Case: 09-40825 Document: 00511265143 Page: 1 Date Filed: 10/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2010
No. 09-40825 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE MIGUEL MENDEZ-CASAREZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
DENNIS, Circuit Judge:
Defendant Jose Miguel Mendez-Casarez pleaded guilty to one count of
illegal reentry in violation of 8 U.S.C. § 1326(a). The district court sentenced
him to 41 months of imprisonment and two years of supervised release.
Mendez-Casarez appeals his sentence, contending that the district court erred
in determining that a prior conviction for solicitation to commit assault was a
crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) and
accordingly imposing a sixteen-level sentence enhancement. We disagree,
and affirm the district court’s judgment.
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No. 09-40825
I. BACKGROUND
Mendez-Casarez was convicted in 2000 of solicitation to commit assault
with a deadly weapon inflicting serious injury under North Carolina law. He
was deported in 2006. On November 14, 2008, Mendez-Casarez pleaded
guilty to one count of being unlawfully present in the United States after
deportation in violation of 8 U.S.C. § 1326(a) and (b). The presentence report
(PSR) calculated a base offense level of eight, to which it applied a sixteen-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on Mendez-
Casarez’s 2000 North Carolina conviction for solicitation to commit assault
with a deadly weapon inflicting serious injury. The PSR applied a two-level
adjustment for acceptance of responsibility, producing a total offense level of
twenty-two. His total offense level, in combination with a Criminal History
Category of III, yielded a Guidelines range of 51-63 months.
Mendez-Casarez submitted objections to the PSR, including an
objection to the sixteen-level enhancement. The district court overruled the
objection and imposed the enhancement. The district court granted Mendez-
Casarez an additional one-level reduction for acceptance of responsibility, on
the Government’s motion, and found that his offense level was twenty-one,
yielding a Guidelines range of 46-57 months. The district court also found
that Category III over-represented Mendez-Casarez’s criminal history and
departed downward to the range corresponding to an offense level of twenty-
one and a Criminal History Category of II. The district court sentenced
Mendez-Casarez to a within-Guidelines sentence, using the new range, of 41
months. Mendez-Casarez timely appealed.
II. STANDARD OF REVIEW
“We review the district court’s interpretation and application of the
Sentencing Guidelines de novo, and its factual determinations for clear error.”
United States v. Jimenez, 509 F.3d 682, 693 (5th Cir. 2007). When sentencing
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a defendant, the district court “must first calculate the Guidelines range and
consider the appropriateness of a sentence within that sentencing range to
fulfill its duty to consider the Sentencing Guidelines as advisory and as a
frame of reference.” United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir.
2006). The question of whether a state conviction qualifies as a crime of
violence for the purposes of the sixteen-level enhancement is a legal question
to be reviewed de novo. United States v. Calderon-Pena, 383 F.3d 254, 256
(5th Cir. 2004) (en banc).
III. DISCUSSION
Section 2L1.2 of the Sentencing Guidelines calls for a sixteen-level
enhancement to a defendant’s offense level if the defendant was previously
deported or unlawfully remained in the United States after a conviction for a
felony that is a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
Guidelines commentary defines “crime of violence” for the purpose of this
enhancement as any of a list of offenses, which include murder, kidnapping,
robbery, and aggravated assault. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The
Guidelines commentary also explains that prior convictions for this purpose
“include the offenses of aiding and abetting, conspiring, and attempting, to
commit such [violent] offenses.” U.S.S.G. § 2L1.2 cmt. n.5. The parties do not
dispute whether the underlying substantive offense of assault with a deadly
weapon inflicting serious injury constitutes a crime of violence. Rather, the
question in this case is whether solicitation to commit assault with a deadly
weapon inflicting serious injury constitutes a crime of violence similar to the
way that conspiring, attempting, or aiding and abetting in the commission of
assault with a deadly weapon inflicting serious injury does.1 We previously
1
Our inquiry here is distinct from that undertaken to determine whether a prior
conviction constitutes a crime of violence under U.S.S.G. § 4B1.1(a). See generally Begay v.
United States, 553 U.S. 137 (2008).
