FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                     September 12, 2016

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-2167

JESUS DOMINGO MARTINEZ-CRUZ,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                           (D.C. No. 2:15-cr-00902-RB-2)
                       _________________________________

Caleb Kruckenberg, Assistant Federal Public Defender, Office of the Federal Public
Defender, Las Cruces, New Mexico, for Defendant-Appellant.

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United States
Attorney, with him on the brief), Office of the United States Attorney, Las Cruces, New
Mexico, for Plaintiff-Appellee.
                        _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
                 _________________________________

EBEL, Circuit Judge.
                         _________________________________

                                     INTRODUCTION

      This case involves one narrow, but complicated, issue. Jesus Domingo

Martinez-Cruz challenges the district court’s twelve-level enhancement of his
sentence under United States Sentencing Guideline (the Guidelines) § 2L1.2

Application Note 5 for his previous conviction for Conspiracy to Possess a

Controlled Substance with Intent to Distribute in Violation of 21 U.S.C. § 846.

Martinez-Cruz contends that this was error, because Application Note 5 uses the term

“conspiring” without defining it, thus the categorical approach should apply.

Because the generic definition of conspiracy requires an overt act while his

conviction under 21 U.S.C. § 846 did not, Martinez-Cruz argues, his previous

conviction is not a categorical match for the generic definition of “conspiracy” and

he should therefore receive only an eight-level enhancement for a prior aggravated

felony conviction.

      Having jurisdiction under 18 U.S.C. § 3742(a)(2), we agree with Martinez-

Cruz. We therefore REVERSE and REMAND for resentencing consistent with this

opinion.

                                 BACKGROUND FACTS

      In January 2015, United States Border Patrol agents found Jesus Domingo

Martinez-Cruz and two associates walking along Interstate-10 in New Mexico. The

men admitted that they had been carrying backpacks loaded with contraband.

Martinez-Cruz admitted that he was a Mexican citizen and did not have permission to

be in the United States. The backpacks that Martinez-Cruz and his associates were

carrying contained 69.12 kilograms of marijuana.

      Martinez-Cruz had previously been removed from the United States in

November 2014. He was removed following a federal conviction for conspiracy to

                                          2
possess with intent to distribute fifty kilograms or more of marijuana, in violation of

21 U.S.C. § 846. He was caught committing a similar act to the one at issue in this

case (i.e., illegally entering the United States and walking with associates along a

highway carrying backpacks filled with marijuana). He received an eight-month

sentence at that time.

      In this case, Martinez-Cruz pled guilty to three counts: (1) conspiracy to

possess with intent to distribute fifty kilograms or more of marijuana in violation of

21 U.S.C. § 846; (2) possession with intent to distribute fifty kilograms or more of

marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and (3) reentering the

United States after having been removed in violation of 8 U.S.C. §§ 1326(a) and (b).

      The presentence report (PSR) recommended an adjusted offense level of

sixteen for the drug counts. The PSR recommended a base level of eight for the

immigration violation, pursuant to U.S.S.G. § 2L1.2. The PSR then enhanced his

immigration offense level by twelve levels for having been previously convicted of a

felony drug trafficking conspiracy for which the penalty was less than thirteen

months’ imprisonment, pursuant to U.S.S.G. § 2L1.2(b)(1)(B) and its Application

Note 5. Martinez-Cruz objected to that enhancement, and that enhancement forms

the sole issue in this appeal. The district court overruled Martinez-Cruz’s objection

after hearing argument from both parties. After adjusting for multiple counts and

acceptance of responsibility, Martinez-Cruz’s total offense level was nineteen. With

a criminal history category of II, his advisory guideline sentencing range was 33 to

41 months in prison. The district court sentenced Martinez-Cruz to 33 months in

                                           3
prison, followed by a three-year term of supervised release. Martinez-Cruz timely

appealed.

                                  STANDARD OF REVIEW

      The Tenth Circuit reviews de novo whether a prior offense triggers a

sentencing enhancement under U.S.S.G. § 2L1.2(b). United States v. Castillo, 

, 345 (10th Cir. 2015).

