “[w]e leave the mechanics of how we determine the ‘generic,

contemporary meaning’ of common-law offense categories for another day.”31

Because both murder and conspiracy are offenses that were recognized by the

25 United States v. Gonzalez-Terrazas, 529 F.3d 293, 297 (5th Cir. 2008).

26

544 U.S. 13 (2005).

27 Shepard, 544 U.S. at 15-16.

28 NEV. REV. STAT. § 199.490 (2003).

29

711 F.3d 541 (5th Cir. 2013) (en banc).

30 See Rodriguez, 711 F.3d at 552.

31

Id. at 552 n.17.

9

 Case: 12-40264 Document: 00512593851 Page: 9 Date Filed: 04/11/2014
No. 12-40264

common law,32 Rodriguez does not govern how we are to construe the Guidelines

in this appeal. This court’s pre-Rodriguez precedent held that under the

categorical approach, we “employ[] a common sense approach based on the

generic, contemporary meaning of the terms used in the Guidelines.”33

In divining the generic, contemporary meaning, we look to a number of

sources, including federal law, the Model Penal Code, treatises, and modern

state codes.34 At common law, it was not necessary to allege or prove an act in

furtherance of a conspiracy.35 The Supreme Court has held that, as a general

proposition, courts should construe federal statutes based on the assumption

that Congress intended to adopt the common-law meaning of statutory terms

unless Congress has indicated otherwise.36 Accordingly, the Supreme Court has

not read an overt-act requirement into federal conspiracy offenses.37 We note

32 See id. at 558 (noting that “by the 1600’s . . . judges . . . had created the felon[y] of

murder” and later created conspiracy in 1664 (quoting WAYNE R. LAFAVE, CRIMINAL LAW

§ 2.1(b) (5th ed. 2010))).

33 United States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011) (quoting United States v.

Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011)) (internal quotation marks omitted); see

also Hernandez-Galvan, 632 F.3d at 196 (applying the generic, contemporary meaning test to 

a defendant’s attempt conviction to determine whether the district court erred in applying the

§ 2L1.2(b)(1)(A)(ii) enhancement).

34 United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 2012) (citing United

States v. Iniguez-Barba, 485 F.3d 790, 791 (5th Cir. 2007)); United States v. Tellez-Martinez,

517 F.3d 813, 815 (5th Cir. 2008) (per curiam).

35 See United States v. Shabani, 513 U.S. 10, 13-14 (1994) (“We have consistently held

that the common law understanding of conspiracy ‘does not make the doing of any act other

than the act of conspiring a condition of liability.’” (quoting Nash v. United States, 229 U.S.

373, 378 (1913))).

36 See id. at 13 (“Nash and Singer follow the settled principle of statutory construction

that, absent contrary indications, Congress intends to adopt the common law definition of

statutory terms.”); see also United States v. Castleman, No. 12-1371, 2014 WL 1225196, at *4-5

(U.S. Mar. 26, 2014) (defining the term “physical force” in the ACCA in reference to its

“established common-law meaning”).

37 See id. at 13-15.

10

 Case: 12-40264 Document: 00512593851 Page: 10 Date Filed: 04/11/2014
No. 12-40264

that, in Taylor, “conspiracy” to commit one of the offenses enumerated in the

ACCA was not at issue. The Supreme Court held in Taylor that Congress had

indicated that it did not intend to adopt the common-law definition when it used

the term “burglary” in the ACCA.38 The Court discerned that Congress instead

intended “burglary” to have a “generic, contemporary meaning” when that term

was used in the ACCA.39 The common-law definition of conspiracy is

enlightening in determining the generic, contemporary meaning of conspiracy

to commit murder, but it is not dispositive.

A survey of federal conspiracy statutes reveals that Congress has

sometimes required an overt act, but more often it has not. The general federal

conspiracy provision, which applies to conspiracy “to commit any offense against

the United States, or to defraud the United States . . . in any manner or for any

purpose,” requires an overt act.40In more specifically tailored conspiracy

statutes, the majority do not require an overt act. A review of conspiracy

provisions that might generally be described as pertaining to nonviolent crimes

38 Taylor v. United States, 495 U.S. 575, 598 (1990).

39

Id.

40

18 U.S.C. § 371 (“Iftwo or more persons conspire either to commit any offense against

the United States, or to defraud the United States, or any agency thereof in any manner or for

any purpose, and one or more of such persons do any act to effect the object of the conspiracy,

each shall be fined under this title or imprisoned not more than five years, or both.”).

11

 Case: 12-40264 Document: 00512593851 Page: 11 Date Filed: 04/11/2014
No. 12-40264

reveals that at least 15 of such provisions require an overt act,41 while at least

99 do not.42

41

18 U.S.C. § 793(g) (conspiracy to gather, transmit, or lose defense information); id.

§ 794(c) (conspiracy to gather or deliver defense information to aid a foreign government); id.

