FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10314
Plaintiff-Appellee,
D.C. No.
v. 4:13-cr-01510-
CKJ-BGM-1
JUAN MANUEL RIVERA-
CONSTANTINO, AKA Juan Rivera-
Constantino, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
May 15, 2015—San Francisco, California
Filed August 19, 2015
Before: Richard A. Paez and Richard R. Clifton, Circuit
Judges and Kevin Thomas Duffy,* District Judge.
Opinion by Judge Clifton;
Dissent by Judge Paez
*
The Honorable Kevin Thomas Duffy, U.S. District Judge for the
Southern District of New York, sitting by designation.
2 UNITED STATES V. RIVERA-CONSTANTINO
SUMMARY**
Criminal Law
Affirming a sentence for illegal reentry, the panel held
that a prior federal conviction for conspiring to possess
marijuana with intent to distribute, 21 U.S.C. §§ 846,
841(a)(1), constitutes a prior conviction for “conspiring[ ] . . .
to commit” a “drug trafficking offense” as that phrase is used
in the commentary to U.S.S.G. § 2L1.2(b)(1), thereby making
a defendant subject to a 16-level enhancement under
§ 2L1.2(a)(1)(A).
The panel rejected the defendant’s argument that because
his prior federal conspiracy conviction did not require an
overt act, it was not technically a “conspiracy” within the
meaning of § 2L1.2, cmt. n.5. The panel wrote that it need not
rely on a generic definition analysis because the plain
meaning of § 2L1.2(b)(1) and related commentary is to
encompass § 846 as a predicate offense.
Dissenting, Judge Paez would hold that where a prior
conspiracy conviction under § 846 does not require proof of
an overt act, it does not qualify categorically as a drug
trafficking offense for purposes of the § 2L1.2(b)(1)(A)(i)
enhancement.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. RIVERA-CONSTANTINO 3
COUNSEL
Saul M. Huerta, Tucson, Arizona, for Defendant-Appellant.
Robert L. Miskell, Assistant United States Attorney, and John
S. Leonardo, United States Attorney, Tucson, Arizona, for
Plaintiff-Appellee.
OPINION
CLIFTON, Circuit Judge:
This sentencing appeal requires us to answer the
following question: Is a federal drug trafficking conspiracy
conviction a conviction for conspiracy to commit a drug
trafficking offense? Or, to put it more precisely, does a prior
federal conviction for conspiring to possess marijuana with
intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), constitute a
prior conviction for “conspiring[ ] . . . to commit” a “drug
trafficking offense” as that phrase is used in the commentary
to section 2L1.2(b)(1) of the Sentencing Guidelines, thereby
making a defendant subject to a 16-level sentencing
enhancement? No matter how the question is phrased, the
answer, we conclude, is “yes.” We therefore affirm the
sentence that Defendant Juan Manuel Rivera-Constantino
received and that he now challenges on appeal.
I. Background
In 2011, Rivera-Constantino was convicted of conspiracy
to possess with intent to distribute approximately 195
kilograms of marijuana, a violation of 21 U.S.C. §§ 846,
841(a)(1). He was sentenced to 24 months in prison and 36
4 UNITED STATES V. RIVERA-CONSTANTINO
months of supervised release. Although Rivera-Constantino
was deported to Mexico in 2011, he returned to the United
States in August 2013 and was arrested. In March 2014, a
jury found him guilty of one count of illegal reentry, 8 U.S.C.
§ 1326. In calculating the advisory range under the
Sentencing Guidelines, the district court imposed a 16-level
enhancement on the basis that Rivera-Constantino’s prior
conviction for conspiracy to possess marijuana with intent to
distribute was a predicate drug trafficking offense under
U.S.S.G. § 2L1.2(b)(1). Rivera-Constantino objected to the
application of this enhancement, but his objection was
overruled. The district court imposed a sentence of 51
months in prison and 36 months of supervised release. That
sentence was within the Guidelines range, including the 16-
level enhancement. This appeal followed.
