United States v. Garcia-Santana

The generic federal definition of conspiracy, codified at 8 U.S.C. § 1101(a)(43)(U) requires proof of an overt act.

Xochitl Garcia-Santana pled guilty to “‘conspiracy to commit [. . .] burglary’ in violation of Nev. Rev. Stat. §§ 199.480, 205.060(1).” Shortly after, Garcia-Santana was “removed as an undocumented alien ‘convicted of an aggravated felony pursuant to . . . 8 U.S.C. [§] 1227(a)(2)(A)(iii),’” and therefore was ineligible for any discretionary relief of removal. Later Garcia-Santana unlawfully reentered the United States and was taken into custody by U.S. Immigration and Customs Enforcement (“ICE”) officials. Garcia-Santana moved to dismiss the grand jury’s indictment. Garcia-Santana “argu[ed] that her previous removal order was fundamentally unfair” because the previous conviction was not an aggravated felony; and, therefore denial of discretionary relief opportunities was a violation of due process. Garcia-Santana’s motion was denied by the district court, but the order was later reconsidered and struck down. The government appealed the dismissal of the indictment. The issue before the Ninth Circuit was whether the court should “rely on a common-law, or contemporary-sources, definition of ‘conspiracy[]’” to determine if Garcia-Santana’s previous conviction was an aggravated felony. The panel used the categorical approach established in Taylor v. United States. The categorical approach determines “whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Under the categorical approach, “contemporary usage” identifies the generic definition of a term. The panel “survey[ed] the definitions codified in state and federal statutes” and found that a majority of jurisdictions require an overt act. The panel therefore determined that “the generic federal definition of conspiracy” requires proof of an overt act. Since “Nevada’s conspiracy statute criminalizes a broader range of conduct than the [. . .] generic definition of conspiracy,” the panel found that Garcia-Santana’s previous conviction was not an aggravated felony. AFFIRMED.