§ 831(a)(2), (8) (conspiracy to obtain nuclear material without authorization); id. § 1029(b)(2)

(conspiracy to commit fraud or a related activity in connection with access devices); id.

§ 1365(e) (conspiracy to tamper with consumer products); id. § 1511 (conspiracy to obstruct

state or local law enforcement with intent to facilitate an illegal gambling business); id.

§ 1832(a)(5) (conspiracy to commit theft of trade secrets); id. § 2153(b) (conspiracy to destroy

war material, war premises, or war utilities); id. § 2154(b)(conspiracy to produce defective war

material, war premises, or war utilities); id. § 2155(b) (conspiracy to destroy national-defense

materials, national-defense premises, or national-defense utilities); id. § 2156(b) (conspiracy

to produce defective national-defense material, national-defense premises, or national-defense

utilities); id. § 2388(b) (conspiracy to commit certain nonviolent acts affecting the armed forces

during times of war); 42 U.S.C. § 1761(o)(3) (conspiracy to violate certain provisions regulating

the summer food service program for children); 47 U.S.C. § 509(a)(5) (conspiracy to influence,

prearrange, or predetermine the outcome of a radio contest); 49 U.S.C. § 46505(e) (conspiracy

to carry a weapon or explosive on an aircraft).

42

2 U.S.C. § 441h (conspiracy to make certain fraudulent misrepresentations in a

federal election campaign); 7 U.S.C. § 192(f)-(g) (conspiracy by packers or swine contractors

to engage in certain unlawful practices); id. § 2303(f) (conspiracy to commit unfair trade

practices affecting producers of agricultural products); 8 U.S.C. § 1253(c) (conspiracy to

prevent or hamper the removal of an alien subject to deportation); id. § 1324(a)(1)(A)(v)(I)

(conspiracy to bring in or harbor certain aliens); id. § 1327 (conspiracy to aid or assist certain

aliens to enter the United States); 12 U.S.C. § 617 (conspiracy to use the credit, funds, or the

power of certain corporations to control the prices of commodities); 15 U.S.C. § 1 (conspiracy

to restrain interstate trade or commerce); id. § 2 (conspiracy to monopolize trade); id. § 3

(conspiracy to restrain or monopolize trade or commerce in a Territory of the United States

or in the District of Columbia); id. § 8 (conspiracy to restrain import trade); id. § 76 (conspiracy

to import restricted items during times of foreign war); id. § 77 (conspiracy to furnish facilities

or privileges to ships or persons contrary to a presidential proclamation); id. § 714m(d)

(conspiracy to make false statements, commit embezzlement, commit larceny, or convert

property in relation to the Commodity Credit Corporation); id. § 1644(a)-(b) (conspiracy to

commit credit card fraud or to transport “a counterfeit, fictitious, altered, forged, lost, stolen,

or fraudulently obtained credit card” in interstate or foreign commerce); id. § 1693n(b)(1)-(2)

(conspiracy to use or transport in interstate or foreign commerce a counterfeit, fictitious,

altered, forged, lost, stolen, or fraudulently obtained debit instrument); 16 U.S.C. § 831t(c)

(conspiracy to defraud the Tennessee Valley Authority); 18 U.S.C. § 32(a)(1)-(5), (7)-(8)

(conspiracy to commit certain acts involving the destruction of aircraft or aircraft facilities);

id. § 32(b)(2)-(4) (conspiracy to destroy or cause damage to a civil aircraft registered in a

country other than the United States); id. § 37(a)(2) (conspiracy to damage the facilities of an

international airport); id. § 38(a)(3) (conspiracy to commit fraud involving aircraft or space

vehicle parts in interstate or foreign commerce); id. § 43(a)(2)(A), (C) (conspiracy to damage

or interfere with the operations of an animal enterprise by property damage); id. § 175(a)

(conspiracy to develop, produce, stockpile, transfer, acquire, retain, or possess any biological

12

 Case: 12-40264 Document: 00512593851 Page: 12 Date Filed: 04/11/2014
No. 12-40264

agent, toxin, or delivery system for use as a weapon or to assist a foreign state or an

organization to do so); id. § 175c(c)(1) (conspiracy to “knowingly produce, engineer, synthesize,

acquire, transfer directly or indirectly, receive, possess, import, [or] export . . . variola virus”);

id. § 224 (conspiracy to commit bribery in sporting contests); id. § 229(a)(2) (conspiracy to

“develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain,

own, [or] possess” a chemical weapon); id. § 286 (conspiracy to defraud the United States with

respect to claims); id. § 521(c)(1), (3) (providing a ten-year sentence enhancement for

conspiracy to commit a drug-trafficking crime while belonging to a criminal street gang); id.

§ 555(d) (conspiracy to commit certain offenses related to border tunnels or passages); id.

