PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

LUIS CARLOS CASTRO-GOMEZ, 

 Defendant - Appellant. 

No. 14-2052 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 2:13-CR-03282-PMD-1)

_________________________________ 

Leon Schydlower, El Paso, Texas, for Defendant-Appellant. 

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United States 

Attorney, with him on the brief), for Plaintiff-Appellee. 

_________________________________ 

Before MATHESON, McKAY, and MORITZ, Circuit Judges. 

_________________________________ 

MORITZ, Circuit Judge. 

_________________________________ 

 Luis Carlos Castro-Gomez appeals the district court’s finding that his prior Illinois 

conviction for attempted murder is a crime of violence triggering a 16-level enhancement 

under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines (“U.S.S.G.”). 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 6, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 After Castro-Gomez pled guilty to one count of illegal entry by a removed alien in 

violation of 8 U.S.C. §§ 1326(a) and (b), he objected to the Presentence Report’s 

classification of his prior Illinois conviction for attempted murder as a crime of violence 

under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Castro-Gomez contended Illinois’ statutory 

definition of murder—which encompasses killing an individual with merely the intent to 

do great bodily harm—is broader than its generic counterpart. The generic definition of 

murder requires a killer’s conduct to at least evince a “reckless and depraved indifference 

to serious dangers posed to human life.” United States v. Marrero, 743 F.3d 389, 401 (3d 

Cir. 2014), cert. denied, 135 S. Ct. 950 (2015).

 The district court overruled Castro-Gomez’s objection. It found Illinois’ definition 

of murder corresponds with the uniform generic definition of the offense, triggering a 16-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court sentenced 

Castro-Gomez to 35 months in prison, and Castro-Gomez appealed. 

 In their opening briefs, the parties focused on Castro-Gomez’s argument that 

Illinois’ definition of murder is broader than the uniform generic definition of the offense. 

But neither party addressed the more germane question of whether Illinois’ definition of 

attempted murder—Castro-Gomez’s actual prior crime—is broader than its generic 

counterpart. Thus, we ordered supplemental briefing on that issue. The parties complied, 

and we address their arguments below. 

 In determining whether Castro-Gomez’s prior conviction for attempted murder 

under 720 Ill. Comp. Stat. Ann. § 5/8-4(a) (West 2015) and 720 Ill. Comp. Stat. Ann. § 

5/9-1(a)(1) (West 2015) constitutes a crime of violence for purposes of U.S.S.G. 

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§ 2L1.2(b)(1)(A)(ii), we exercise unlimited review.1 See United States v. Reyes-Alfonso, 

653 F.3d 1137, 1141 (10th Cir. 2011). 

 A prior conviction for a crime of violence triggers a 16-level increase under 

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Additionally, “[p]rior convictions of offenses counted 

under subsection (b)(1),” e.g., prior convictions for crimes of violence, “include the 

offenses of . . . attempting . . . to commit such offenses.” U.S.S.G. § 2L1.2, cmt. 5. 

 Murder is an enumerated crime of violence under the commentary to U.S.S.G. 

§ 2L1.2. See U.S.S.G. § 2L1.2, cmt. 1(B)(iii). But its status as an enumerated crime of 

violence does not necessarily mean a state conviction for murder warrants the 16-level 

enhancement. Instead, a state murder conviction categorically qualifies as a crime of 

violence only if the state’s definition of murder corresponds with the uniform generic 

definition of the crime. See United States v. Garcia-Caraveo, 586 F.3d 1230, 1233 (10th 

Cir. 2009). 

 Relying on this general test for determining whether a particular crime constitutes 

a crime of violence, Castro-Gomez presents a two-pronged argument. First, he contends 

murder is not a crime of violence under Illinois law because 720 Ill. Comp. Stat. Ann. 

§ 5/9-1(a)(1) (West 2015) requires only the intent to do great bodily harm, while the 

generic definition of murder more specifically requires at least reckless and depraved 

indifference to serious dangers posed to human life. See Marrero, 743 F.3d at 401 

 1

 According to the Presentence Report, Castro-Gomez committed the crime of 

attempted murder on or about August 28, 1999. The current versions of 720 Ill. Comp. 

Stat. § 5/8-4(a) and 720 Ill. Comp. Stat. § 5/9-1(a)(1) are substantively identical to the 

versions in effect at the time of the offense. 