II. Discussion
Rivera-Constantino argues that the district court erred
when it determined that his prior conviction for conspiracy
made him subject to a 16-level sentencing enhancement
pursuant to section 2L1.2(b)(1). We review the district
court’s interpretation of the Sentencing Guidelines de novo.
United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir.
2009).
“U.S.S.G. § 2L1.2 is the Sentencing Guidelines provision
applicable to defendants who illegally reenter the country in
violation of 8 U.S.C. § 1326. The sentencing scheme
embodied in [section] 2L1.2 imposes, via enhancements to
the defendant’s base offense level, more severe punishment
for defendants who have committed serious prior crimes.”
United States v. Rosales-Garcia, 667 F.3d 1348, 1349 (10th
Cir. 2012). Under section 2L1.2(b)(1), a 16-level
UNITED STATES V. RIVERA-CONSTANTINO 5
enhancement applies “[i]f the defendant previously was
deported, or unlawfully remained in the United States, after
. . . a conviction for a felony that is . . . a drug trafficking
offense for which the sentence imposed exceeded 13 months
. . . .”1
According to Application Note 1 for this section, a
“‘[d]rug trafficking offense’” is “an offense under federal,
state, or local law that prohibits the manufacture, import,
export, distribution, or dispensing of, or offer to sell a
controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv)
(2014). Application Note 5 further provides that “[p]rior
convictions of offenses counted under subsection (b)(1) [a set
of offenses that includes, among other things, ‘drug
trafficking offenses’] include the offenses of aiding and
abetting, conspiring, and attempting, to commit such
offenses.” Id. at § 2L1.2, cmt. n.5 (emphasis added).
“Application notes are binding on the courts in their
construction of the Sentencing Guidelines.” United States v.
1
Section 2L1.2(b)(1)(A) has been memorably described as “a sentence
only a grammar teacher could love,” with “passive voice, followed by a
scraggly expression of time (‘previously . . . after’), then a train of
prepositional phrases linked one after another and themselves rudely
interrupted by a pair of parenthetical punctuations.” Rosales-Garcia,
667 F.3d at 1356 (Gorsuch, J., dissenting). Fortunately, the basic meaning
of the sentence is clear: “[I]f the defendant was deported after a
drug-trafficking felony conviction for which the sentence imposed
exceeded thirteen months, then apply the 16-level enhancement.” Anna
Natalie Rol, Comment, U.S. vs. Them: A Perspective on U.S. Immigration
Law Arising from United States v. Rosales-Garcia and the Combination
of Imprisonment and Deportation, 90 DENV. U. L. REV. 769, 790 (2012).
6 UNITED STATES V. RIVERA-CONSTANTINO
Malley, 307 F.3d 1032, 1034 (9th Cir. 2002) (citation and
internal quotation marks omitted).
Rivera-Constantino’s central argument is that his prior
conspiracy conviction is not encompassed by the word
“conspiring” as used in Application Note 5. His 2011
conviction was for the crime of conspiracy to possess
marijuana with intent to distribute, 21 U.S.C. §§ 846,
841(a)(1).2 This offense—like the overwhelming majority of
federal conspiracy offenses—does not require proof of “any
overt acts in furtherance of the conspiracy.” United States v.
Shabani, 513 U.S. 10, 15 (1994). In contrast, in United States
v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014), we
considered the appropriate treatment under a section of the
Immigration and Nationality Act (“INA”) for a Nevada
conviction for “conspiracy to commit the crime of burglary”
in violation of NEV. REV. STAT. §§ 199.480, 205.060(1). In
that context, we defined the generic offense of conspiracy for
purposes of 8 U.S.C. § 1101(a)(43)(U) as requiring an overt
act. 774 F.3d at 534. Relying on Garcia-Santana, Rivera-
Constantino asserts that it was error to impose the sentencing
enhancement because his prior federal conspiracy conviction,
which did not require an overt act, was not technically a
2
21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires
to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.” 21 U.S.C. 841(a)(1),
in turn, makes it unlawful “for any person knowingly or intentionally . . .
to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance . . . .” See
United States v. O’Brien, 52 F.3d 277, 278 (9th Cir. 1995) (“The language
of section 846 is clear. A person who conspires to distribute a controlled
substance described by section 841(a)(1) is subject to the same penalties
prescribed for a section 841(a) offense.”).