§ 670(a)(6) (conspiracy to commit theft of medical products); id. § 757 (conspiracy to procure

the escape or to aid escaped prisoners of war or enemy aliens); id. § 799 (conspiracy to violate

regulations ofthe National Aeronautics and Space Administration); id. § 832(a), (c) (conspiracy

to “willfully participate[] in or knowingly provide[] material support or resources” to a foreign

terrorist power’s nuclear weapons program or other weapons-of-mass-destruction program and

conspiracy to “develop or possess a radiological weapon”); id. § 1028(f) (conspiracy to commit

fraud or a related activity in connection with identification documents, authentication

features, and information); id. § 1030(a)(1)-(6), (b) (conspiracy to commit fraud or a related

crime in connection with computers); id. § 1037(a)(5) (conspiracy to falsely represent oneself

as the registrant of five or more Internet Protocol addresses and to initiate commercial

electronic mail messages from those addresses); id. § 1349 (conspiracy to commit mail fraud

or another fraud offense under chapter 63 of title 18); id. § 1362 (conspiracy to damage or

interfere with communication lines, stations, or systems “operated or controlled by the United

States, or used or intended to be used for military or civil defense functions of the United

States”); id. § 1363 (conspiracy to destroy or injure buildings or property within special

maritime or territorial jurisdiction); id. § 1366 (conspiracy to destroy an energy facility); id.

§ 1368 (conspiracy to harm animals used in law enforcement); id. § 1389(a)(1)-(2) (conspiracy

to knowingly destroy or injure the property of a United States serviceman or an immediate

family member on account of the serviceman’s status); id. § 1466A (conspiracy to commit

offenses related to possession and distribution of obscene visual representations of the sexual

abuse of children); id. § 1512(b)-(d), (k) (conspiracy to tamper with a witness, victim, or

informant); id. § 1513(b), (e)-(f) (conspiracy to retaliate against a witness, victim, or informant

through property damage or interference with employment or livelihood); id. § 1521

(conspiracy to retaliate against a federal judge or federal law enforcement officer by false claim

or slander of title); id. § 1594(b) (conspiracy to commit a number of offenses involving human

trafficking, some of which are nonviolent); id. § 1594(c) (conspiracy to recruit persons for

human trafficking or to benefit financially from human trafficking); id. § 1956(h) (conspiracy

to launder money or to engage in monetary transactions in property derived from specified

unlawful activity); id. § 1958(a) (conspiracy to use interstate commerce facilities to further the

commission of a murder for hire); id. § 1962(d) (conspiracy to engage in prohibited

racketeering activities); id. § 1992(a)(5), (8)-(10) (conspiracy to commit certain nonviolent acts

against a railroad carrier or mass transportation system); id. § 2252(b) (conspiracy to conduct

certain activities related to child pornography); id. § 2252A(b) (conspiracy to conduct certain

activities relating to material containing child pornography); id. § 2260(b), (c)(2) (conspiracy

to commit certain acts relating to transportation of “any visual depiction of a minor engaging

in sexually explicit conduct” with intent that such a depiction will be imported into the United

States); id. § 2271 (conspiracy to destroy a vessel with intent to injure certain insurers or

13

 Case: 12-40264 Document: 00512593851 Page: 13 Date Filed: 04/11/2014
No. 12-40264

underwriters); id. § 2280(a)(1)(C)-(F), (H) (conspiracy to endanger a ship); id. § 2281(a)(1)(C)-

(D), (F) (conspiracy to endanger the safety of a maritime fixed platform); id. § 2285 (conspiracy

to operate a submersible vessel or semi-submersible vessel without nationality); id. § 2291 (1)-

(3), (5), (8)-(9) (conspiracy to destroy a vessel or maritime facility); id. § 2320(a) (conspiracy

to traffic in counterfeit goods or services); id. § 2332g(a), (c)(1) (conspiracy to “knowingly

produce, construct, otherwise acquire, transfer directly or indirectly, receive, possess, import,

[or] export” a missile system designed to destroy aircraft); id. § 2332h(a), (c)(1) (conspiracy to

“knowingly produce, construct, otherwise acquire, transfer directly or indirectly, receive,

possess, import, [or] export” a radiological dispersal device); id. § 2339B(a)(1) (conspiracy to

provide material support or resources to designated foreign terrorist organizations); id.

§ 2339C (conspiracy to finance terrorism); id. § 2385 (conspiracy to advocate the overthrow of

the United States government); id. § 2423(e) (conspiracy to commit certain offenses involving

traveling or transporting others for the purpose of engaging in illicit sexual conduct with a

minor); id. § 2442 (conspiracy to recruit or use child soldiers); 19 U.S.C. § 1590 (conspiracy to

commit aviation smuggling); 21 U.S.C. § 846 (conspiracy to commit a drug crime); id. § 960a

