     Case: 13-41038      Document: 00513105775         Page: 1    Date Filed: 07/07/2015




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

                                    No. 13-41038                                 FILED
                                  Summary Calendar                            July 7, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

ELMER GODOY-CASTANEDA,

                                                 Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             U.S.D.C. No. 7:13-CV-902


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Elmer Godoy-Castaneda pleaded guilty to being unlawfully
present in the United States following deportation. Godoy-Castaneda appeals
his sentence, arguing that the district court incorrectly concluded that his prior
conviction in New York for conspiracy in the second degree and solicitation in
the second degree relating to second-degree murder was a crime of violence
under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines Manual
(“U.S.S.G.” or the “Guidelines”). We AFFIRM the district court’s judgment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41038
                                               I.
        Godoy-Castaneda was charged with being unlawfully present in the
United States after deportation in violation of 8 U.S.C. § 1326(a) and (b).
Godoy-Castaneda pleaded guilty to the charge without a plea agreement.
        The presentence report (“PSR”) concluded that Godoy-Castaneda had a
total offense level of 22 and a criminal history category of IV, applying a 16-
level       enhancement      for   a   crime    of   violence    pursuant     to   U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The enhancement was based upon Godoy-Castaneda’s
previous conviction in New York state for five counts of second-degree
conspiracy and five counts of second-degree solicitation in connection with a
second-degree murder. 1 With an additional one-level reduction for acceptance
of responsibility, the Guidelines range became 57 to 71 months.                      Godoy-
Castaneda objected to the 16-level crime of violence enhancement only on the
following grounds: (1) that solicitation is not listed in the application notes to
§ 2L1.2 and (2) that the definition of “conspiracy” under New York law does
not fit within the generic, contemporary meaning of “conspiracy.”
        The district court overruled Godoy-Castaneda’s objections and sentenced
Godoy to 57 months. Godoy-Castaneda timely appealed.
                                               II.
        Where a sentencing error is preserved, we review a district court’s
interpretation or application of the Guidelines de novo and its factual findings
for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008) (citation omitted). If the defendant fails to preserve an error, we review
only for plain error. United States v. Chavez-Hernandez, 671 F.3d 494, 497
(5th Cir. 2012). “Plain error review requires four determinations: whether
there was error at all; whether it was plain or obvious; whether the defendant


        1   Godoy-Castaneda pleaded guilty to all ten counts of the New York indictment.
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                                 No. 13-41038
has been substantially harmed by the error; and whether this court should
exercise its discretion to correct the error in order to prevent a manifest
miscarriage of justice.” Id.
      On appeal, Godoy-Castaneda argues for the first time that the district
court erred in applying the 16-level enhancement because neither conspiracy
in the second degree nor solicitation in the second degree under New York law
qualifies as a crime of violence. Godoy-Castaneda further argues that the
district court plainly erred in finding that the underlying offense, second-
degree murder under New York law, qualifies as “murder” under § 2L1.2.
Reviewing for plain error, we disagree.
      Under the Guidelines, a defendant convicted of illegal reentry is subject
to a 16-level sentencing enhancement if he was deported following a prior
conviction for a crime of violence. See § 2L1.2(b)(1)(A)(ii). The Application
Notes define a “crime of violence” in two ways: first, as one of several
enumerated offenses, including murder and conspiracy, and, second, as “any
other offense under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” § 2L1.2, comment n.1(B)(iii). This court applies “slightly different
methodologies to determine whether a prior conviction constitutes a crime of
violence under each respective definition.” United States v. Herrera-Alvarez,
753 F.3d 132, 137 (5th Cir. 2014). Both methodologies are “iterations of the
elements-based categorical approach.” Id. For the enumerated offenses, “we
conduct a ‘common-sense’ categorical approach, looking to various sources—
such as ‘the Model Penal Code, the LaFave and Scott treatises, modern state
codes, and dictionary definitions’—to define each crime by its ‘generic,
contemporary meaning.’” Id. (quoting United States v. Moreno-Florean, 542
F.3d 445, 449 (5th Cir. 2008)); see also United States v. Rodriguez, 711 F.3d
541, 552 n.17 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013). For the
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second category, “we analyze whether the offense has as an element the use,
attempted use, or threatened use of physical force.” Herrera-Alvarez, 753 F.3d
at 137. Under this provision, force “must rise to the level of ‘destructive or
violent force’; mere ‘offensive touching’ with a deadly weapon is insufficient.”
Id. (quoting United States v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007)).
“Under both approaches, we determine the elements to which a defendant
pleaded guilty by analyzing the statutory definition of the offense, not the
defendant’s underlying conduct.” Id. at 137–38 (citing Descamps v. United
States, 133 S. Ct. 2276, 2281 (2013)).
      We first consider whether the underlying offense, second-degree murder,
constitutes a crime of violence. See United States v. Ellis, 564 F.3d 370, 372
(5th Cir. 2009) (considering first whether the crime underlying defendant’s
“attempt” conviction would constitute a crime of violence). Murder is one of
the enumerated offenses in comment 1(B)(iii) of U.S.S.G. § 2L1.2. We therefore
consider whether New York’s statute is consistent with the generic,
contemporary meaning of murder. See Rodriguez, 711 F.3d at 549.
      Under New York Penal Law § 125.25, a person is guilty of murder in the
second degree, a Class A felony, when:
      1. With intent to cause the death of another person, he causes the
         death of such person or of a third person . . . ; or
      ...
      3. . . . he commits or attempts to commit robbery, burglary,
      kidnapping, arson, rape in the first degree, criminal sexual act in
      the first degree, sexual abuse in the first degree, aggravated sexual
      abuse, escape in the first degree, or escape in the second degree,
      and, in the course of and in furtherance of such crime or of
      immediate flight therefrom, he, or another participant, if there be
      any, causes the death of a person other than one of the
      participants . . . ;
      ....
N.Y. PENAL LAW § 125.25(1),(3).