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noted but did not reach this question in United States v. Sandoval-Ruiz, 543
F.3d 733, 738 (5th Cir. 2008).
Three courts of appeals have differed in their treatment of solicitation
convictions as predicate offenses for sentence enhancements. The Tenth
Circuit held that an Arizona conviction for solicitation to commit burglary of a
dwelling constituted a crime of violence for the purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th
Cir. 2006). Similarly, the Ninth Circuit held that an Oregon conviction for
solicitation of delivery of cocaine constituted a controlled substance offense for
the purposes of U.S.S.G. § 4B1.1(a), which includes “aiding and abetting,
conspiring, and attempting” to commit such an offense, U.S.S.G. § 4B1.2 cmt.
n.1. United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir. 2003). In
contrast, the Sixth Circuit held that a Florida conviction for solicitation to
traffic in cocaine did not constitute a controlled substance offense for the
purposes of U.S.S.G. § 4B1.1(a). United States v. Dolt, 27 F.3d 235, 240 (6th
Cir. 1994).
Relatedly, the Second Circuit held that a New York conviction for
criminal facilitation of the sale of cocaine did not constitute a controlled
substance offense for the purposes of U.S.S.G. § 4B1.1(a). United States v.
Liranzo, 944 F.2d 73, 79 (2d Cir. 1991). The result reached by the Second
Circuit is not directly relevant for our purposes, because criminal facilitation
is a different crime from solicitation. Nonetheless, we refer to Liranzo because
the principles that the Second Circuit applied in determining whether
U.S.S.G. § 4B1.1(a) encompassed criminal facilitation are consistent with
those applied by the courts in Cornelio-Pena, Shumate, and Dolt, and which
we apply here.
Our consideration of whether solicitation to commit assault under North
Carolina law qualifies as a crime of violence proceeds in two parts. First,
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because solicitation is not explicitly listed in U.S.S.G. § 2L1.2 cmt. n.5 as a
crime of violence, we must determine whether that list is exhaustive. Second,
if the list in U.S.S.G. § 2L1.2 cmt. n.5 is not exhaustive, the next question is
whether it covers the crime of solicitation of assault with a deadly weapon
inflicting serious injury. We conclude that the list in U.S.S.G. § 2L1.2 cmt. n.5
is not exhaustive, and can include offenses other than those enumerated. We
also conclude that the list in U.S.S.G. § 2L1.2 cmt. n.5 covers solicitation of
assault with a deadly weapon inflicting serious injury because solicitation is
sufficiently similar to conspiracy, which is one of the enumerated offenses in
the list.
A.
First, we conclude that the phrase in U.S.S.G. § 2L1.2 cmt. n.5
explaining that “[p]rior convictions of [violent] offenses . . . include the offenses
of aiding and abetting, conspiring, and attempting, to commit such [violent]
offenses” is not an exhaustive list. The commentary to the Guidelines’
“General Application Principles” states that “the term ‘includes’ is not
exhaustive.” U.S.S.G. § 1B1.1 cmt. n.2. Given the Sentencing Commission’s
explicit statement, because the list in U.S.S.G. § 2L1.2 cmt. n.5 begins with
the word “include,” the offenses listed — aiding and abetting, conspiring, and
attempting — must be interpreted as examples, rather than an exclusive list.
Cornelio-Pena, 435 F.3d at 1284 (reasoning that the list in U.S.S.G. § 2L1.2
cmt. n.5 was not exhaustive because of the Guidelines commentary on the
word “include”); Shumate, 329 F.3d at 1028 (holding that the word “include,”
which was explained by the Guidelines commentary to be non-exhaustive,
rendered the omission of solicitation in U.S.S.G. § 4B1.2 cmt. n.1 legally
insignificant). Even the courts of appeal that have not explicitly addressed the
word “include” have nevertheless also concluded that the phrase “include the
offenses of aiding and abetting, conspiring, and attempting” is not exhaustive.
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Dolt, 27 F.3d at 239; Liranzo, 944 F.2d at 79. Thus, the fact that solicitation is
not included in the list of offenses in U.S.S.G. § 2L1.2 cmt. n.5 is not
dispositive as to whether Mendez-Casarez’s conviction of solicitation to commit
assault with a deadly weapon constitutes a crime of violence.
