§ 2L1.2 COV Enhancement Applies to Conspiracy to Commit Murder Without Overt Act Element

United States v. Pascacio-Rodriguez, No. 12-40264 (5th Cir. Apr. 11, 2014) (Wiener, Dennis, Owen)

The panel concludes “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.”

Pascacio-Rodriguez pleaded guilty to illegal reentry after being convicted in Nevada for conspiracy to commit murder in 2003.  He appealed the application of the 16-level enhancement for a crime of violence conviction under U.S.S.G. § 2L1.2, arguing that the Guidelines refer to the generic definition of “conspiracy” which requires an overt act and that the Nevada murder conspiracy is broader than the generic definition because it does not require proof of an overt act.

As a preliminary matter, the panel recognizes that, under Descamps, it does not matter that Pascacio was actually charged with and pleaded guilty to overt acts since the Nevada statute does not require proof of an overt act.  Accordingly, the panel cannot resort to the modified categorical approach and must determine whether or not conspiracy to commit murder for purposes of § 2L1.2 requires an overt act.

“Neither ‘conspiracy’ nor ‘murder’ is defined by the Guidelines.”  Nonetheless, the panel concludes that “[t]he language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder.” 

Alternatively, the panel concludes “that the generic, contemporary meaning of ‘conspiracy to commit murder’ does not require an overt act.”  Since conspiracy to commit murder was defined at common law, the panel employs a common sense approach based on the generic, contemporary meaning of the terms in the Guidelines.  “At common law, it was not necessary to allege or prove an act in furtherance of a conspiracy.”  The panel surveys federal conspiracy laws and determines that a majority do not require an overt act.  The Model Panel Code does not require an overt act for first- or second-degree felonies such as murder, but a majority of states require an overt act as an element of all criminal conspiracies.  “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.”

Note: This decision does not mean that an overt act is unnecessary for every conspiracy analyzed under § 2L1.2.  The analysis throughout the decision was contingent on conspiracy to commit murder.  Conspiracy to commit other offenses would need to be analyzed separately.