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(providing generic definition of murder). And if murder is not a crime of violence under 

Illinois law, Castro-Gomez reasons, then his Illinois conviction for attempted murder also 

cannot constitute a crime of violence. As he puts it, “[F]or purposes of the Sentencing 

Guidelines, if the substantive offense is not a crime of violence, neither is an attempt to 

commit the substantive offense.” Aplt. Supp. Br. at 2. 

 The government disagrees. It maintains that Illinois’ statutory definition of murder 

corresponds with the generic definition of the offense. But in its supplemental brief, the 

government advances an alternative route to affirming the district court’s classification of 

Castro-Gomez’s crime. Even if Illinois’ statutory definition of murder is broader than the 

generic definition of the offense, the government argues, Illinois’ statutory definition of 

attempted murder—Castro-Gomez’s actual crime of conviction—corresponds with its 

uniform generic counterpart. Thus, the government asserts, we may affirm CastroGomez’s sentence even if the district court erred in finding Illinois’ definition of murder 

substantially corresponds with the uniform generic definition of murder. See United 

States v. Pursley, 577 F.3d 1204, 1224 (10th Cir. 2009) (explaining we may affirm on 

grounds other than those relied upon by district court, especially when parties had 

opportunity to address those grounds on appeal). 

 The government’s alternative argument presents us with a question of first 

impression in this circuit: assuming a state’s statutory definition of an enumerated crime 

of violence is broader than its uniform generic counterpart, may a state conviction for an 

attempt to commit that crime nevertheless constitute a crime of violence for purposes of 

U.S.S.G. § 2L1.2(b)(1)(A)(ii)? 

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 The Ninth Circuit considered this very question under nearly identical 

circumstances in United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. 2012). At 

issue there was the defendant’s Arizona conviction for attempted aggravated assault. 

While Arizona’s definition of aggravated assault includes acts done with ordinary 

recklessness, its generic counterpart requires at least recklessness demonstrating extreme 

indifference to the value of human life. Seizing on the state’s broader intent requirement, 

as Castro-Gomez does here, the defendant in Gomez-Hernandez argued his Arizona 

conviction for attempted aggravated assault could not trigger an enhancement under 

U.S.S.G. § 2L1.2(b)(1)(A)(ii) because an Arizona conviction for the completed offense of 

aggravated assault does not constitute a crime of violence. Id. at 1172. 

 The Ninth Circuit disagreed, refusing to myopically focus on the elements of the 

underlying substantive offense. Instead, the court viewed Arizona’s definition of 

attempt—which requires an offender to act intentionally—in tandem with the state’s 

definition of aggravated assault. This holistic approach produced a definition of 

attempted aggravated assault that applies only to intentional conduct, dispelling any 

possibility the defendant’s Arizona conviction might have been premised on ordinary 

recklessness. Id. at 1175-77. 

 We find the Ninth Circuit’s reasoning both persuasive and directly applicable here. 

Illinois’ definition of attempt, like Arizona’s, requires the specific intent to commit a 

substantive offense. See 720 Ill. Comp. Stat. Ann. § 5/8-4(a) (West 2015) (explaining “[a] 

person commits the offense of attempt when, with intent to commit a specific offense, he 

or she does any act that constitutes a substantial step toward the commission of that 

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offense”). Read in tandem with 720 Ill. Comp. Stat. Ann. § 5/9-1(a)(1) (West 2015), 

which defines murder as killing an individual with the intent to kill or do great bodily 

harm or with the knowledge one’s actions will cause death, the resulting statutory 

definition of attempted murder requires the intent to kill.2

 

 Rather than confronting the Ninth Circuit’s approach in Gomez-Hernandez, 

Castro-Gomez directs us to a passage from the Ninth Circuit’s earlier opinion in United 

States v. Wenner, 351 F.3d 969 (9th Cir. 2003): 

Under the Guidelines, an attempt to commit a crime of violence is itself a 

crime of violence. U.S.S.G. § 4B1.2, cmt. 1. Because, as we have 

concluded above, Washington residential burglary is not a crime of 

violence, [the defendant’s] state conviction for attempted residential 

burglary also is not a crime of violence under the Guidelines. 