UNITED STATES V. RIVERA-CONSTANTINO 7
“conspir[acy]” within the meaning of the word as it was used
in Application Note 5.
Rivera-Constantino’s argument is creative but
unpersuasive. We reject this argument because we do not
accept the premise that the generic definition of conspiracy as
articulated in Garcia-Santana is controlling in this context.
Rather, we conclude that the clear intent of the Sentencing
Commission in drafting section 2L1.2 and its accompanying
commentary was to encompass a prior federal drug
conspiracy conviction under 21 U.S.C. § 846.
“We apply the traditional rules of statutory construction
when interpreting the [S]entencing [G]uidelines,” United
States v. Flores, 729 F.3d 910, 914 n.2 (9th Cir. 2013), and
“[w]e interpret the Guidelines to give effect to the intent of
the Sentencing Commission.” United States v. Gibson,
135 F.3d 257, 261 (2d Cir. 1998). Interpreting a term used in
the Guidelines based on its “generic definition”—the
approach urged by Rivera-Constantino and discussed in
Taylor v. United States, 495 U.S. 575 (1990)—represents a
useful tool for divining legislative intent. But when the plain
meaning of a term is readily apparent from the text, context,
and structure of the relevant Guidelines provision and
commentary, that meaning is dispositive and there is no need
to rely on the “generic definition” framework. See Estrada-
Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008)
(en banc) (recognizing that it was “unnecessary to survey
current criminal law to ascertain a federal definition because
Congress has already supplied it”), overruled on other
grounds by United States v. Aguila-Montes de Oca, 655 F.3d
915 (9th Cir. 2011) (en banc) (per curiam), and abrogated by
Descamps v. United States, 133 S. Ct. 2276 (2013); cf. United
States v. Gonzalez-Corn, No. 13-50480, 2015 WL 4385278,
8 UNITED STATES V. RIVERA-CONSTANTINO
at *1, *5 (9th Cir. July 17, 2015) (recognizing that where a
“conviction qualifies as an aggravated felony on its face[,] . . .
there is no need to compare the elements of [a] conviction to
the elements of a generic federal offense . . . to determine if
[the] conviction was for an aggravated felony” and
concluding that the “categorical matching analysis is
inapplicable . . . because there is nothing to match”).3
Our dissenting colleague suggests that reliance on the
federal definition embodied in 21 U.S.C. § 846 would be
“inapposite” because “Congress used the word ‘conspiracy’
both for crimes with an overt act element and for others
without such an element” and because “Congress has not
supplied a single set of elements that define ‘conspiracy’ for
us to use in interpreting U.S.S.G. § 2L1.2 cmt. n.5.” Dissent
at 17. But at least with regards to federal drug trafficking
conspiracies, Congress surely has provided a single, clear
definition: the one articulated in 21 U.S.C. § 846. This, we
conclude, was overwhelmingly likely to have been the
meaning intended by the Sentencing Commission,
notwithstanding the generic meaning of the word
“conspiracy” as used in other contexts.
Taylor itself is instructive on this point. In Taylor, the
Supreme Court began by emphasizing that:
[o]n the face of the federal enhancement
provision, it is not readily apparent whether
3
In the words of another circuit, we “discern from the language that the
Sentencing Commission used whether it intended for an overt act to be an
element of every conspiracy conviction,” rather than by “employ[ing] the
categorical approach to discern the elements of ‘conspiracy.’” United
States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir. 2014).
UNITED STATES V. RIVERA-CONSTANTINO 9
Congress intended “burglary” to mean
whatever the State of the defendant’s prior
conviction defines as burglary, or whether it
intended that some uniform definition of
burglary be applied to all cases . . . . And if
Congress intended that a uniform definition of
burglary be applied, was that definition to be
the traditional common-law definition, or [a]
broader “generic” definition[ ] . . . or some
other definition specifically tailored to the
purposes of the enhancement statute?