(conspiracy to violate certain drug-trafficking provisions with intent to provide aid to foreign

terrorist groups); id. § 963 (conspiracy to commit offenses related to the import or export of a

controlled substance); id. § 1904(c)(2) (conspiracy to violate provisions regarding transactions

related to international narcotics traffickers); 22 U.S.C. § 8512(c) (conspiracy to violate

provisions regarding economic sanctions against Iran); id. § 8513(c)(3), (d)(2) (conspiracy to

violate regulations regarding financial institutions that engage in certain transactions related

to Iran); id. § 8513a(g)(2) (conspiracy to violate provisions related to the imposition of

sanctions with respect to the financial sector of Iran); id. § 8781(b) (conspiracy to violate

certain provisions related to Iran and Syria); id. § 8809(b) (conspiracy to violate statutory

provisions or regulations related to Iran freedom and counterproliferation); 26 U.S.C. § 7214

(conspiracy by an officer or employee of the United States to defraud the United States); 31

U.S.C. § 3729(a)(1)(C) (conspiracy to make false claims for payment against the United States

government); id. § 5332 (conspiracy to smuggle currency into or out of the United States); 38

U.S.C. § 1987 (conspiracy to commit fraud related to veterans’ insurance benefits); 42 U.S.C.

§ 1973i(c) (conspiracy to encourage false registration to vote or illegal voting); id. § 1973j(c)

(conspiracy to interfere with voting rights); id. § 2272(a)-(b) (conspiracy to violate certain

provisions regarding the development and control of atomic energy); id. § 2273(a) (conspiracy

to violate provisions or regulations governing the development and control of atomic energy

for which no other criminal penalty is specified); id. § 2274 (conspiracy to communicate,

transmit, or disclose restricted data related to atomic energy); id. § 2275 (conspiracy to receive

restricted data related to atomic energy); id. § 2277 (conspiracy to communicate or receive

restricted data related to atomic energy without authorization); id. § 2284 (conspiracy to

sabotage nuclear facilities or fuel); id. § 15544(a) (conspiracy to deprive voters of a fair

election); 46 U.S.C. § 56102 (conspiracy to violate certain controls during war or national

emergency); id. § 70506 (conspiracy to manufacture, distribute, or posses a controlled

substance on a vessel); 49 U.S.C. § 32703(4) (conspiracy to commit certain acts relating to

odometers); id. § 60123(b) (conspiracy to damage or destroy a gas pipeline facility or a

hazardous liquid pipeline facility); 50 U.S.C. § 167k (conspiracy to violate provisions regulating

helium gas); id. § 1705 (conspiracy to violate any license, order, regulation, or prohibition

issued under the chapter governing international emergency economic powers); id. app. § 462

(conspiracy to interfere with the administration of the selective service); id. app. § 2410

14

 Case: 12-40264 Document: 00512593851 Page: 14 Date Filed: 04/11/2014
No. 12-40264

Among the federal statutes that deal with conspiracies to commit crimes that

arguably would be within the definition of a “crime of violence” in § 2L1.2,43eight 

require an overt act,44 while 43 do not.45

(conspiracy to violate export regulations).

43 See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii)

(2011).

44

18 U.S.C. § 351(d) (conspiracy to kill or kidnap certain congressional, cabinet, and

Supreme Court officials); id. § 831(a)(1), (3)-(6), (8) (conspiracy to use or threaten violence to

conduct a prohibited transaction involving nuclear materials); id. § 956 (conspiracy to kill,

kidnap, maim, or injure persons or damage property in a foreign country); id. § 1117

(conspiracy to commit murder); id. § 1201(c) (conspiracy to kidnap); id. § 1751(d) (conspiracy

to kidnap or kill the president or certain presidential staff); id. § 2118(d) (conspiracy to commit

robbery or burglary involving a controlled substance); id. § 2332(b) (conspiracy to kill a United

States national while the conspirator is outside of the United States).

45

18 U.S.C. § 32(a)(6), (8) (conspiracy to commit certain acts of violence likely to

endanger the safety of an aircraft); id. § 32(b)(1), (4) (conspiracy perform “an act of violence

against an individual on board any civil aircraft registered in a country other than the United

States, if such act is likely to endanger the safety of that aircraft”); id. § 33(a) (conspiracy to

disable or incapacitate any driver or person employed in connection with the operation or

maintenance of a motor vehicle); id. § 37(a)(1) (conspiracy to commit acts of violence at

international airports); id. § 43(a)(2)(B)-(C) (conspiracy to damage or interfere with the

operations of an animal enterprise through threats of bodily injury); id. § 81 (conspiracy to

commit arson within special maritime and territorial jurisdiction); id. § 115 (conspiracy to

influence, impede, or retaliate against a federal official by threatening, injuring, or killing a

family member); id. § 175c(a), (c)(2) (conspiracy to use or threaten to use variola virus); id.

