     Case: 13-40472      Document: 00512690427         Page: 1    Date Filed: 07/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                      No. 13-40472                                  FILED
                                                                                 July 8, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                 Plaintiff–Appellee,

v.

ALVARO HIGINIO MEJIA-AGUILAR,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1611-1


Before BARKSDALE, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Alvaro Higinio Mejia-Aguilar was convicted of
being unlawfully present in the United States after deportation in violation of
8 U.S.C. §§ 1326(a) and (b). The district court concluded that Mejia-Aguilar
had been previously deported for a drug trafficking offense and applied a 16-
level enhancement under United States Sentencing Guidelines Manual
(U.S.S.G.) § 2L1.2(b)(1)(A)(i). Mejia-Aguilar was sentenced to 41 months in



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 13-40472
prison. He argues that the district court erred in applying the enhancement
and appeals his sentence. We affirm.
                                              I
      Mejia-Aguilar was deported after a conviction for “[s]olicitation to
possess a narcotic drug for sale” in violation of Arizona Revised Statutes §§ 13-
1002, 13-3408, for which he was sentenced to two years in custody. He was
later found in the United States and pleaded guilty to illegal reentry in
violation of 8 U.S.C. §§ 1326(a) and (b). The Presentence Investigation Report
(PSR) prepared by the Probation Office determined that Mejia-Aguilar had a
base offense level of 8. Because of his prior Arizona conviction, the Probation
Office applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a
felony drug trafficking offense for which the sentence imposed exceeded 13
months.       Mejia-Aguilar received a 3-level reduction for acceptance of
responsibility, resulting in a total offense level of 21 and an advisory
Guidelines range of 41-51 months of imprisonment.
      Mejia-Aguilar had filed objections to the enhancement applied in the
PSR, which he renewed at sentencing. The district court overruled Mejia-
Aguilar’s objections and sentenced him to 41 months in prison. Mejia-Aguilar
now appeals.
                                              II
      “This court reviews de novo a district court’s conclusion that a prior
conviction constitutes a drug trafficking offense.” 1 A “drug trafficking offense”
under U.S.S.G. § 2L1.2(b)(1)(A)(i) 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


      1   United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009).
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                                             No. 13-40472
manufacture, import, export, distribute, or dispense.” 2 The commentary to
§ 2L1.2 further provides that “[p]rior convictions of offenses counted under
subsection (b)(1) include the offenses of aiding and abetting, conspiring, and
attempting, to commit such offenses.” 3                   Accordingly, aiding and abetting,
conspiring, and attempting to commit a drug trafficking offense, for which a
sentence exceeding 13 months is imposed, would result in a 16-level
enhancement. The question is whether solicitation of a drug trafficking offense
comes within the commentary to § 2L1.2.
           The answer to that question is largely resolved by this court’s prior
precedent. We have previously held that “aiding and abetting, conspiring, and
attempting[] to commit [any of the enumerated offenses]” is not an exclusive
list of offenses. 4 Our reasoning was that “[t]he commentary to the Guidelines’
‘General Application Principles’ states that ‘the term “includes” is not
exhaustive.’” 5 We said, “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.” 6
           We have further held that a solicitation offense was within the scope of
the commentary to § 2L1.2 regarding aiding and abetting, conspiring, and



           2   U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).
           3   Id. § 2L1.2 cmt. n.5.
         See United States v. Mendez-Casarez, 624 F.3d 233, 237-38 (5th Cir. 2010) (“[W]e
           4

conclude that the phrase in U.S.S.G. § 2L1.2 cmt. n. 5 explaining that [qualifying offenses
include the inchoate offenses of aiding and abetting, conspiracy, and attempt] is not an
exhaustive list . . . [and] the offenses listed—aiding and abetting, conspiring, and
attempting—must be interpreted as examples, rather than an exclusive list.”), abrogated on
other grounds by United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc).
           5   Id. at 237 (quoting U.S.S.G. § 1B1.1 cmt. n.2).
           6   Id. (collecting authorities that have reached the same conclusion).
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attempting to commit the offenses enumerated in subsection (b)(1) of that
Guideline provision. In United States v. Mendez-Casarez, 7 this court addressed
whether the North Carolina crime of solicitation to commit assault with a
deadly weapon inflicting serious injury constituted a crime of violence under
the Sentencing Guidelines. 8          Citing the reasoning of decisions from other
circuit courts, we explained that “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.” 9 “The purpose of comparing
offenses,” we said, “is to avoid categorizing a prior offense as a predicate offense
that qualifies a defendant for sentence enhancement when the prior offense is
clearly less serious than the offenses enumerated as constituting the
substantive offense.” 10 We determined that solicitation under North Carolina
law was not clearly less serious than conspiracy. 11 We reasoned that “both
offenses require the same mens rea: the defendant must intend that the
underlying crime be committed.” 12 With respect to the actus reus, we noted
that “both offenses involve the defendant taking a step, whether agreeing or
soliciting, towards fulfilling his intention that the crime be committed.” 13 The
“acts of soliciting and agreeing ‘are of similar severity,’” we concluded. 14
      Mejia-Aguilar attempts to distinguish Mendez-Casarez, asserting that
North Carolina’s solicitation law requires proof of each element of the