495 U.S. at 580 (footnote omitted).
Here, in contrast, it is readily apparent that the Sentencing
Commission intended section 2L1.2(b)(1) to encompass as
predicate offenses federal drug conspiracy convictions that do
not require proof of an overt act. To hold otherwise would be
to conclude that the Sentencing Commission intended to
exclude federal drug trafficking conspiracy offenses when it
used the word “conspiring” to modify the phrase “drug
trafficking offenses.” Such a result would be not just
marginally “underinclusive,” as the results of the categorical
approach sometimes are, Moncrieffe v. Holder, 133 S. Ct.
1678, 1692 (2013), but downright absurd. Why would the
Sentencing Commission intend to exclude from the term
“drug trafficking offenses” a federal conviction for a drug
trafficking offense under federal law? Congress has decided
not to require an overt act as an element of federal drug
conspiracy, and we have no reason to conclude that the
Sentencing Commission intended to abrogate that decision.
Indeed, to adopt such an interpretation would run counter to
basic notions of common sense. “[I]n the course of the
application of the [S]entencing [G]uidelines, as in the
10 UNITED STATES V. RIVERA-CONSTANTINO
application of any legal concept, the use of ‘common sense’
is more than just relevant, but required.” United States v.
White, 903 F.2d 457, 462 (7th Cir. 1990). We reject Rivera-
Constantino’s reading of section 2L1.2(b)(1) because
“[c]ourts ought not read the Guidelines in a way that makes
the Sentencing Commission look foolish.” United States v.
Turner, 998 F.2d 534, 538 (7th Cir. 1993).
Our interpretation of section 2L1.2(b)(1) is further
supported by an examination of the Sentencing Guidelines as
a whole. See United States v. Leal-Felix, 665 F.3d 1037,
1041–42 (9th Cir. 2011) (“Interpretation of a word or phrase
[in a statute] depends upon reading the whole statutory text,
considering the purpose and context of the statute, and
consulting any precedents or authorities that inform the
analysis.” (alteration in original; citation and internal
quotation marks omitted)). The term “conspiracy” is used
elsewhere in the Guidelines (and associated commentary and
appendices) to encompass a conspiracy conviction under
21 U.S.C. § 846. See, e.g., U.S.S.G. § 2D1.1; U.S.S.G.
§ 2X1.1. “A standard principle of statutory construction
provides that identical words and phrases within the same
statute should normally be given the same meaning.”
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224,
232 (2007).
Moreover, the two other circuits that have considered this
question have both held that the Sentencing Commission
intended section 2L1.2(b)(1) to encompass federal drug
trafficking conspiracies. The Fifth Circuit has concluded that
“[t]here is no reason to search outside the Guidelines for a
definition of ‘conspiracy’ applicable to this enhancement”
because “Application Note 5 is a clear statement by the
Sentencing Commission that the enhancement applies to
UNITED STATES V. RIVERA-CONSTANTINO 11
conspiracies to commit federal drug trafficking offenses.”
United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th
Cir. 2012) (footnote omitted). The Sixth Circuit has similarly
held that “[a] violation of § 841(a)(1) is a federal drug
trafficking offense as defined in Application Note 1” and that
“Application Note 5 . . . clarifies that a conspiracy to commit
an offense defined in Note 1 is also a ‘drug trafficking
offense’ for purposes of the Guidelines.” United States v.
Sanbria-Bueno, 549 F. App’x 434, 439 (6th Cir. 2013).
Our prior decision in Garcia-Santana, 774 F.3d 528, does
not compel a contrary conclusion. In Garcia-Santana, we
held “that the generic definition of ‘conspiracy’ under [a
provision of] the Immigration and Nationality Act . . .
include[d] proof of an overt act in furtherance of the
conspiracy.” Id. at 532. Here, in contrast, we are called upon
to interpret the Sentencing Guidelines, not the INA. In
addition, the predicate conviction we consider here is a
federal offense, not a conviction under state law. Although
it is true that “decisional law defining [a] term . . . [used] in
the sentencing context . . . is informed by the definition of the
same term in the immigration context,” United States v.