Id. at 976. Castro-Gomez suggests this language establishes a bright-line rule for 

determining whether an attempt to commit a state offense constitutes a crime of violence. 

He’s mistaken. 

 In Wenner, the Ninth Circuit reasoned Washington’s definition of residential 

burglary applies to certain places and areas, such as fenced enclosures and cargo 

containers, to which the court said the generic definition of burglary of a dwelling does 

not apply. In light of this perceived overbreadth, the court determined the defendant’s 

 2

 Indeed, Castro-Gomez concedes intent to kill is an element of attempted murder 

under Illinois case law. Aplt. Supp. Br. at 1. But he argues this intent element is not 

apparent from the language of Illinois’ statutes. And he maintains we may not look to 

Illinois case law to discern it. Because we conclude specific intent to kill is an element of 

attempted murder under the statutory language of 720 Ill. Comp. Stat. Ann. § 5/8-4(a) 

(West 2015) and 720 Ill. Comp. Stat. Ann. § 5/9-1(a)(1) (West 2015), we find it 

unnecessary to consider either Illinois case law or Castro-Gomez’s claim that such case 

law is beyond our purview. 

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Washington conviction for residential burglary did not constitute a crime of violence 

under U.S.S.G. § 4B1.1 and U.S.S.G. § 4B1.2(a)(2). Id. at 972-73. And because the 

defendant’s Washington conviction for residential burglary was not a crime of violence, 

the court deduced, neither was his Washington conviction for attempted residential 

burglary. Id. at 976. 

 But Wenner doesn’t address—let alone answer—the question we are faced with 

here: whether a state’s statutory definition of attempt can cure a substantive offense’s 

overbroad intent requirement for purposes of determining whether an attempt to commit 

that offense constitutes a crime of violence. 

Wenner didn’t address this question because it didn’t have to. The result in 

Wenner turned on what the court identified as an overbroad conduct requirement, not an 

overbroad intent requirement. See Gomez-Hernandez, 680 F.3d at 1177 n.6 

(distinguishing between overbroad conduct requirements, which can’t be cured by 

looking to state’s definition of attempt, and overbroad intent requirements, which can). In 

other words, even if Washington’s definition of attempt requires the specific intent to 

commit an offense, a specific intent requirement would not restrict the places and areas to 

which Washington’s definition of attempted residential burglary applies. Thus, it would 

not cure the overbreadth the Ninth Circuit found fatal in Wenner. 

 The same cannot be said if applying the language of a state’s attempt statute cures 

the overbroad intent requirement of which a defendant complains, as it did in GomezHernandez and as it does here. Even if we assume Illinois’ statutory definition of murder 

is broader than the generic definition of murder, any dissonance between the two 

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definitions arises from their intent requirements, not from the conduct they cover. And 

that dissonance disappears in light of Illinois’ statutory definition of attempt. 

 The Ninth Circuit’s decision in Wenner does not conflict with that court’s decision 

in Gomez-Hernandez. Nor does it undermine Gomez-Hernandez’s rationale, which we 

find persuasive. We therefore reject Castro-Gomez’s assertion that an attempt to commit 

a state crime is only a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) if the state’s 

definition of the completed offense substantially corresponds with the uniform generic 

definition of that crime. Instead, we conclude the appropriate inquiry requires a court to 

ask whether the elements of a defendant’s actual crime of conviction—here, attempted 

murder—correspond with the elements of its generic counterpart. 

 Under that test, Castro-Gomez has shown no error in the district court’s 

application of § 2L1.2(b)(1)(A)(ii). Castro-Gomez’s sole complaint rests on his allegation 

that Illinois’ definition of murder requires only the intent to do great bodily harm, while 

the generic definition of murder requires more. But read together, 720 Ill. Comp. Stat. 

Ann. § 5/8-4(a) (West 2015) and 720 Ill. Comp. Stat. Ann. § 5/9-1(a)(1) (West 2015) 

make intent to kill—which is a more culpable state of mind than intent to do great bodily 

harm or even reckless and depraved indifference—an element of Illinois’ definition of 

attempted murder. Because reading the statutes in tandem to determine the elements of 

Castro-Gomez’s actual crime of conviction cures the only overbreadth of which CastroGomez complains, we reject his challenge and affirm his sentence. 

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