§ 229(a) (conspiracy to use or threaten to use a chemical weapon); id. § 241 (conspiracy “to

injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth,

Possession, or District in the free exercise or enjoyment of any right or privilege secured to him

by the Constitution or laws of the United States, or because of his having so exercised the

same”); id. § 372 (conspiracy to impede or injure an officer of the United States); id. § 844(m)

(conspiracy to commit a felony using fire or any explosive); id. § 892(a) (conspiracy to make an

extortionate extension of credit); id. § 894(a) (conspiracy to collect extensions of credit by

extortionate means); id. § 924(o) (conspiracy to commit a crime of violence or a drug-trafficking

crime while carrying a firearm); id. § 1030(a)(7), (b) (conspiracy to commit extortion by

threatening to damage a computer, impair the confidentiality of information on a computer,

or access information on a protected computer); id. § 1091 (conspiracy to commit genocide);

id. § 1203(a) (conspiracy to take hostages); id. § 1389(a)(1), (3) (conspiracy to assault or batter

a United States serviceman or an immediate family member on account of the serviceman’s

status); id. § 1512(a), (k) (conspiracy to kill or use physical force or the threat of physical force

15

 Case: 12-40264 Document: 00512593851 Page: 15 Date Filed: 04/11/2014
No. 12-40264

A number of broadly applicable federal conspiracy provisions do not

require an overt act, including conspiracy to bring aliens to the United States or

to harbor them after entry;46

conspiracy to commit racketeering offenses under

the Racketeer Influenced and Corrupt Organizations Act (RICO);47conspiracy

to commit violent crimes in aid of racketeering activity under RICO;48conspiracy

to tamper with the judicial process); id. § 1513(a)-(b), (f) (conspiracy to kill, injure, or threaten

to injure, in retaliation for testimony or assistance to law enforcement); id. § 1594(b)

(conspiracy to commit a number of offenses involving human trafficking, many of which

include enumerated crimes of violence or involve the element of the “use, attempted use, or

threatened use of physical force against the person of another”); id. § 1752(a)(4) (conspiracy

to engage in any act of physical violence in a restricted government building or its grounds);

id. § 1792 (conspiracy to cause mutiny or riot at a federal prison); id. § 1951(a) (conspiracy to

interfere with commerce by threats or violence); id. § 1959 (conspiracy to commit violent

crimes in aid of racketeering activity); id. § 1992(a)(1)-(4), (6)-(7), (10) (conspiracy to commit

a terrorist attack or other violent act against a railroad carrier or mass transportation

system); id. § 2192 (conspiracy to incite seamen to revolt or mutiny); id. § 2251 (conspiracy to

commit various offenses relating to sexual exploitation of a child); id. § 2280(a)(1)(A)-(B), (G),

(H) (conspiracy to commit acts of violence likely to endanger safe maritime navigation); id.

§ 2281(a)(1)(A)-(B), (E)-(F) (conspiracy to commit violent acts that endanger the safety of a

maritime fixed platform); id. § 2291(4), (6)-(7), (9) (conspiracy to interfere with the operation

of a vessel or maritime facility using violence); id. § 2332a (conspiracy to use weapons of mass

destruction); id. § 2332b (conspiracy to commit acts of terrorism transcending national

boundaries); id. § 2332f(a)(1)(A) (conspiracy to deliver, place, discharge, or detonate an

explosive device in certain public places and government facilities with intent to cause death

or serious bodily injury); id. § 2332g(a), (c)(2) (conspiracy to use or to possess and threaten to

use a missile system designed to destroy aircraft); id. § 2332h(a), (c)(1)-(2) (conspiracy to use

or to possess and threaten to use a radiological dispersal device); id. § 2340A (conspiracy to

torture); id. § 2384 (conspiracy to “overthrow, put down, or . . . destroy by force the

Government of the United States”); id. § 2441 (conspiracy to commit war crimes); 42 U.S.C.

§ 2272(b) (conspiracy to use or to possess and threaten to use any atomic weapon); 49 U.S.C.

§ 46502 (conspiracy to commit aircraft piracy); 49 U.S.C. § 46504 (conspiracy to interfere with

flight crew members and attendants through assault or intimidation).

46 See 8 U.S.C. § 1324(a)(1)(A)(v)(I).

47

18 U.S.C. § 1962(d); see Salinas v. United States, 522 U.S. 52, 63-64 (1997) (holding

that because § 1962(d) does not contain an overt-act requirement in the statutory text, the

government is not required to prove that an overt act occurred).

48

18 U.S.C. § 1959.

16

 Case: 12-40264 Document: 00512593851 Page: 16 Date Filed: 04/11/2014
No. 12-40264

to commit fraud offenses, including wire and mail fraud;49

conspiracy to commit

drug-related offenses;50and conspiracy to fix prices in violation of § 1 of the

Sherman Act.51

We believe that our inquiry should be more narrow, however, and should

focus on the particular offense that is at issue in this appeal, which is conspiracy

to commit murder. Under federal statutes, approximately five provisions

involving conspiracy to commit murder require an overt act,52 while at least nine

do not.53

49

Id. § 1349; see United States v. Fishman, 645 F.3d 1175, 1186 (10th Cir. 2011) (“[A]

conspiracy to commit wire and/or mail fraud does not require proof of an overt act.”).