Medina-Villa, 567 F.3d 507, 511 (9th Cir. 2009) (citations
and footnote omitted), we will not blindly import a definition
when the context makes clear that doing so would be
inappropriate. The language used in the provision at issue
here is materially different from that used in the provision
considered in Garcia-Santana, and the context is entirely
different. Cf. United States v. Leal-Vega, 680 F.3d 1160,
1165 (9th Cir. 2012) (noting that “our holdings in the
immigration context do not definitively resolve the issue . . .
because the text of the immigration statute . . . differs from
the text of the Sentencing Guidelines”).
12 UNITED STATES V. RIVERA-CONSTANTINO
We conclude that we need not rely on a generic definition
analysis because the plain meaning of section 2L1.2(b)(1) and
related commentary is to encompass 21 U.S.C. § 846 as a
predicate offense.4
III. Conclusion
The district court properly determined that the 16-level
sentencing enhancement applied to Rivera-Constantino based
on his prior federal drug conspiracy conviction. We affirm
the sentence.
AFFIRMED.
PAEZ, Circuit Judge, dissenting.
I respectfully dissent. The majority attempts to
distinguish United States v. Garcia-Santana, 774 F.3d 528
(9th Cir. 2014), and to sidestep the Taylor1 categorical
approach to hold that a conspiracy conviction under
21 U.S.C. § 846 qualifies categorically as a drug trafficking
offense, warranting the sixteen-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(i). Because I would follow
4
We emphasize that our holding is a narrow one. We need not, and do
not, consider the meaning of the phrase “conspiring . . . to commit . . . a
‘drug trafficking offense’” as it relates to conspiracy convictions under
state law, for example. We hold only that, in this context, the plain
meaning of the language used by the Sentencing Commission was to
encompass a prior federal drug conspiracy conviction under 21 U.S.C.
§ 846.
1
Taylor v. United States, 495 U.S. 575 (1990).
UNITED STATES V. RIVERA-CONSTANTINO 13
Garcia-Santana, I would hold that where a prior conspiracy
conviction under § 846 does not require proof of an overt act,
it does not qualify categorically as a drug trafficking offense
for purposes of the § 2L1.2(b)(1)(A)(i) enhancement. I
therefore would vacate the district court’s sentence, and
remand for consideration of whether Rivera-Constantino’s
prior conviction under § 846 warrants an eight-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(C) as an
aggravated felony for “illicit trafficking in a controlled
substance (as defined in section 802 of Title 21), including a
drug trafficking crime (as defined in section 924(c) of Title
18),” 8 U.S.C. § 1101(a)(43)(B).
1. The majority recognizes that we already have defined
the generic offense of conspiracy, Maj. Op. at 6 (citing
Garcia-Santana, 774 F.3d 528), but seeks to avoid applying
that definition outside the Immigration and Nationality Act
(“INA”) context. The majority, however, fails to distinguish
meaningfully the U.S.S.G. § 2L1.2(b)(1)(A)(i) and cmt. n.5
enhancement here from the INA provision interpreted in
Garcia-Santana, 8 U.S.C. § 1101(a)(43)(U). Both refer to a
class of prior convictions, both refer generically to
conspiracy, and both capture for enhancement purposes or
collateral consequences prior offenses under federal or state
law. Under the INA, “‘aggravated felony’ means . . . an
attempt or conspiracy to commit an offense described in
[§ 1101(a)(43)].” § 1101(a)(43)(U). “The term applies to an
offense described in th[at] paragraph whether in violation of
Federal or State law . . . .” § 1101(a)(43). And “aggravated
felony” includes the offense of “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section
924(c) of Title 18).” § 1101(a)(43)(B).
14 UNITED STATES V. RIVERA-CONSTANTINO
Reading that INA provision side-by-side with U.S.S.G.
§ 2L1.2(b)(1)(A)(i) and cmt. n.5 belies the majority’s view
that the provisions are “materially different,” Maj. Op. at 11.