B.
We next conclude that the list in U.S.S.G. § 2L1.2 cmt. n.5 encompasses
Mendez-Casarez’s prior conviction of solicitation to commit assault with a
deadly weapon. The courts of appeal that have addressed the question of
whether to include a prior offense in a list where it is not enumerated agree
that the relevant inquiry involves comparing the offense in the statute of prior
conviction to the offenses enumerated in the list. See Cornelio-Pena, 435 F.3d
at 1286 (holding that solicitation is “sufficiently similar” to the listed offenses
in U.S.S.G. § 2L1.2 cmt. n.5 to warrant inclusion); Dolt, 27 F.3d at 240
(holding that solicitation “is not sufficiently similar” to the listed offenses in
U.S.S.G. § 4B1.2 cmt. n.1. to warrant inclusion ); Liranzo, 944 F.2d at 79
(holding that criminal facilitation is “unlike” the listed offenses in U.S.S.G.
§ 4B1.2 cmt. n.1. and thus should not be included).2 In particular, the
analysis involves comparing the mens rea (mental state) and actus reus (action
or conduct) of the prior offense to those of conspiracy, aiding and abetting, and
attempt. Cornelio-Pena, 435 F.3d at 1286-87; Dolt, 27 F.3d at 238-40; Liranzo,
944 F.2d at 79.
The purpose of comparing offenses is to avoid categorizing a prior
offense as a predicate offense that qualifies a defendant for sentence
2
The only case in which a court of appeal did not compare the offenses is Shumate,
because the Ninth Circuit relied on a previous decision in order to hold that the word “include”
was dispositive in determining whether the list in U.S.S.G. § 4B1.2 cmt. n.1 encompassed
solicitation. Shumate, 329 F.3d at 1030-31 (citing United States v. Cox, 74 F.3d 189, 190 (9th
Cir. 1996)). Nonetheless, the Ninth Circuit’s reasoning is not inconsistent with our
comparison analysis.
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enhancement when the prior offense is clearly less serious than the offenses
enumerated as constituting the substantive offense. See Cornelio-Pena, 435
F.3d at 1286 (explaining that “[b]ecause conspiracy and solicitation have
similar mens rea and actus reus requirements and are of similar severity, they
are sufficiently similar to be included together in [U.S.S.G. § 2L1.2 cmt. n.5]”);
Dolt, 27 F.3d at 238 (determining that “aiding and abetting is clearly a more
serious crime” than solicitation and thus that the two could not be considered
sufficiently similar for the purpose of determining whether the list in U.S.S.G.
§ 4B1.2 cmt. n.1. encompassed solicitation); Liranzo, 944 F.2d at 79 (holding
that criminal facilitation is different from conspiracy, aiding and abetting, and
attempt, because the latter three offenses all require intent to commit the
underlying offense, whereas criminal facilitation requires a less serious mens
rea). Thus, if the mens rea and actus reus of Mendez-Casarez’s prior
conviction are clearly less serious than those of conspiracy, aiding and
abetting, and attempt, as defined by their generic contemporary meanings,
then we would conclude that his prior conviction does not constitute a crime of
violence. Conversely, if the mens rea and actus reus of Mendez-Casarez’s prior
conviction are not clearly less serious than those of one or more of the three
other offenses, then we would conclude that his prior conviction does
constitute a crime of violence for the purpose of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Mendez-Casarez was convicted of the North Carolina crime of
solicitation to commit assault with a deadly weapon inflicting serious injury.
Although the penalty for committing solicitation is outlined in state statutes,
see N.C. Gen. Stat. § 14-2.6(a), the crime itself is defined only in common law:
Soliciting another person to commit a felony is a crime in North
Carolina. Counseling, enticing or inducing another to commit a
crime is the gravamen of the crime of solicitation. Solicitation is
complete when the request to commit a crime is made, regardless
of whether the crime solicited is ever committed or attempted.