50

21 U.S.C. § 846; see United States v. Shabani, 513 U.S. 10, 13-15 (1994).

51

15 U.S.C. § 1; see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n.59

(1940) (“[I]t is . . . well settled that conspiracies under the Sherman Act are not dependent on

any overt act other than the act of conspiring.” (citing Nash v. United States, 229 U.S. 373, 378

(1913))).

52See 18 U.S.C. § 351(d) (conspiracy to kill or kidnap certain congressional, cabinet, and

Supreme Court officials); id. § 956 (conspiracy to kill, kidnap, maim, or injure persons in a

foreign country); id. § 1117 (conspiracy to commit murder); id. § 1751(d) (conspiracy to kidnap

or kill the President or certain presidential staff); id. § 2332(b) (conspiracy to kill a United

States national while the conspirator is outside of the United States).

53 See 18 U.S.C. § 115 (conspiracy to influence, impede, or retaliate against a federal

official by threatening, injuring, or killing a family member); id. § 1091(d) (conspiracy to kill

for purposes of genocide); id. § 1512(a)(1), (k) (conspiracy to kill to tamper with the judicial

process); id. § 1513(a), (f) (conspiracy to kill in retaliation for testimony or assistance to law

enforcement); id. § 1959 (conspiracy to commit violent crimes, including murder, in aid of

racketeering activity); id. § 1992(a)(7), (10) (conspiracy to “commit[] an act, including the use

of a dangerous weapon, with the intent to cause death or serious bodily injury” to a person on

certain mass-transit property); id. § 2280(a)(1)(G)-(H) (conspiracy to injure or kill a person in

connection with certain acts jeopardizing maritime navigation); id. § 2281(a)(1)(E)-(F)

(conspiracy to injure or kill a person in connection with certain acts jeopardizing a maritime

fixed platform); id. § 2332b(a)(1)(A), (c) (conspiracy to kill in connection with an act of

terrorism transcending national boundaries).

17

 Case: 12-40264 Document: 00512593851 Page: 17 Date Filed: 04/11/2014
No. 12-40264

The Model Penal Code’s general conspiracy provision does not require an

overt act for first- or second-degree felonies.54 The Model Penal Code provides

that murder is a first-degree felony;55

therefore, an overt act is not required for

conspiracy to commit murder under the Model Penal Code. 

An oft-cited treatise notes that, although “[a]t common law a conspiracy

was punishable even though no act was done beyond the mere making of the

agreement . . . , most of the states now require that an overt act in furtherance

of the plan be proven for all or specified conspiratorial objectives.”56 Similarly,

Black’s Law Dictionary defines conspiracy as “[a]n agreement by two or more

persons to commit an unlawful act, coupled with an intent to achieve the

agreement’s objective, and (in most states) action or conduct that furthers the

agreement; a combination for an unlawful purpose.”57It appears that 34 states

require an overt act as an element of all criminal conspiracies,58 while 13 states

54 MODEL PENAL CODE § 5.03(5) (1962) (“Overt Act. No person may be convicted of

conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt

act in pursuance of such conspiracy is alleged and proved to have been done by him or by a

person with whom he conspired.”).

55

Id. § 210.2(2).

56 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 12.2(b) (2d ed. 2003) (citations

omitted).

57 BLACK’S LAW DICTIONARY 351 (9th ed. 2009).

58 ALA. CODE § 13A-4-3(a) (2013); ALASKA STAT. ANN. § 11.31.120(a) (West 2013); ARK.

CODE ANN. § 5-3-401(2) (West 2013); CAL. PENAL CODE § 184 (West 2013); COLO. REV. STAT.

§ 18-2-201(2) (West 2013); CONN. GEN. STAT. ANN. § 53a-48(a) (West 2013); GA. CODE ANN.

§ 16-4-8 (West 2013); HAW. REV. STAT. § 705-520(2) (West 2013); IDAHO CODE ANN. § 18-1701

(West 2013); 720 ILL. COMP. STAT. ANN. 5/8-2(a) (West 2013); IND. CODE ANN. § 35-41-5-2(b)

(West 2013); IOWA CODE ANN. § 706.1(3) (West 2013); KAN. STAT. ANN. § 21-5302(a) (West

2013); KY. REV. STAT. ANN. § 506.050(1) (West 2013); LA. REV. STAT. ANN. § 14:26(A) (2013);

ME. REV.STAT. ANN.tit. 17-A, § 151(4) (2013); MINN. STAT. ANN. § 609.175(2) (West 2013); MO.

ANN. STAT. § 564.016(4) (West 2013); MONT. CODE ANN. § 45-4-102(1) (2013); NEB. REV. STAT.

§ 28-202(1)(b) (2013); N.H. REV. STAT. ANN. § 629:3(I) (2013); N.Y. PENAL LAW § 105.20

(McKinney 2013); N.D. CENT. CODE ANN. § 12.1-06-04(1) (West 2013); OHIO REV. CODE ANN.