Application Note 5 for § 2L1.2 explains: “Prior convictions
of offenses counted under subsection (b)(1) include the
offenses of aiding and abetting, conspiring, and attempting,
to commit such offenses.” § 2L1.2 cmt. n.5. In turn,
subsection (b)(1) refers, in relevant part, to a class of prior
convictions: “‘Drug trafficking offense’ means an offense
under federal, state, or local law that prohibits . . . the
possession of a controlled substance . . . with intent to . . .
distribute, or dispense.” § 2L1.2 cmt. n.1(B)(iv). The
majority says the two provisions are “materially different,”
Maj. Op. at 11, but offers no analysis to demonstrate how we
should reach that essential conclusion in this case involving
an enhancement that refers to generic conspiracy and captures
a class of prior convictions.
2. Next, the majority disregards our established rule of
applying “the categorical and modified categorical
approaches described in Taylor v. United States, 495 U.S. 575
(1990), to determine whether a defendant’s prior conviction
satisfies U.S.S.G. § 2L1.2(b)(1)(A),” United States v.
Torre-Jimenez, 771 F.3d 1163, 1165 (9th Cir. 2014) (quoting
United States v. Leal-Vega, 680 F.3d 1160, 1163 (9th Cir.
2012)) (quotation marks omitted). “We derive the meaning
of an enumerated Guidelines crime not from the offense’s
ordinary meaning but rather by surveying the Model Penal
Code and state statutes to determine how they define the
offense.” United States v. Esparza-Herrera, 557 F.3d 1019,
1022 (9th Cir. 2009) (per curiam). In Garcia-Santana, we
applied “the methodology prescribed by the Supreme Court
for defining generic offenses for categorical purposes,” to
determine that “the generic federal definition of conspiracy,
UNITED STATES V. RIVERA-CONSTANTINO 15
codified at 8 U.S.C. § 1101(a)(43)(U), conditions conviction
on performance of an overt act in pursuit of the conspiratorial
objective.” 774 F.3d at 534 (footnote omitted). Because
§ 2L1.2(b)(1)(A)(i) captures prior federal, state, and local
offenses for purposes of sentence enhancement and because
the text of Application Notes 1(B)(iv) and 5 under § 2L1.2
are not materially distinct from the text interpreted in Garcia-
Santana, I would conclude that a prior conviction for
conspiracy must have an overt act element to qualify
categorically as a drug trafficking offense under
§ 2L1.2(b)(1)(A)(i).
We already have applied this approach to U.S.S.G.
§ 2L1.2(b)(1)(A). In addition to conspiracy, Application
Note 5 includes certain prior attempt offenses. See § 2L1.2
cmt. n.5. And “in dealing with attempt crimes, the district
court can impose the 16-level enhancement under § 2L1.2(a)
only if both the state’s definition of ‘attempt’ and the
underlying state offense are categorical matches for the
federal generic ‘attempt’ definition and the underlying federal
generic offense.” United States v. Gonzalez-Monterroso,
745 F.3d 1237, 1240 (9th Cir. 2014) (emphasis added).
Notably, in defining “attempt,” Gonzalez-Monterroso cited
the definition of “attempt” set forth in an INA case involving
8 U.S.C. § 1101(a)(43)(G) & (U). See 745 F.3d at 1243;
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100 (9th Cir.
2011).2 The majority recognizes the generic definition of
2
But see United States v. Taylor, 529 F.3d 1232, 1236 (9th Cir. 2008)
(“For purposes of USSG § 4B1.2(a), a state offense qualifies as a crime of
violence if the state crime’s definition is coextensive with the crime’s
common-law or ‘federal’ definition.”); id. at n.2 (“We use the terms
‘federal definition’ and ‘common-law definition’ interchangeably in the
context of crimes of violence.”).
16 UNITED STATES V. RIVERA-CONSTANTINO
conspiracy as explained in Garcia-Santana, Maj. Op. at 6, but
the majority today carves out “conspiracy” from “attempt.”
Stating that “the [INA or Garcia-Santana] context is entirely
different,” Maj. Op. at 11, does not address the precedent that
should guide our interpretation of the conspiracy provision in
§ 2L1.2 cmt. n.5.
