The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez-Cruz on Monday, September 12, 2016.
Jesus Domingo Martinez-Cruz and a friend were walking along I-10 in New Mexico when they were stopped by border patrol agents. They admitted to carrying contraband across the border, and Martinez-Cruz admitted that he was not supposed to be in the United States. The backpacks Martinez-Cruz and his companion were carrying were filled with marijuana. Martinez-Cruz pleaded guilty to three counts: possession with intent to distribute more than 50 kilograms of marijuana, conspiracy to possess with intent to distribute more than 50 kilograms of marijuana, and reentering the United States after removal.
The presentence report recommended an adjusted offense level of 16 for the drug offenses and a base offense level of 8 for the immigration violation. The PSR then enhanced his immigration offense level by 12 levels for having previously been convicted of a felony drug trafficking conspiracy, to which enhancement Martinez-Cruz objected. After a hearing, the district court overruled Martinez-Cruz’s objection, and he was sentenced to 33 months’ imprisonment.
Martinez-Cruz appealed, arguing that the statute under which he was previously convicted did not define “conspiracy,” so the categorical approach should apply. Because the generic definition of conspiracy requires an overt act and he did not perform an overt act, Martinez-Cruz argued he should only receive an 8-level enhancement for his prior conviction.
The Tenth Circuit began by evaluating its prior precedent and that of other circuits. The Tenth Circuit relied on United States v. Dominguez-Rodriguez, 817 F.3d 1190, 1194 (10th Cir. 2016), to support the use of the categorical approach to determine whether a prior conviction qualifies as a drug trafficking offense. The Tenth Circuit focused on the word “conspiring” because Martinez-Cruz’s offense was a conspiracy offense. The generic definition of “conspiracy” requires an overt act, but the statute under which Martinez-Cruz was convicted did not. The government argued that the Tenth Circuit should not apply the categorical approach at all, but if it did, it should hold that an overt act is not required in furtherance of a conspiracy. The government relied on various cases from other circuits to support its position. Because the Sentencing Commission did not “expressly intend” to include § 846 conspiracy convictions in enhancements under § 2L1.2, the Tenth Circuit found the government’s arguments unpersuasive. The Tenth Circuit agreed with Martinez-Cruz that the generic definition of “conspiracy” was a categorical mismatch with § 846, and he should receive an 8-level enhancement instead of a 12-level enhancement. Although the Tenth Circuit’s conclusion differed from that enunciated by the Fifth, Sixth, and Ninth Circuits, the Tenth Circuit found that under its own precedent it was required to apply the categorical approach.
The Tenth Circuit remanded for resentencing.