      7   624 F.3d 233 (5th Cir. 2010).
      8   Mendez-Casarez, 624 F.3d at 237-40.
      9   Id. at 238.
      10   Id.
      11   Id. at 239-40.
      12   Id. at 239.
      13   Id. at 240.
      14   Id. (quoting United States v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006)).
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                                          No. 13-40472
substantive crime, whereas Arizona treats solicitation separately from the
underlying offense. We are unpersuaded. North Carolina law requires that
the prosecution “prove a request to perform every essential element” of the
underlying offense. 15 The Arizona law similarly requires proof of intent and
proof of conduct that would constitute a crime. Arizona’s solicitation statute
defines the offense as:
      A person, other than a peace officer acting in his official capacity
      within the scope of his authority and in the line of duty, [who], with
      the intent to promote or facilitate the commission of a felony or
      misdemeanor, . . . commands, encourages, requests or solicits
      another person to engage in specific conduct which would
      constitute the felony or misdemeanor or which would establish the
      other’s complicity in its commission. 16

      The mens rea and actus reus of the North Carolina and Arizona offenses
of solicitation are not clearly less serious than the crime of conspiracy. As
noted above, the mens rea required by both Arizona’s solicitation statute and
the crime of conspiracy is that the defendant intend that the crime be
committed. Similarly, both require an actus reus that involves the defendant
taking a step in furtherance of his intention that the crime be committed.
Although Arizona’s solicitation statute requires that the defendant command,
encourage, request, or solicit another to commit a crime, while conspiracy
requires an agreement between the defendant and another to commit the
offense, we explained in Mendez-Casarez that “[t]he acts of soliciting and
agreeing are of similar severity.” 17 We therefore conclude that the district
court did not err in holding that a 16-level enhancement was appropriate as a




      15   Id. at 239 (emphasis added).
      16   ARIZ. REV. STAT. ANN. § 13-1002(A) (2014) (West).
      17   Mendez-Casarez, 624 F.3d at 240 (internal quotation marks omitted).
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                                        No. 13-40472
result of Mejia-Aguilar’s prior conviction for solicitation to possess a narcotic
drug for sale.
                                              III
      We note that there is some question as to whether, and if so to what
extent, our decision in United States v. Mendez-Casarez has survived in the
wake of our court’s en banc decision in United States v. Rodriguez. 18 The
Fourth Circuit has observed that Rodriguez “arguably undermines the
precedential weight accorded Mendez-Casarez.” 19
      Our en banc court expressly disapproved of Mendez-Casarez to the extent
that it could be read as holding that courts should “look always to the majority
of state codes—as well as the Model Penal Code, federal law, and criminal law
treatises—when deriving the ‘generic, contemporary meaning’ of an undefined
offense category in a federal sentencing enhancement.” 20                 The continued
vitality of our decision in Mendez-Casarez was otherwise unaffected by
Rodriguez.
      A question also arises as to whether the methodology set forth in
Rodriguez applies in our analysis of solicitation offenses. Because “solicitation”
is not an enumerated offense in § 2L1.2, and in light of Mendez-Casarez’s
construction of note 5 in the commentary to § 2L1.2, we conclude that we are
to compare the seriousness of the solicitation offense of which Mejia-Aguilar
was convicted to the seriousness of a conspiracy to possess a narcotic drug for
sale. That is the analysis that we conducted in section II above. We need not
treat “solicitation” as an offense enumerated in the commentary and engage in
the Rodriguez analysis.


      18   711 F.3d 541 (5th Cir. 2013) (en banc).
      19   United States v. Medina-Campo, 714 F.3d 232, 239 n.7 (4th Cir. 2013).
      20   Rodriguez, 711 F.3d at 555 (emphasis added).
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                                         No. 13-40472
        But if we are mistaken, and we must employ the Rodriguez
methodology, the outcome is the same.               The en banc court in Rodriguez
“adopt[ed] a plain-meaning approach when determining the ‘generic,
contemporary meaning’ of non-common-law offense categories enumerated in
federal sentencing enhancements.” 21 The court set forth the steps that we are
to take:
            Under this approach, our application of Taylor’s categorical
      approach to a prior state conviction proceeds in the following four
      steps: First, we identify the undefined offense category that
      triggers the federal sentencing enhancement. We then evaluate
      whether the meaning of that offense category is clear from the
      language of the enhancement at issue or its applicable
      commentary. If not, we proceed to step two, and determine
      whether that undefined offense category is an offense category
      defined at common law, or an offense category that is not defined
      at common law. Third, if the offense category is a non-common-
      law offense category, then we derive its “generic, contemporary
      meaning” from its common usage as stated in legal and other well-
      accepted dictionaries. Fourth, we look to the elements of the state
      statute of conviction and evaluate whether those elements comport
      with the generic meaning of the enumerated offense category. 22
      Mejia-Aguilar contends that Rodriguez “is inapplicable because
solicitation was a crime at common law.” This ignores the fact that the crime
is not merely solicitation but solicitation to possess a narcotic drug for sale. 23
Nevertheless, we conclude that regardless of whether we consider “solicitation”
or “solicitation to possess a narcotic drug for sale” to be common-law offenses