                                    LEGAL DISCUSSION

      U.S.S.G. § 2L1.2(b)(1)(B), the guideline for “Unlawfully Entering or

Remaining in the United States,” imposes an additional twelve-level enhancement if

the defendant had “a conviction for a felony drug trafficking offense for which the

sentence imposed was 13 months or less.” That conviction may arise from “an

offense under federal, state, or local law.” U.S.S.G. § 2L1.2 Application Note

1(B)(iv). Alternatively, the guideline imposes an eight-level enhancement if the

defendant has “a conviction for an aggravated felony.” Application Note 5 to

§ 2L1.2 states, “Prior convictions of offenses counted under subsection (b)(1) include

the offenses of aiding and abetting, conspiring, and attempting, to commit such

offenses.” (emphasis added). The Application Notes do not further define

“conspiring.”1 Therefore, this opinion will focus on the generic definition of the term

“conspiring.”

      Martinez-Cruz argues that his twelve-level enhancement was unwarranted

because, under Taylor v. United States, 

, 600-02 (1990), his prior

      1
          For ease of reading, we will refer to “conspiracy” rather than “conspiring.”
                                            4
federal conviction for Conspiracy to Possess a Controlled Substance with Intent to

Distribute in Violation of 21 U.S.C. § 846 was not categorically a “drug trafficking

offense” because conspiracy under § 846 does not require proof of an overt act—

which, Martinez-Cruz argues, is part of the generic definition of “conspiracy” to

which § 2L1.2 Application Note 5 refers.2

      However, this is an unsettled issue in the Tenth Circuit, and other circuits to

address the issue have disagreed with Martinez-Cruz’s proposed analysis. There are

two similar—but varying—strands of precedent on this subject in the Tenth Circuit.

This case thus presents a legal conundrum that we must resolve.

      The analysis of this issue will proceed in four parts: (1) the relevant Tenth

Circuit precedent concerning the Guidelines and categorical approach generally; (2)

Martinez-Cruz’s proposed analysis and result; (3) the government’s proposed

analysis and result (including other circuits’ analyses of this issue); and (4) why we

adopt Martinez-Cruz’s proposed analysis.

             a. Tenth Circuit precedent concerning the Guidelines and categorical
                approach

      There are two major strands of precedent in the Tenth Circuit involving the

Guidelines and categorical approach. The first emphasizes the Taylor categorical

approach, the second emphasizes the Sentencing Commission’s intent. Recent

precedent, however, focuses on the Taylor categorical approach.


      2
       Martinez-Cruz concedes that, if we find that the district court erred in
applying the twelve-level enhancement, he will still be subject to an eight-level
enhancement for his prior conviction of an aggravated felony.
                                            5
      The Tenth Circuit recently decided a case that outlines the process for

determining whether a previous federal drug conviction qualifies for enhancement

under the immigration guideline, U.S.S.G. § 2L1.2(b)(1). In United States v.

Dominguez-Rodriguez, 

, 1194 (10th Cir. 2016), the court held that

“[t]o determine whether a prior conviction qualifies as a drug trafficking offense

under § 2L1.2(b)(1)(A)(i),3 a district court must generally follow the categorical

approach adopted by the Supreme Court in Taylor v. United States, 

,

600-02 (1990).” (quotations and citations omitted, alterations in original).

      “Under th[is] categorical approach, a court does not look to the facts of the

particular case, but rather to the statute under which the defendant was convicted” to

determine if it qualifies as a drug trafficking offense under § 2L1.2(b)(1).

(quotations omitted, alterations in original).

Even though an offense may have “the same label . . . as an enumerated offense listed

in the Guidelines definition,” that by itself “does not automatically warrant

application of the enhancement.” 

(quotations omitted). Instead, the court

assumes that an enumerated offense in the Guidelines “refers to the generic,

contemporary meaning of the offense.” 

categorical approach, we

must ensure that the elements of that generic enumerated offense are congruent with

the elements of the defendant’s prior offense.” 

citations omitted).


      3
        Our case here involves U.S.S.G. § 2L1.2(b)(1)(B) instead of subsection
(b)(1)(A) (at issue in Dominguez-Rodriguez), but those subsections are the same for
the purposes of this appeal (the only difference between those two subsections is how
long the defendant had been sentenced for the previous crime).
                                           6
      To determine the “generic, contemporary meaning” of a crime enumerated in

the Guidelines, the court begins “by looking to the federal statute under which [the

defendant] was previously convicted.” 