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State v. Richardson, 395 S.E.2d 143, 147-48 (N.C. Ct. App. 1990). In North
Carolina, “to hold a defendant liable for the substantive crime of solicitation,
the State must prove a request to perform every essential element of the
[underlying] crime.” State v. Suggs, 453 S.E. 2d 211, 215 (N.C. Ct. App. 1995).
Thus, to convict a defendant of solicitation to commit assault with a deadly
weapon inflicting serious injury, the state must prove to the jury beyond a
reasonable doubt that the solicitor requested the use of a deadly weapon as
well as infliction of serious injury in the commission of the assault. Id. at 216
(holding that evidence proving only that the defendant asked another person
to inflict serious injury on the victim was insufficient to convict the defendant
of solicitation to commit assault with a deadly weapon inflicting serious
injury, because serious injury could be inflicted without a deadly weapon).
This is the definition of Mendez-Casarez’s prior conviction to which we refer.
The Sentencing Commission has not defined conspiracy, attempt, or
aiding and abetting in its Guidelines or commentary. Where the Guidelines
do not define predicate offenses, sentencing courts should define them
“according to [their] ‘generic, contemporary meaning[s].’” United States v.
Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004) (quoting Taylor v.
United States, 495 U.S. 575, 598 (1990)). The generic, contemporary meanings
of offenses can be found as they are defined “in the criminal codes of most
States,” the Model Penal Code, and treatises such as Wayne R. LaFave &
Austin W. Scott, Substantive Criminal Law (1986).3 Taylor, 495 U.S. at 598.
Here, we use the generic, contemporary meaning of conspiracy for comparison
with the definition of solicitation under North Carolina law.
Conspiracy is characterized by “an agreement between two or more
people for the purposes of promoting or committing a crime.” Cornelio-Pena,
3
A new edition of Substantive Criminal Law has been printed since Taylor was
decided: Wayne R. LaFave, Substantive Criminal Law (2d ed. 2003).
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435 F.3d at 1285; see also Model Penal Code § 5.03(1). In many jurisdictions,
the definition of conspiracy also includes an overt act. Cornelio-Pena, 435 F.3d
at 1286; Dolt, 27 F.3d at 238; 2 Wayne R. LaFave, Substantive Criminal Law §
12.2(b), at 271-72 (2d ed. 2003) (explaining that “most of the states now
require [in their conspiracy statutes] that an overt act . . . be proven . . . ”).
We conclude that the mens rea and actus reus of solicitation are not
clearly less serious than those of conspiracy. First, both offenses require the
same mens rea: the defendant must intend that the underlying crime be
committed. Cornelio-Pena, 435 F.3d at 1286; Suggs, 453 S.E. 2d at 215.4
Second, as to the actus reus, both offenses involve the defendant taking
a step, whether agreeing or soliciting, towards fulfilling his intention that the
crime be committed. Cornelio-Pena, 435 F.3d at 1286. The acts of soliciting
and agreeing “are of similar severity.” Id. Indeed, the difference between the
two acts is whether the other person agrees to commit the crime: a defendant
whose solicitation happens to be declined has only solicited, whereas a
defendant whose solicitation happens to be accepted has entered an agreement
and become a conspirator. Given how closely related the two acts are, we do
not think that the response of the other person determines the seriousness of
the acts of soliciting or agreeing.5
4
In contrast, other crimes, such as criminal facilitation and accessory after the fact, do
not require that the defendant intend that the underlying crime be committed. See Liranzo,
944 F.2d at 79 (explaining that “unlike the crimes of aiding and abetting, conspiracy, or
attempt, the crime of criminal facilitation does not involve the intent to commit the underlying
substantive offense”); 2 LaFave, supra, § 13.6(a), at 400 (explaining that a defendant can only
be an accessory after the fact after the underlying crime has already been committed).
5
Accordingly, we find the Sixth Circuit’s reasoning that solicitation is less serious than
conspiracy because a solicitee could decline a solicitation, Dolt, 27 F.3d at 238-39, to be
unpersuasive.