3. The majority in footnote 4 states that its holding is a
narrow one, but U.S.S.G. § 2L1.2 refers collectively to
federal, state, and local predicate offenses without
distinguishing federal from state or local offenses. The
majority also relies on a Fifth Circuit opinion, United States
v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012), and an
unpublished Sixth Circuit memorandum, United States v.
Sanbria-Bueno, 549 F. App’x 434 (6th Cir. 2013)
(unpublished), that followed the Fifth Circuit’s reasoning.
But the Fifth Circuit since has called into question a footnote
nearly identical to the majority’s footnote 4. See United
States v. Pascacio-Rodriguez, 749 F.3d 353, 367 (5th Cir.
2014).3 “[T]here is no basis for concluding that the
Sentencing Commission intended to create a dichotomy in
§ 2L1.2 between conspiracy convictions under federal law
and conspiracy convictions under state law.” Id. Thus, the
3
Compare Maj. Op. at 12 n.4 (“We need not, and do not, consider the
meaning of the phrase ‘conspiring . . . to commit . . . a drug trafficking
offense’ as it relates to conspiracy convictions under state law, for
example.” (quotation marks omitted)) with Rodriguez-Escareno, 700 F.3d
at 754 n.2 (“We imply no position on the relevance of this reasoning to
applying the enhancement to convictions for conspiracies to commit
state-law offenses.”).
UNITED STATES V. RIVERA-CONSTANTINO 17
majority leaves to future cases the unenviable task of divining
how to make today’s holding a narrow one.4
4. Separately, because Congress used the word
“conspiracy” both for crimes with an overt act element and
for others without such an element, our case law that
recognizes when Congress “has already supplied [a federal
definition],” Maj. Op. at 7 (quoting Estrada-Espinoza v.
Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc))5, is
inapposite. Congress has not supplied a single set of
elements that define “conspiracy” for us to use in interpreting
U.S.S.G. § 2L1.2 cmt. n.5. Compare 21 U.S.C. § 846 (not
requiring an overt act) with 18 U.S.C. § 371 (requiring an
overt act). “Parallel federal crimes are probative, but not
independently determinative, of the contemporary, generic
definition of an offense.” Garcia-Santana, 774 F.3d at 535.
4
The Fifth Circuit in Pascacio-Rodriguez provided alternative bases for
its holding that a state conviction for conspiracy to commit murder
qualified for a sixteen-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Compare id. at 367–68 with Maj. Op. at 8 n.3. The
Fifth Circuit explained that “the generic, contemporary meaning of
‘conspiracy to commit murder’ does not require an overt act” and that the
“language and context of § 2L1.2 indicate that an overt act is not required
for a conspiracy to commit murder.” Pascacio-Rodriguez, 749 F.3d at
367–68. Whereas both bases could lead to the same result in the Fifth
Circuit, Garcia-Santana already has determined the generic federal
definition of conspiracy in our circuit. See Garcia-Santana, 774 F.3d at
537.
5
Cf. United States v. Gonzalez-Corn, No. 13-50480, slip op. at 4, 9 (9th
Cir. July 17, 2015) (declining to apply Taylor in reviewing a prior
conviction when that conviction’s “statutory scheme” was incorporated
into the INA, which cross-references 18 U.S.C. § 924(c)(2)).
18 UNITED STATES V. RIVERA-CONSTANTINO
Focusing on what the majority considers the
“overwhelmingly likely” intention of the Sentencing
Commission “at least with regards to federal drug trafficking
conspiracies,” Maj. Op. at 8, disregards Garcia-Santana and
the structure of the Sentencing Guidelines. Both require us
to determine and apply the generic meaning of “conspiracy.”
See Garcia-Santana, 774 F.3d at 535–37 (focusing on “the
generic definition of conspiracy”); U.S.S.G. § 2L1.2(b)(1)(A)
& cmt. n.5 (requiring application of “conspiring” to not only
federal, state, and local drug trafficking offenses, but also to
crimes of violence, firearms offenses, child pornography
offenses, national security offenses, human trafficking
offenses, and alien smuggling offenses).6 Although the
categorical approach at times is underinclusive, cf. Garcia-
Santana, 774 F.3d at 539, we are obligated to follow Taylor,
6
The authors of Federal Sentencing Law and Practice have observed:
[The Fifth Circuit’s statement, “There is no reason to
search outside the Guidelines for a definition of
‘conspiracy’ applicable to this enhancement.