(also noting that “the federal

statute is one source of the generic[] contemporary meaning” for a crime). The court

also examines whether the statute of conviction “roughly corresponds to the

definitions of the crime in a majority of the States’ criminal codes, as well as

prominent secondary sources, such as criminal law treatises and the Model Penal

Code.” United States v. Garcia-Caraveo, 

, 1233 (10th Cir. 2009)

(addressing state law convictions) (citations and alterations omitted); see

(noting that the court did not look to

sources beyond federal law when reviewing a federal conviction because the

appellant did not argue that other sources were relevant when determining the generic

definition of a crime). Here, our focus is on the word “conspiring” and its generic

definition because Martinez-Cruz’s prior conviction under 21 U.S.C. § 846 was for

conspiracy to possess with intent to distribute controlled substances, rather than just

possession with intent to distribute.

      Although Martinez-Cruz’s conviction was federal and the Guidelines are also

federal, we must include state law in the generic crime analysis because the

Guidelines uniformly count convictions “under federal, state, or local law.” U.S.S.G.

§ 2L1.2 Application Note 1(B)(iv). Considering all sources of conspiracy law in the

inquiry of the nature of a previous conviction—even for a prior federal conspiracy

conviction—will ensure that different conspiracy convictions are not treated

                                           7
differently. Similarly, we focus on the word “conspiring” in its general sense and not

specifically “conspiracy to possess with intent to distribute controlled substances”

because the term “conspiring” in U.S.S.G. § 2L1.2 Application Note 5 applies to a

wide range of crimes beyond just drug trafficking (including “aggravated felony” and

“any other felony”).

       We also acknowledge prior Tenth Circuit law holding that, “Ultimately, our

task in interpreting the Guidelines is to determine the intent of the Sentencing

Commission.” United States v. Rivera-Oros, 

, 1129 (10th Cir. 2009).

The Tenth Circuit interprets the Guidelines “as though they were a statute or court

rule” and assumes that the Sentencing Commission “adopts uniform judicial

interpretations given a particular word, phrase, or provision.” United States v.

O’Flanagan, 

, 1235 (10th Cir. 2003) (citations and quotations omitted).

“Where the language of the Guidelines is clear and unambiguous, it must be followed

except in the most extraordinary situation where [it] leads to an absurd result contrary

to clear legislative intent.” United States v. Holbert, 

, 1260 (10th Cir.

2002) (quotations and citations omitted). Within § 2L1.2 there are examples of when

the Sentencing Commission clearly intended that the analysis stop at a federal statute.

As just one of several examples, Application Note 1(B)(v) specifically defines

“firearm offense” to cover violations of 18 U.S.C. §§ 921, 841(c), 844(h), 924(c), and

929(a). But this narrow approach is not available to us because the reference to

“conspiracy” in § 2L1.2 Application Note 5 is not narrowed nor defined by reference

to any particular federal statutes.

                                           8
      Following the prescribed process in our precedent of Dominguez-Rodriguez is

supportive of Martinez-Cruz’s position. But, other circuits have suggested that the

Sentencing Commission intended that § 2L1.2 Application Note 5 include federal

conspiracy convictions under 21 U.S.C. § 846. However, because we find that the

intent of the Sentencing Commission is not clear, we adopt Martinez-Cruz’s

arguments and follow prior Tenth Circuit precedent in Dominguez-Rodriguez in

applying the categorical approach.

             b. Martinez-Cruz’s conviction does not match the generic definition of
                “conspiracy”

      First, Martinez-Cruz argues that his conviction is not a categorical match for

the generic definition of “conspiracy” enumerated in U.S.S.G. § 2L1.2 Application

Note 5 because the generic definition of conspiracy requires an overt act whereas the

statute he had previously been convicted of—21 U.S.C. § 846—has been held not to

require proof of an overt act for a conspiracy conviction. United States v. Shabani,

(1994) (holding that, in the context of a conspiracy conviction under

§ 846, “the Government need not prove the commission of any overt acts in

furtherance of the conspiracy”).4

      Second, Martinez-Cruz points to the Ninth Circuit case of United States v.

Garcia-Santana, 

(9th Cir. 2014), which surveyed the states, Model

Penal Code (MPC), criminal law treatises, and federal law to determine the generic


      4
        To avoid Constitutional problems, the Court held that although “the law does
not punish criminal thoughts, in a criminal conspiracy the criminal agreement itself is
the actus reus.” 