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      Godoy-Castaneda contends that the third subsection of the statute is
broader than the contemporary, generic meaning of murder. Though LaFave
and the Model Penal Code recognize felony murder, Godoy-Castaneda argues
that the third subsection does not necessarily involve conduct that is
“dangerous to life.” See 2 W.R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 14.5(b)
(2d ed. 2003) (noting that for felony murder, the “felony attempted or
committed by the defendant must be dangerous to life”). For example, under
New York law, a person is guilty of sexual abuse in the first degree if he
“subjects another person to sexual contact . . . [b]y forcible compulsion.” N.Y.
PENAL LAW § 130.65.       Godoy-Castaneda contends that a person could be
convicted of second-degree murder in New York for touching another person’s
leg, which is “sexual contact” by “forcible compulsion,” and, when running
away, that person knocks a third person down, causing that person’s death.
Godoy-Castaneda argues that this hypothetical is far from the dangerous
felonies required by the Model Penal Code.
      Godoy-Castaneda points to no New York case employing such a far-
fetched approach. See United States v. Teran-Salas, 767 F.3d 453, 460 (5th
Cir. 2014) (requiring a “realistic probability, not a theoretical possibility, that
the State would apply its statute to conduct that falls outside the generic
definition of a crime” (internal quotation marks and citations omitted)), cert.
denied, 135 S. Ct. 1892 (2015).       Even putting that aside and assuming
arguendo that Godoy-Castaneda is correct that New York’s second-degree
murder statute is broader than the enumerated offense of murder, where a
divisible statute has some sections that qualify as a crime of violence and some
that do not, we apply the “modified categorical approach”:
      Under the modified categorical approach, we may consult a limited
      class of documents, such as indictments and jury instructions, to
      determine which alternative formed the basis of the defendant’s
      prior conviction. The court can then do what the categorical
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                                No. 13-41038
      approach demands: compare the elements of the crime of
      conviction (including the alternative element used in the case)
      with the elements of the generic crime, or, as the case may be,
      assess whether the crime of conviction has as an element the use,
      attempted use, or threatened use of physical force. Those records
      are generally limited to . . . the charging document, written plea
      agreement, transcript of plea colloquy, and any explicit factual
      finding by the trial judge to which the defendant assented. By
      reviewing the extra-statutory materials approved in those cases,
      courts c[an] discover ‘which statutory phrase’ contained within a
      statute listing ‘several different’ crimes, ‘covered a prior
      conviction.’
Herrera-Alvarez, 753 F.3d at 138 (internal citations and quotation marks
omitted); see also Shepard v. United States, 544 U.S. 13, 16 (2005) (holding
that, under the modified categorical approach, courts are “generally limited to
examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented”).
      Godoy-Castaneda’s indictment and judgment do not explicitly identify
the statutory subsection for the underlying offense of second-degree murder.
For the five conspiracy counts, the indictment states that Godoy-Castaneda
acted “with intent that conduct constituting the crime of Murder in the Second
degree . . . be performed [and] agreed with one or more persons to engage in or
cause the performance of such conduct.” Similarly, with respect to the five
solicitation counts, the indictment states that Godoy-Castaneda “did solicit,
request, command, importune, or otherwise attempted to cause such person”
to “engage in conduct constituting the crime of Murder in the Second Degree.”
However, in the description of the overt acts associated with the conspiracy,
the indictment alleges that Godoy-Castaneda, with his co-conspirators, paid a
third party to “fund the murders,” met with the third party to identify the
“intended murder target,” and provided a photograph of the “intended murder