      21   Id. at 552.
      22   Id. at 552-53 (footnotes omitted).
      23  Cf. United States v. Pascacio-Rodriguez, 749 F.3d 353, 358-59 (5th Cir. 2014)
(considering whether both the inchoate offense—conspiracy—and the underlying substantive
crime—murder—were crimes at common law in determining whether Rodriguez applied).
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                                         No. 13-40472
or within “an undefined offense category,” either path under the Rodriguez
methodology leads to the same conclusion in the present case.
       If we consider “solicitation” as the offense, rather than “solicitation to
possess a narcotic drug for sale,” and if “solicitation” is a common-law offense, 24
then “our precedent . . . looks to definitions in the variety of state codes, the
Model Penal Code, federal law, and criminal law treatises to define the
‘generic, contemporary meaning’ of offense categories defined at common
law.” 25 The generic, contemporary meaning of “solicitation” is congruent with
the common-law definition, which is most simply described “as asking another
person to commit an offense.” 26 “The gravamen of the offense of soliciting lies
in counseling, enticing or inducing another to commit a crime.” 27 “It is an
indictable offence at common law for one to counsel and solicit another to
commit a felony or other aggravated offence, although the solicitation is of no
effect, and the crime counselled is not in fact committed.” 28 Professor Wayne
R. LaFave has noted with regard to current state formulations of the offense
that “the acts of commanding or requesting another to engage in conduct which
is criminal would seem of necessity to require an accompanying intent that
such conduct occur, and there is nothing in the decided cases suggesting
otherwise.” 29       We have little difficulty in concluding that Mejia-Aguilar’s
Arizona conviction was for generic “solicitation.”




       24   Rodriguez, 711 F.3d at 558 (listing solicitation as a common-law offense).
       25   Id. at 552 n.17.
       26   2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 11.1 (2d ed. 2003).
       27   State v. Furr, 235 S.E.2d 193, 199 (N.C. 1977).
       28   Commonwealth v. Flagg, 135 Mass. 545, 549 (1883).
       29   2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 11.1 (2d ed. 2003) (footnotes
omitted).
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                                         No. 13-40472
      If “solicitation” or “solicitation to possess a narcotic for sale” are not
common-law offenses, then “we derive its ‘generic, contemporary meaning’
from its common usage as stated in legal and other well-accepted
dictionaries.” 30 Black’s Law Dictionary defines “solicitation” in relevant part
as: “1. The act or an instance of requesting or seeking to obtain something; a
request or petition[.] 2. The criminal offense of urging, advising, commanding,
or otherwise inciting another to commit a crime[.]” 31 Webster’s II New College
Dictionary defines “solicit” in relevant part as: “1. To try to obtain by entreaty,
persuasion, or formal application[.] 2. To petition persistently . . . . 3. To entice
into evil or illegal action.” 32 Mejia-Aguilar’s conviction for “command[ing],
encourag[ing], request[ing] or solicit[ing] another person to engage in specific
conduct which would constitute the felony or misdemeanor or which would
establish the other’s complicity in its commission” 33 comports with the generic,
dictionary meaning of “solicitation.”
                                             IV
      Mejia-Aguilar argues that there is no documentation in the record to
clarify the specific offense that was the basis of his conviction and that
therefore we must consider only whether the least culpable act constituting a
violation of Arizona’s solicitation statute qualifies as a drug trafficking offense.
Mejia-Aguilar does not specify which action prohibited by Arizona’s solicitation
statute is least culpable and less serious than the crimes of conspiracy, aiding
and abetting, and attempt, but we need not determine which action is least
culpable to conclude that this argument also fails. Regardless of the action



      30   Rodriguez, 711 F.3d at 552.
      31   BLACK’S LAW DICTIONARY 1520 (9th ed. 2009).
      32   WEBSTER’S II NEW COLLEGE DICTIONARY 1075 (3d ed. 2005).
      33   ARIZ. REV. STAT. ANN. § 13-1002(A) (2014) (West).
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                                    No. 13-40472
Mejia-Aguilar took in violating the statute—commanding, encouraging,
requesting, or soliciting—he took some step in furtherance of his intention that
a crime be committed. Accordingly, considering only the least culpable act
constituting a violation of Arizona’s solicitation statute does not change our
conclusion that a conviction under the statute qualifies as a drug trafficking
offense under U.S.S.G. § 2L1.2(b)(1)(A)(i).
                                *        *         *
      For the foregoing reasons, Mejia-Aguilar’s sentence is AFFIRMED.




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