(emphasis in original).
                                           9
definition of conspiracy. The Ninth Circuit first cited Taylor for the proposition that

“[t]he generic definition of an offense roughly correspond[s] to the definitions of [the

offense] in a majority of the States’ criminal codes.” 

(citing 

). Then, the Ninth Circuit noted that “A survey of

state conspiracy statutes reveals that the vast majority demand an overt act to sustain

conviction. By our count, thirty-six states do so; if the District of Columbia, Guam,

Puerto Rico, and the Virgin Islands are included, then the tally rises to forty of fifty-

four jurisdictions.” 

These state statutes, it should be noted, were

general conspiracy statutes—i.e., they applied generally to all crimes within the state.

Circuit, in Garcia-Santana, also noted that the federal government’s

general conspiracy statute (18 U.S.C. § 371) requires an overt act and major treatises

support an overt act requirement for conspiracy convictions. 

Thus, the

Ninth Circuit held that the generic definition of conspiracy requires an overt act. 

The Ninth Circuit’s survey of the law is persuasive.

             c. The government proposes that the Panel should not apply the
                categorical approach and argues that generic conspiracy does not
                require an overt act

      The government makes two arguments: (1) that we should not apply the

categorical approach here at all; and (2) if we apply the categorical approach, we

should hold that the generic definition of conspiracy does not require an overt act. In

support, the government cites to several cases from other circuits. Although case law



                                           10
from other circuits has persuasive weight, the analyses in the government’s cited

cases do not persuade us because they offer little supportive analysis.

      In the first case, United States v. Pascacio-Rodriguez, 

(5th Cir.

2014), the Fifth Circuit held that a prior conviction for conspiracy to commit murder

did not require proof of an overt act to qualify for a sentencing enhancement under

Application Note 5 of U.S.S.G. § 2L1.2 (the same Application Note and Guidelines

section at issue in this case). But in that case, the Fifth Circuit was unclear whether it

needed to apply the categorical approach to “conspiracy” in the Guidelines at all:

      It is not clear, however, whether this court’s precedent requires that we
      apply the categorical approach in discerning the elements of a
      conspiracy, as that term is used in § 2L1.2(b)(1)(A)(ii). . . . For us,
      nonetheless, 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.

      The Fifth Circuit performed the generic-crime analysis anyway. It held that

the generic crime of conspiracy did not require an overt act and there may not even

be a generic definition of “conspiracy” because thirty-four states require an overt act,

but sixteen do not—and many federal statutes do not. 

The Fifth

Circuit counted twenty-four federal statutes that require an overt act and one hundred

and forty-two that do not.5


      5
        It should be noted that while some of the statutes not requiring overt acts are
major federal statutes, including RICO and conspiracy to commit wire/mail fraud,
many of the statutes reach very narrow behavior. 

. For instance, some of the federal statutes that do not require an overt act for a
                                           11
      The government in our case relies on this analysis for its argument that the

generic definition of conspiracy does not require an overt act. But the Fifth Circuit

focused on “conspiracy to commit murder” specifically, did not give much weight to

the primary federal general conspiracy statute under 18 U.S.C. § 371, and did not

give much weight to the more than 2:1 ratio of states that require an overt act for

conspiracy. 

see also United States v. Martinez-Lugo, 

, 202

(5th Cir. 2015) (holding that the Taylor categorical approach requires courts to look

to “state and federal statutes, the Model Penal Code, respected treatises, and

dictionaries”).

      The Fifth Circuit concluded that “there is 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”

because Application Note 5 does not draw a distinction between state and federal

crimes. 

. And it is true that U.S.S.G. § 2L1.2,

Application Note 1(B)(iv) seeks to reach all offenses “under federal, state, or local

law.” But by holding the way it did, the Fifth Circuit may have actually created a


conspiracy conviction include such crimes as “conspiracy to falsely represent oneself
as the registrant of five or more Internet Protocol addresses and to initiate
commercial electronic mail messages from those addresses” (18 U.S.C.
§ 1037(a)(5)), “conspiracy to furnish facilities or privileges to ships or persons
contrary to a presidential proclamation,” (15 U.S.C. § 77), “conspiracy to damage or
interfere with the operations of an animal enterprise by property damage” (18 U.S.C.
§ 43(a)(2)(A)), “conspiracy to violate provisions regulating helium gas,” (50 U.S.C.
§ 167k), and “conspiracy to violate statutory provisions or regulations related to Iran
freedom and counterproliferation,” (22 U.S.C. § 8809(b)). Therefore, a simple
balancing of federal conspiracy statutes is not very helpful.
                                          12
distinction between state and federal law rather than avoiding it. Because the