§ 2923.01(B) (West 2013); OKLA.STAT. ANN.tit. 21, § 423 (West 2013); 18 PA. CONS.STAT. ANN.

§ 903(e) (West 2013); S.D. CODIFIED LAWS § 22-3-8 (2013); TENN. CODE ANN. § 39-12-103(d)

18

 Case: 12-40264 Document: 00512593851 Page: 18 Date Filed: 04/11/2014
No. 12-40264

do not require an overt act for any conspiracy offense.

59 The three remaining

states—Arizona, New Jersey, and Utah—do not require an overt act for certain

serious crimes.

60 In Arizona, no overt act is required “if the object of the

conspiracy was to commit any felony upon the person of another,”61and both

first- and second-degree murder are felonies in Arizona.

62

In New Jersey, no

overt act is required for “conspiracy to commit . . . a crime of the first or second

degree,”63and “[m]urder is a crime of the first degree.”64In Utah, no overt act

is required when “the offense is a capital felony, a felony against the person,

arson, burglary, or robbery.”

65

 Murder is a first-degree felony in Utah.

66

Were we to focus solely on the requirements of a majority of the states’

laws regarding the necessity of alleging and proving an overt act in furtherance

of a conspiracy to commit murder, we would be compelled to conclude that the

(West 2013); TEX.PENALCODE ANN. § 15.02(a)(2) (West 2013); VT.STAT. ANN.tit. 13, § 1404(b)

(West 2013); WASH. REV. CODE ANN. § 9A.28.040(1) (West 2013); W. VA. CODE ANN. § 61-10-31

(West 2013); WIS. STAT. ANN. § 939.31 (West 2013); WYO.STAT. ANN. § 6-1-303(a) (West 2013).

59 DEL. CODE ANN. tit. 11, §§ 511(1), 512(1), 513(1) (West 2013); FLA. STAT. ANN.

§ 777.04(3) (West 2013); MD. CODE ANN., CRIM. LAW § 1-203 (West 2013); MICH. COMP. LAWS

ANN. § 750.157a (West 2013); MISS.CODEANN. § 97-1-1(1)(a), (h) (West 2013); NEV. REV.STAT.

ANN. §§ 199.480, 199.490 (West 2013); N.M. STAT. ANN. § 30-28-2(A) (West 2013); OR. REV.

STAT. ANN. § 161.450(1) (West 2013); S.C. CODE ANN. § 16-17-410 (2013); VA. CODE ANN. §

18.2-22(a) (West 2013); Commonwealth v. Cerveny, 439 N.E.2d 754, 759 (Mass. 1982) (stating

that no overt act is necessary for a conspiracy conviction); State v. Bindyke, 220 S.E.2d 521,

526 (N.C. 1975) (same); State v. Brown, 486 A.2d 595, 601 (R.I. 1985) (same).

60 ARIZ. REV. STAT. ANN. § 13-1003(A) (2013); N.J. STAT. ANN. § 2C:5-2(d) (West 2013);

UTAH CODE ANN. § 76-4-201 (West 2013).

61 ARIZ. REV. STAT. ANN. § 13-1003(A).

62

Id. §§ 13-1104 to -1105.

63 N.J. STAT. ANN. § 2C:5-2(d).

64

Id. § 2C:11-3(b)(1). 

65 UTAH CODE ANN. § 76-4-201.

66

Id. § 76-5-203(3)(a).

19

 Case: 12-40264 Document: 00512593851 Page: 19 Date Filed: 04/11/2014
No. 12-40264

generic, contemporary definition of conspiracy to commit murder includes the

requirement of an overt act. However, to do so would ignore the laws of 16

states, a number of federal laws, and the Model Penal Code, none of which

contains an overt-act requirement for conspiracy to commit murder. After

surveying the various sources typically consulted in applying the categorical

approach, it appears to us that, albeit slight, the weight of authority indicates

that conspiracy to commit murder does not require an overt act as an element. 

B

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). In United States v. RodriguezEscareno,

67 we held that, in interpreting § 2L1.2(b)(1)(A)(i), at least with respect

to a conspiracy to commit a federal drug trafficking offense, we do not follow the

“analytical route” of seeking a crime’s “‘generic, contemporary meaning[,]’”

which would include “examin[ing] ‘the Model Penal Code, treatises, federal and

state law, dictionaries, and the Uniform Code of Military Justice’ for a

definition.”68In Rodriguez-Escareno, the defendant had a prior conviction

under 21 U.S.C. § 846 for conspiracy to commit a drug trafficking offense.

69 We

noted that, although “‘most jurisdictions’ require proof of an overt act to

establish a conspiracy,”70 no overt act is required for conviction of a conspiracy

under § 846.

71 The defendant argued that, because there was no overt-act

67

700 F.3d 751 (5th Cir. 2012).

68 Rodriguez-Escareno, 700 F.3d at 753 (quoting United States v. SantiestebanHernandez, 469 F.3d 376, 379 (5th Cir. 2006)).