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                                       No. 13-41038
target.” Godoy-Castaneda pleaded guilty to all of the counts of the indictment.
The language in the indictment indicates that the underlying second-degree
murder fell within the first subsection, as Godoy-Castaneda solicited a third
party and conspired with others to cause the death of a person with the intent
to cause the death of that person. See N.Y. PENAL LAW § 125.25(1). The first
subsection of the second-degree murder statute is within the generic,
contemporary meaning of murder.
       Godoy-Castaneda did not object to the enhancement on this basis before
the district court. Thus, we review this issue for plain error only. Chavez-
Hernandez, 671 F.3d at 497. To demonstrate plain error, a defendant must
show a forfeited error that is, inter alia, clear or obvious. See Puckett v. United
States, 556 U.S. 129, 135 (2009). In light of the record, which shows that the
indictment to which he pleaded guilty alleges that Godoy-Castaneda, with
others, identified the murder target and paid another person to carry out the
murder, the implicit conclusion that § 125.25(1) is the statute of conviction and
application of the enhancement on this basis is not clear or obvious error.
       Next, we turn to the crimes of conviction.                  Godoy-Castaneda was
convicted of conspiracy in the second degree and solicitation in the second
degree for his role in the second-degree murder. It is not clear that Godoy-
Castaneda preserved the arguments as to solicitation. 2 As we conclude that
solicitation supports the “crime of violence” enhancement even under a less
deferential review standard, we do not decide the standard of review and we


       2  In the district court, Godoy-Castaneda objected to the enhancement with respect to
his solicitation conviction on the basis that solicitation was not an enumerated offense. He
did not argue before the district court that solicitation is not a crime of violence because it
follows a unilateral approach. However, he did make that argument with respect to the use
of his conspiracy convictions. As the substance of the “unilateral” argument was before the
district court, one could argue that the error was preserved. See United States v. Rodriguez,
523 F.3d 519, 522, 526 & n.1 (5th Cir. 2008) (applying ordinary standard of review where
substance of the defendant’s arguments was before the district court).
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do not decide whether conspiracy in the second degree under New York law
constitutes a crime of violence.
       Under New York state law, “[a] person is guilty of criminal solicitation
in the second degree when, with intent that another person engage in conduct
constituting a class A felony, he solicits, requests, commands, importunes or
otherwise attempts to cause such other person to engage in such conduct.” N.Y.
PENAL LAW § 100.10. Godoy-Castaneda contends that the crime of conspiracy
under New York law does not constitute a “crime of violence” because New
York’s solicitation statute is similar to its conspiracy statute, and federal law
does not recognize a unilateral conspiracy (such as conspiring with an
undercover government agent).
       We rejected this reasoning in United States v. Mendez-Casarez, 624 F.3d
233, 240 (5th Cir. 2010), abrogated on other grounds by Rodriguez, 711 F.3d
541. 3 In Mendez-Casarez, we considered whether a North Carolina solicitation
statute could be a “crime of violence” even though solicitation is not one of the
enumerated crimes. To this end, we compared “the mens rea (mental state)
and actus reus (action or conduct) of the prior offense to those of conspiracy,
aiding and abetting, and attempt” to determine whether the prior offense is
“clearly less serious” than the enumerated offense. Id. at 238; see also Mejia-
Aguilar, 575 F. App’x at 237 (applying the same methodology to determine
whether solicitation under Arizona law is a crime of violence). Upon comparing



       3 Rodriguez only abrogated 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 treatises—when deriving the generic, contemporary
meaning of an undefined offense category in a federal sentencing enhancement.” United
States v. Mejia-Aguilar, 575 F. App’x 233, 237 (5th Cir. 2014) (unpublished) (emphasis in
original) (quotation marks and citations omitted). “The continued vitality of [Mendez-
Casarez] was otherwise unaffected by Rodriguez.” Id. Even if we employed the Rodriguez
methodology, the outcome would be the same, as New York’s solicitation statute is consistent
with “the generic, dictionary meaning of ‘solicitation.’” Id. at 238.
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the North Carolina statute to the “generic, contemporary meaning” of
conspiracy, we found that the “mens rea and actus reus of solicitation [under
North Carolina law] are not clearly less serious than those of conspiracy.”
Mendez-Casarez, 624 F.3d at 239. First, North Carolina’s solicitation statute
required the same mens rea as conspiracy: “the defendant must intend that
the underlying crime be committed.” Id. Second, “both offenses involve the
defendant taking a step, whether agreeing or soliciting, towards fulfilling his
intention that the crime be committed.” Id. at 240. Moreover, the fact that
solicitation did not require an overt act, whereas conspiracy statutes often
require an overt act, did not render solicitation “clearly less serious” than
conspiracy. Id. In reaching the conclusion, we explicitly rejected the argument
“that the response of the other person determines the seriousness of the acts
of soliciting or agreeing.” Id.
      The New York statute here is similar to the North Carolina statute. Like
the North Carolina law, the New York solicitation statute requires proof that
the defendant intended that the underlying crime be committed (the mens rea)
and that the defendant “solicits, requests, commands, importunes or otherwise
attempts to cause [another] person to engage in such conduct” (the actus reus).
N.Y. PENAL LAW § 100.10; People v. Cheatham, 239 A.D.2d 595, 596 (N.Y. App.
Div. 1997). As we have previously found that it is the act of the defendant, and
not the other person, that determines the seriousness of the act of soliciting,
we reject Godoy-Castaneda’s argument that solicitation cannot be a crime of
violence because it is unilateral. We conclude that Godoy-Castaneda fails to
show reversible error in the district court’s conclusion that conviction for
solicitation in the second degree based on the underlying crime of second-
degree murder under New York law constitutes a crime of violence for the
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
      AFFIRMED.
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