The Right Approach to the Categorical Approach

March 25, 2014
By Hanging Out with Carl Gunn


  • A recent Ninth Circuit case has held that the generic definition of “conspiracy” for purposes of applying the categorical approach to a federal enhancement statute requires both an agreement and an overt act.
  • This excludes Nevada conspiracy, because it doesn’t require an overt act.
  • The case also provides a nice guide to factors to consider in determining the generic definition of an otherwise undefined offense for purposes of applying the categorical approach.


A couple of interesting Ninth Circuit cases came down just last month and it’s been a while, so I thought I’d return to one of my favorite topics – the categorical approach. The cases that just came down are two conspiracy cases, which coincidently (or maybe not so coincidentally for those of you with inside information on how such matters work) came down the same day. One held – favorably for us – that Nevada conspiracy – which doesn’t require an overt act in furtherance of the agreement – doesn’t qualify as “conspiracy” in the definition of “aggravated felony” that gets used in immigration removal decisions and illegal reentry prosecutions. See United States v. Garcia-Santana, No. 12-10471, 2014 WL 667083 (9th Cir. Feb. 20, 2014). The other held – unfavorably for us, but with a potential silver lining – that Nevada conspiracy does qualify as a “violent felony” and “crime of violence” for purposes of the Armed Career Criminal Act and career offender guideline (when the conspiracy is to commit one of a substantive offense that qualifies), under the catch-all clause that includes any offense that “involves conduct that presents a serious potential risk of injury to another,” 18 U.S.C. § 924(e)(B)(ii); U.S.S.G. § 4B1.2(a). See United States v. Chandler, No. 12-10331, 2014 WL 644698 (9th Cir. Feb. 20, 2014).

Today I’m going to talk about just the first of these cases –Garcia-Santana. It’s of course good for its holding if your client’s prior conspiracy conviction is in a jurisdiction that doesn’t require an overt act for conspiracy. But it also provides some nice guidance in determining the generic version of the offense when the federal statutory provision in question doesn’t expressly define the offense. Here, the federal statutory provision was 8 U.S.C. § 1101(a)(43)(U), which includes in the definition of “aggravated felony” any “conspiracy” to commit one of the offenses listed in the other paragraphs of the definition. Remember that the categorical approach requires courts to compare the state offense to “the ‘generic’ federal definition of a corresponding aggravated felony,” Garcia-Santana, 2014 WL 667083, at *2 (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) and Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). And that’s a standard definition “determined by ‘the contemporary usage of the term,’” Garcia-Santana, 2014 WL 667083, at *2 (quoting Taylor v. United States, 495 U.S. 575, 592 (1990)). As applied in Garcia-Santana, this meant the court had to determine the “generic” version of “conspiracy.”

The result the Court eventually reached was that the generic definition of conspiracy is an agreement to commit a crime accompanied by an overt act in furtherance of the agreement, which excluded Nevada conspiracy because it doesn’t require the overt act. But how the court got there provides a nice guide of how to determine the generic version of an undefined offense in general. Based on Taylor and its progeny, the court looked to three things. First, the court surveyed the statutes of the various states, noted that “the vast majority” define conspiracy to require an overt act, and stated that “[s]uch a great predominance of jurisdictions [40 out of 54 in this instance] is more than sufficient to establish the generic federal definition of the crime.” Garcia-Santana, 2014 WL 667083, at *3. Second, the court looked to the general federal definition as a factor, though one that is “probative, but not independently determinative.”Garcia-Santana, 2014 WL 667083, at *3. Third, the court looked to the Model Penal Code and a well respected criminal law treatise that was cited in Taylor. Garcia-Santana, 2014 WL 667083, at *4.

So Garcia-Santana not only establishes a specific rule for conspiracy but establishes – or at least illustrates – a nice three-factor test to look to when one needs to determine the generic version of an offense for purposes of the categorical approach. You should think about using this test whenever a federal enhancement statute lists an offense without defining it and thereby requires further analysis to determine the “generic federal definition.”

More on how to use this for another inchoate offense in next week’s post.