69

Id.

70

Id. (quoting United States v. Mendez-Casarez, 624 F.3d 233, 240 (5th Cir. 2010)).

71

Id. (citing United States v. Shabani, 513 U.S. 10, 13-14 (1994)).

20

 Case: 12-40264 Document: 00512593851 Page: 20 Date Filed: 04/11/2014
No. 12-40264

requirement, a conspiracy under § 846 was not within the generic,

contemporary meaning of “conspiracy.” We rejected that argument, holding

that there is no need to “find meaning for the offense [of conspiracy to commit

a drug trafficking offense] outside of the Guidelines.”72 We reasoned that “[t]he

Guidelines themselves tell us that a conviction for a conspiracy to commit a

federal drug trafficking offense will justify application ofthe enhancement” and

that “Application Note 5 is a clear statement by the Sentencing Commission

thatthe enhancement applies to conspiracies to commit federal drug trafficking

offenses.”73 We further explained that “[f]or us, nonetheless, to search for a

generic meaning of ‘conspiracy’ by employing a doctrine generally used to

determine whether a state conviction is of an enumerated crime, would only

becloud what is clear from the Guideline itself.”74

Although our decision in Rodriguez-Escareno stated in a footnote that

“[w]e imply no position on the relevance of this reasoning to applying the

enhancement to convictions for conspiracies to commit state-law offenses,”75

there 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. The text of Application Note 5,

which states that “[p]rior convictions of offenses counted under subsection (b)(1)

include the offenses of . . . conspiring . . . to commit such offenses,”76does not

draw a distinction between federal and state crimes and does not reasonably

permit courts to draw such a distinction.

72

Id.

73

Id. at 753-54.

74

Id. at 754.

75

Id. at 754 n.2.

76 U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.5 (2011). 

21

 Case: 12-40264 Document: 00512593851 Page: 21 Date Filed: 04/11/2014
No. 12-40264

We do not quarrel with the ultimate holding in Rodriguez-Escareno. 

Rather, it highlights the fact that considerable weight must be given to the

number of serious federal conspiracy offenses that do not require an overt act.

Our decision in Rodriguez-Escareno counsels against simply tallying the

number of state laws that require an overt act and those that do not.

We are also persuaded that serious federal conspiracy crimes, such as a

conspiracy to murder a family member of a federal official;77

 conspiracy to kill

a witness, victim, or informant to prevent testimony or in retaliation for

testimony;

78

and other conspiracies aimed at causing death or serious bodily

injury79 were undoubtedly intended by the Sentencing Commission to result in

a 16-level enhancement under § 2L1.2, regardless of whether the statute of

conviction has an overt act as an element of the offense. We see no basis for

concluding that the Commission intended offenses under state law to be treated

differently from similar or identical offenses under federal law. The Guidelines

regarding a conspiracy to commit a “crime of violence” do not expressly

differentiate based on whether an overt act was required by the statute of

conviction. This is true regardless of whether the statute of conviction was a

federal or a state law. We do not see a reasoned basis for construing the

Guidelines to mean that the advisory range of punishment differs depending

upon whether a conspirator to murder a family member of a federal official was

prosecuted under state or federal law, even if the state and federal laws had the

same essential elements. There is no indication that the Sentencing

Commission intended the definition of“conspiracy” as used in Application Note

77

18 U.S.C. § 115.

78

Id. §§ 1512(a), (k), 1513(a), (f).

79 See supra notes 44-45 and accompanying text.

22

 Case: 12-40264 Document: 00512593851 Page: 22 Date Filed: 04/11/2014
No. 12-40264

5 to vary, depending upon whether the conviction was obtained under federal

or state law.

C

We cannot reasonably conclude thatthe Sentencing Commission intended

“conspiracy” within the meaning of Application Note 5 to require an overt act

as an element of each and every conspiracy offense.

80 The language and context

of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit

murder. Alternatively, we conclude that the generic, contemporary meaning of

“conspiracy to commit murder” does not require an overt act. We note the

possibility that there is no “generic, contemporary” meaning of “conspiracy to

commit murder” in light of the marked differences between the 34 state laws of

conspiracy that require an overt act for every offense, on one hand, and the 16

state laws and the numerous federal laws that do not have such a requirement.

We conclude that conspiracy to commit murder, within the meaning of

Application Note 5 of § 2L1.2, does not require an overt act as an element of the

offense.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

80 But see United States v. Gore, 636 F.3d 728, 745 (5th Cir. 2011) (Higginbotham, J.,

concurring) (observing in a case construing the residual clause of the ACCA regarding a Texas

conviction for aggravated robbery, and not construing the Guidelines, that “[i]n my view, the

generic, contemporary definition of a criminal conspiracy includes a requirement that at least

one of the conspirators take an overt act in furtherance of the agreement”).

23

 Case: 12-40264 Document: 00512593851 Page: 23 Date Filed: 04/11/2014