Guidelines does not define “conspiracy,” a state conspiracy conviction would also be

subject to the categorical approach. Under that approach, the generic definition of

“conspiracy,” as noted by the Ninth Circuit in 

,

requires proof of an overt act. Therefore, under the Fifth Circuit’s approach, state

conspiracy convictions and federal conspiracy convictions would be treated

differently—state conspiracy convictions would require an overt act to qualify for

enhancement under U.S.S.G. § 2L1.2 and federal conspiracy convictions would not.

      In the second case, United States v. Rivera-Constantino, 

(9th Cir.

2015), the Ninth Circuit decided whether a conspiracy conviction under § 846

qualified for enhancement under U.S.S.G. § 2L1.2 (the exact same issue as this case).

The Ninth Circuit acknowledged its previous opinion in Garcia-Santana regarding the

generic definition of conspiracy, but held that it was not applicable because “the clear

intent of the Sentencing Commission in drafting section 2L1.2 and its accompanying

commentary was to encompass a prior federal drug conspiracy conviction under 21

U.S.C. § 846.” 

In so finding, the Ninth Circuit argued it followed

“traditional rules of statutory construction,” because the “plain meaning of [the]

term” conspiring “is readily apparent form the text, context, and structure of the

relevant Guidelines provision and commentary.” 

Therefore, the generic

definition analysis was inapplicable. But the Ninth Circuit, in Rivera-Constantino,

never pointed to anything beyond assumptions about the Sentencing Commission’s

intent to establish this “plain meaning.”

                                            13
       For instance, as Judge Paez pointed out in his dissent in Rivera-Constantino,

Congress never provided a clear definition of conspiracy—different federal crimes

have different elements. 

The majority responded to this argument by

stating:

       But at least with regards to federal drug trafficking conspiracies,
       Congress surely has provided a single, clear definition: the one
       articulated in 21 U.S.C. § 846. This, we conclude, was overwhelmingly
       likely to have been the meaning intended by the Sentencing
       Commission, notwithstanding the generic meaning of the word
       “conspiracy” as used in other contexts.

However, in addition to the obvious omission of 18 U.S.C. § 3716—the

general federal conspiracy statute that includes drug crimes as well as non-drug

federal crimes and which requires proof of an overt act—the word “conspiring” in

Application Note 5 of § 2L1.2 does not refer to just federal drug trafficking crimes.

The word “conspiring” applies to all of the crimes listed in § 2L1.2, including any

felony, state, or local felony or aggravated felony, some of which require proof of an

overt act. Judge Paez also argued that the majority “sidestep[ped]” the applicable

Taylor categorical approach. 

Judge Paez noted that the majority

“disregards [the Ninth Circuit’s] established rule” of applying the categorical

approach to determine whether a prior conviction satisfies the requirements of a

§ 2L1.2 enhancement. 

       6
        The text of 18 U.S.C. § 371 requires an overt act: “If two or more persons
conspire either to commit any offense against the United States, or to defraud the
United States, or any agency thereof in any manner or for any purpose, and one or
more of such persons do any act to effect the object of the conspiracy, each shall be
fined under this title or imprisoned not more than five years, or both.” (emphasis
added).
                                          14
      In the government’s third case, United States v. Sanbria-Bueno, 549 F. App’x

434 (6th Cir. 2013) (unpublished), the Sixth Circuit used logic similar to the Ninth

Circuit to conclude that it did not have to apply the categorical approach to a

conspiracy conviction under § 846. The Sixth Circuit held that “the [Sentencing]

Commission’s intent is clear,” because “[t]he Commission expressly intended that a

conviction under 21 U.S.C. § 846 for conspiracy to commit a federal drug offense

proscribed by § 841 is a ‘drug trafficking offense’ as defined in the Guidelines.” 

But the Sixth Circuit—same as the Ninth and Fifth—went no further in its

analysis than proclaiming that it was “clear” that conspiracy convictions under § 846

qualify for enhancement under § 2L1.2.