Application Note 5 is a clear statement by the
Sentencing Commission that the enhancement applies
to conspiracies to commit federal drug trafficking
offenses”] seems to sidestep the issue raised by the
defendant,—what does “conspiracy” mean as used in
application note 5? Although a conviction for
conspiracy under 21 U.S.C. § 846 does not require
proof of an overt act, the general conspiracy offense in
18 U.S.C.A. § 371 does. Application note 5 is not
limited to conspiracy to commit a drug trafficking
offense; it also encompasses conspiracy to commit a
crime of violence and other offenses that would be
prosecuted under 18 U.S.C. § 371.
Thomas W. Hutchison et al., Federal Sentencing Law and Practice
§ 2L1.2 n.300 (quoting Rodriguez-Escareno, 700 F.3d at 754).
UNITED STATES V. RIVERA-CONSTANTINO 19
Garcia-Santana, and other relevant precedent in interpreting
the enhancement provisions in § 2L1.2, including conspiracy
offenses. Garcia-Santana defined generic federal conspiracy,
and, I would apply it here.
Further, the majority cites United States v. Shabani,
513 U.S. 10 (1994), to buttress its holding. However, we
already have distinguished Shabani as one of “a line of
Supreme Court cases interpreting ‘conspiracy’ as used in
specific federal criminal statutes, rather than in the generic
federal conspiracy statute.” Garcia-Santana, 774 F.3d at 537
(citing Shabani, among other cases). “[T]hose cases explain
how courts should interpret federal statutes criminalizing
conspiracies.” Id. at 538. But provisions that assign
“collateral consequences . . . to convictions from all
jurisdictions, not merely to federal convictions,” id., are
distinct.
5. Finally, following Garcia-Santana and Taylor yields
a result consistent with the purpose and structure of the
Sentencing Guidelines. First, a prior conspiracy conviction
that lacks an overt act requirement still may constitute an
aggravated felony and trigger an eight-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(C), alleviating concerns about
underinclusiveness. See Garcia-Santana, 774 F.3d at 539
n.9; § 2L1.2(b)(1)(C) (“a conviction for an aggravated felony,
increase by 8 levels”). Second, reading in context other
references in the Guidelines to “conspiracy” demonstrates
that they are meaningfully distinct from § 2L1.2(b)(1)(A)(i).
The majority cites U.S.S.G. § 2D1.1, “Unlawful
Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy,” and U.S.S.G. § 2X1.1,
“Attempt, Solicitation, or Conspiracy (Not Covered by a
20 UNITED STATES V. RIVERA-CONSTANTINO
Specific Offense Guideline).” See Maj. Op. at 10. Yet both
reference specific federal statutes, not generic local, state, and
federal offenses. See, e.g., U.S.S.G. § 2D1.1 (referencing, for
instance, convictions under § 841(b)(1)A)); U.S.S.G. § 2X1.1
cmt. (listing statutory provisions, including 18 U.S.C. §§ 371,
372, 2271, 2282A, 2282B). And the title of § 2D1.1 lists
“Attempt or Conspiracy” after a semicolon that follows a
listing of drug offense types. By contrast, Application Notes
1(B)(iv) and 5 under § 2L1.2 lack any such cross-references
to federal statutes and apply to more than just drug trafficking
offenses. See U.S.S.G. § 2L1.2(b)(1)(A) (including crimes of
violence, firearms offenses, child pornography offenses,
national security offenses, human trafficking offenses, alien
smuggling offenses, in addition to drug trafficking offenses).
In sum, following Garcia-Santana and Taylor to define
generic conspiracy recognizes the purpose and structure of
the Sentencing Guidelines.
For these reasons, I would reverse Rivera-Constantino’s
sentence and remand with directions to the district court to
consider in the first instance whether his prior conspiracy
conviction under § 846 warrants an eight-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(C) as an aggravated felony.