     Case: 12-41424   Document: 00512817858      Page: 1   Date Filed: 10/28/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 12-41424                    United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
UNITED STATES OF AMERICA,                                        October 28, 2014
                                                                   Lyle W. Cayce
             Plaintiff – Appellee,                                      Clerk

v.

FREDI J. SEGOVIA, also known as Edys Geovanny Segovia-Segovia,

             Defendant – Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Fredi J. Segovia, a citizen of El Salvador, pleaded guilty to being an alien
found unlawfully in the United States after having been previously deported,
in violation of 8 U.S.C. § 1326. The district court adopted the Presentence
Investigation Report (PSR) and sentenced Segovia to 51 months of
imprisonment, to be followed by three years of supervised release. On appeal,
Segovia contends that the district court erred by applying a sixteen-level
enhancement for a prior conviction for a crime of violence (COV). Finding no
merit in Segovia’s contentions, we affirm.
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                                       I.
      The district court’s characterization of a prior offense as a COV is a
question of law we typically review de novo. United States v. Stoker, 706 F.3d
643, 646 (5th Cir. 2013). However, because Segovia did not raise his challenge
to the sixteen-level enhancement in the district court, review is for plain error
only. See United States v. Chavez-Hernandez, 671 F.3d 494, 498–99 (5th Cir.
2012). “Plain error review requires four determinations: whether there was
error at all; whether it was plain or obvious; whether the defendant 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. at 497. Because we find no error in the district court’s ruling, we
need not proceed beyond the first step of plain error review.
                                       II.
      Section 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines
(U.S.S.G.) provides for a sixteen-level enhancement of a defendant’s base
offense level if he previously was deported after a conviction for a COV. The
district court applied this enhancement to Segovia because Segovia was
previously deported after a Maryland conviction for conspiracy to commit
robbery with a dangerous and deadly weapon. Segovia did not object to the
enhancement in the district court.
      On appeal, Segovia mounts a three-pronged attack.          First, Segovia
argues that his conspiracy conviction cannot support a COV enhancement
because conspiracy under Maryland law is broader than the generic,
contemporary meaning of “conspiracy.” Second, Segovia claims that the object
of his conspiracy, robbery with a dangerous and deadly weapon, is not a COV
because robbery under Maryland law is broader than the generic,
contemporary definition of “robbery.” Third, he contends that conspiracy is not


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a COV because the essence of conspiracy is an unlawful agreement, which does
not have as an element the use or attempted use of force.
                                             III.
       The Application Notes to the Sentencing Guidelines define a COV as (1)
any specifically enumerated offense 1 or (2) “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.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii). Application Note 5 to § 2L1.2 states that conspiracy to commit a
COV is also a COV.            Id. n.5.     However, the Guidelines do not define
“conspiracy”.     When the Guidelines do not define predicate offenses, we
typically define them with reference to their “generic, contemporary
meaning[s].” Taylor v. United States, 495 U.S. 575, 598 (1990); United States
v. Dominguez-Ochoa, 386 F.3d 639, 642 (5th Cir. 2004). If the defendant was
convicted under a state law “following the generic definition with minor
variations, or a statute narrower than the generic crime, the sentence
enhancement may be applied.” United States v. Herrera, 647 F.3d 172, 176
(5th Cir. 2011) (internal quotation marks omitted). On the other hand, “[i]f the
statute of conviction prohibits behavior that is not within the plain, ordinary
meaning of the enumerated offense, the prior offense is not a ‘crime of
violence.’” United States v. Olalde-Hernandez, 630 F.3d 372, 374 (5th Cir.
2011) (citation omitted).
                                             A.
       Segovia’s first contention is that his Maryland conspiracy conviction
cannot support a sixteen-level COV enhancement because Maryland’s