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Nor does the overt act requirement included in many jurisdictions’
conspiracy statutes change our assessment that the actus reus of solicitation is
not clearly less serious than that of conspiracy. It is true that most
jurisdictions require that in a conspiracy, there must be an agreement as well
as an overt act undertaken by one of the conspirators. 2 LaFave, supra,
§ 12.2(b), at 271-72. Solicitation does not have an overt act requirement. Dolt,
27 F.3d at 239. However, this additional requirement does not elevate the
level of seriousness of conspiracy, because “the [overt] act need not be criminal
or unlawful in itself.” 2 LaFave, supra, § 12.2(b), at 272.
The function of the overt act in a conspiracy prosecution is
simply to manifest ‘that the conspiracy is at work,’ . . . and is
neither a project still resting solely in the minds of the
conspirators nor a fully completed operation no longer in
existence.
Yates v. United States, 354 U.S. 298, 334 (1957) (quoting Carlson v. United
States, 187 F.2d 366, 370 (10th Cir. 1951)), overruled on other grounds by
Burks v. United States, 437 U.S. 1 (1978); see also 2 LaFave, supra, § 12.2(b),
at 273 (same). See also Ianelli v. United States, 420 U.S. 770, 786 n.17 (1977)
(explaining that an overt act “can be innocent in nature, provided it furthers
the purpose of the conspiracy”).
In sum, the acts of soliciting and agreeing are similar, and we do not
find the distinctions drawn between the actus reus requirements of solicitation
and conspiracy to be dispositive in making one offense more clearly serious
than the other. We therefore conclude that the actus reus of solicitation is not
clearly less serious than that of conspiracy.
As solicitation need only be similar to one of the listed offenses in
U.S.S.G. § 2L1.2 cmt. n.5, we need not compare solicitation to aiding and
abetting or attempt in order to hold that U.S.S.G. § 2L1.2 cmt. n.5
encompasses Mendez-Casarez’s prior conviction of solicitation to commit
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assault with a deadly weapon inflicting serious injury. Thus, the district court
correctly concluded that Mendez-Casarez’s prior conviction constitutes a crime
of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
C.
Mendez-Casarez argues that the rule of lenity should operate in his
favor because there is a division of authority on the question of whether to
categorize solicitation convictions as predicate offenses for the purpose of
sentence enhancement.6 However, a division between courts of appeal does
not automatically render a Sentencing Guideline ambiguous. Reno v. Koray,
515 U.S. 50, 64-65 (1995) (“A statute is not ambiguous for purposes of lenity
merely because there is a division of judicial authority over its proper
construction. The rule of lenity applies only if, after seizing everything from
which aid can be derived, we can make no more than a guess as to what
Congress intended.” (citations and quotation marks omitted)). As the
Supreme Court concluded in Reno, “That is not this case.” Id. at 65. In the
instant case, we have used the tools of interpretation available to us to discern
the intent of the Sentencing Commission, and so the rule of lenity does not
operate in Mendez-Casarez’s favor.7
6
See United States v. Bustillos-Pena, 612 F.3d 863, 868 (5th Cir. 2010) (“Although the
provisions of the Sentencing Guidelines are not statutes, we apply the rule of lenity to them
when we find that they are ambiguous.”).
7
Relatedly, Mendez-Casarez contends that interpreting the list in U.S.S.G. § 2L1.2 cmt.
to be non- exhaustive would render it unconstitutionally vague, because a defendant could not
know ahead of time what crimes would qualify him for sentence enhancement. We find his
argument unpersuasive. In this case, any other offenses must be sufficiently similar to the
listed offenses in order to be included under U.S.S.G. § 2L1.2 cmt. n.5. The list “is not so
indefinite as to prevent an ordinary person from understanding what conduct” qualifies a
defendant for sentence enhancement. James v. United States, 550 U.S. 192, 210 n.6 (2007)
(holding that the Armed Career Criminal Act provision that categorizes any offense that
“involves conduct that presents a serious potential risk of physical injury to another” as a
“violent felony” is not unconstitutionally vague).
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IV. CONCLUSION
Because the district court did not err in applying a sixteen-level
enhancement to Mendez-Casarez’s sentence for his prior conviction of
solicitation of assault with a deadly weapon inflicting serious injury, which it
properly deemed a crime of violence under U.S.S.G. § 2L1.2 cmt. n.5, we
AFFIRM Mendez-Casarez’s sentence.
12