      The problem with all three of these cases is that, if the Sentencing Commission

“expressly intended” § 846 conspiracy convictions to qualify for enhancement under

U.S.S.G. § 2L1.2, the Sentencing Commission could have stated so expressly—i.e.,

clearly. For instance, U.S.S.G. § 2L1.2 Application Note 5 could have stated that

“The term ‘conspiring’ includes, but is not limited to, conspiracy convictions under

21 U.S.C. § 846.”7 Or it could have simply included a parenthetical after the word

conspiring—e.g., “conspiring (whether or not an overt act was required).” But the

Sentencing Commission did neither and instead provided a generic, undefined word




      7
        As noted above, the Sentencing Commission made its intent clear by
referencing specific federal statutes in several instances. For instance, Application
Note 1(B)(v) to § 2L1.2 defines “Firearms offense” with reference to 18 U.S.C.
§§ 921, 841(c), 844(h), 924(c), and 929(a).
                                          15
ripe for the categorical approach. Therefore, we find the government’s cited cases to

be unpersuasive.

             d. Martinez-Cruz’s proposed analysis should control

      As discussed above, Martinez-Cruz’s analysis arrives at the logical result

through the prescribed legal process. The term “conspiring” is not defined in § 2L1.2

or its application notes, including Application Note 5. The Tenth Circuit applies the

categorical approach to generic, undefined terms in the Guidelines. See Dominguez-

. We find the analysis of the generic definition of

“conspiracy” in Garcia-Santana persuasive. It omitted a discussion of the many

federal conspiracy statutes, but federal conspiracy statutes support both requiring and

not requiring an overt act.

      The number of federal statutes allowing for conspiracy convictions without

proof of an overt act is much larger than those requiring an overt act, but that by

itself is not dispositive because of the narrow nature of many of the federal statutes—

here, we are defining conspiracy generally (the states also define conspiracy

generally). Of the federal statutes which could have applied to Martinez-Cruz’s

conviction, the broadest federal conspiracy statute, § 371, requires proof of an overt

act—while the drug statute, § 846, does not. And while the common law of

conspiracy did not require an overt act, as noted in Garcia-Santana, most jurisdictions

have jettisoned that doctrine. Under the categorical approach, we look to the law’s




                                           16
current state. See 

(holding that courts

should look to “the generic, contemporary meaning of the offense”).8

       Therefore, we conclude that the generic definition of “conspiracy” requires an

overt act. Section 846 does not. See 

. Martinez-Cruz’s

conspiracy conviction under § 846 is a categorical mismatch for the generic

definition of “conspiracy” in U.S.S.G. § 2L1.2 Application Note 5 and he should

receive an eight-level enhancement instead of twelve.9 The other circuits to decide

this issue held the opposite, that the categorical approach should not apply. But the

Fifth Circuit, Sixth Circuit, and Ninth Circuit (in Rivera-Constantino) divined the

intent of the Sentencing Commission without offering any evidence of that intent.

And while the Sentencing Commission’s intent is still relevant in the Tenth Circuit,

we find no evidence of its intent regarding whether a conspiracy conviction requires

an overt act—except for the plain language of the guideline, which uses a generic,

undefined term, ripe for the categorical approach.10



      8
         If we were to hold that the weight of federal statutes not requiring an overt
act tipped the scale into equipoise with the weight of state statutes requiring an overt
act, we would still find for Martinez-Cruz under the rule of lenity. See United States
v. Wilson, 

, 736 (10th Cir. 1993) (“The rule of lenity applies where a
statute is facially ambiguous and resort to the legislative history does not reveal the
congressional intent of the language. Under these circumstances, courts construe the
statute favorably to the criminal defendant. The rule applies to substantive, as well
as sentencing, statutes.”) (citations omitted).
       9
         We do not reach the modified categorical approach because 21 U.S.C. § 846
is not divisible.
       10
          We note that, if the Sentencing Commission intends for § 2L1.2 to reach all
conspiracy convictions under federal law regardless of whether an overt act is
required or not, it can amend the guidelines to state clearly that intention.
                                           17
                                       CONCLUSION

      Although it pits us against our sister circuits, we must follow binding Tenth

Circuit precedent and apply the categorical approach to a generic, undefined term in

the Guidelines. Martinez-Cruz’s prior conviction for conspiracy to possess with

intent to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C.

§ 846, is a categorical mismatch to the generic crime of “conspiracy.” We therefore

REVERSE and REMAND for resentencing consistent with this opinion.




                                          18