       1  The specifically enumerated offenses are: “Murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including where consent to the conduct is not given
or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or
coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate
extension of credit, [and] burglary of a dwelling . . . .” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
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definition of conspiracy is broader than the generic, contemporary meaning of
the offense.   In particular, Segovia argues that the generic definition of
conspiracy requires an overt act in furtherance of the conspiracy, but that
Maryland law does not require any overt act. Thus, according to Segovia, a
Maryland conspiracy conviction cannot support a COV enhancement under the
Guidelines.
      In United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th Cir.
2012), cert. denied, 133 S. Ct. 2044 (2013), we addressed the question of
whether a prior conviction for conspiracy to commit a federal drug trafficking
offense—which does not require an overt act in furtherance of the conspiracy—
could support a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i).
We held that, in the context of a conspiracy to commit federal drug trafficking
crimes, we need not look outside the Guidelines for a generic, contemporary
definition of a conspiracy. We reasoned that “Application Note 5 is a clear
statement by the Sentencing Commission that the enhancement applies to
conspiracies to commit federal drug trafficking offenses” and that “to search
for a generic meaning of ‘conspiracy’ by employing a doctrine generally used to
determine whether a state conviction is of an enumerated crime, would only
becloud what is clear from the Guideline itself.” Id. In so holding, we “impl[ied]
no position on the relevance of this reasoning to applying the enhancement to
convictions for conspiracies to commit state-law offenses.” Id. at 754 n.2.
      Segovia argues that the reasoning from Rodriguez-Escareno should not
apply in the context of conspiracies to commit state-law offenses. However,
after the conclusion of briefing in this case, we rejected arguments identical to
those pressed by Segovia. See United States v. Pascacio-Rodriguez, 749 F.3d
353, 358–68 (5th Cir. 2014). In Pasacio-Rodriguez, we confronted the question
of whether a Nevada conviction for conspiracy to commit murder constituted a
COV for purposes of the § 2L1.2(b)(1)(A)(ii) enhancement.           Nevada, like
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Maryland, does not require proof of an overt act to support a conspiracy
conviction. Although we acknowledged that Rodriguez-Escareno’s holding was
limited to federal drug trafficking offenses, we found “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.” Pasacio-Rodriguez, 749 F.3d at 367. Because the text of
Application Note 5 does not draw any distinction between federal and state
crimes, it “does not reasonably permit courts to draw such a distinction.” Id.
Thus, we held that the Sentencing Commission did not “intend[] ‘conspiracy’
within the meaning of Application Note 5 to require an overt act as an element
of each and every conspiracy offense.” Id.
      In light of Pasacio-Rodriguez, we reject Segovia’s argument that a
Maryland conspiracy conviction cannot support a COV enhancement.
                                         B.
      Segovia’s second contention is that the object of his conspiracy, robbery
with a dangerous and deadly weapon, is not a COV because the Maryland
definition of robbery is broader than the generic, contemporary definition of
robbery. In particular, Segovia claims that generic robbery only encompasses
theft of property, but that Maryland’s robbery statute criminalizes theft of
services. See Md. Code Ann., Criminal Law § 3-401(e) (West 2002) (“‘Robbery’
retains its judicially determined meaning except that: (1) robbery includes
obtaining the service of another by force or threat of force . . . .”). Thus, Segovia
argues, his Maryland robbery conviction is not an enumerated offense under
§ 2L1.2. See Olalde-Hernandez, 630 F.3d at 374 (“If the statute of conviction
prohibits behavior that is not within the plain, ordinary meaning of the




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                                  No. 12-41424
enumerated offense, the prior offense is not a ‘crime of violence.’” (citation
omitted)).
      We need not address whether robbery under Maryland law is an
enumerated offense under § 2L1.2 cmt. n.1(B)(iii) because the object of
Segovia’s conspiracy, robbery with a dangerous and deadly weapon, fits
squarely within the catch-all provision for “any other offense . . . that has as
an element the use, attempted use, or threatened use of physical force against
the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Under Maryland law,
“[r]obbery with a deadly weapon requires the taking of property of any value,
by force, with a dangerous or deadly weapon.” Bellamy v. State, 119 Md. App.
296, 306, 705 A.2d 10, 15 (1998) (emphasis added); see also Coles v. State, 374
Md. 114, 123, 821 A.2d 389, 395 (2003) (“The hallmark of robbery, which
distinguishes it from theft, is the presence of force or threat of force, the latter
of which also is referred to as intimidation.”).        Because robbery with a
dangerous weapon under Maryland law requires the use of force or threatened
use of force, it is a COV regardless of whether it is an enumerated offense.
Conspiracy to commit a COV is also a COV. U.S.S.G. § 2L1.2 cmt. n.5. Thus,
Segovia’s prior conviction for conspiracy to commit robbery with a dangerous
and deadly weapon subjects him to the COV sixteen-level enhancement. The
district court did not err by applying that enhancement.
                                        C.
      Segovia’s third contention is that conspiracy to commit robbery with a
dangerous and deadly weapon does not have “as an element the use, attempted
use, or threatened use of physical force” because a defendant can be convicted
of conspiracy without ever attempting or attaining the object of the
conspiracy—i.e., without ever using force or threatening to use force. This
argument is unavailing for the reasons already stated. Application Note 5
explicitly provides that “[p]rior convictions of offenses counted under
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                                 No. 12-41424
subsection (b)(1) include the offense[] of . . . conspiring . . . to commit such
offenses.” U.S.S.G. § 2L1.2 cmt. n.5. We have already explained that robbery
with a dangerous and deadly weapon is a COV under subsection (b)(1). Thus,
a conspiracy to commit robbery with a dangerous and deadly weapon is plainly
within the Guidelines definition of a COV.
      For the foregoing reasons, we hold that the district court did not commit
error—let alone plain error—in applying the sixteen-level enhancement to
Segovia. Accordingly, we AFFIRM.




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