Carlos Luis OCHOA, petitioner, v. UNITED STATES.Case below, 291 Fed.Appx. 265. Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.

However, pursuant to Ninth Circuit Rule 36–3, unpublished opinions issued prior to 2007 are not precedent. As such the Court has not considered this opinion because it is not treated as precedent within that Circuit.In contrast, the U.S. Court of Appeals for the Eleventh Circuit rejected a defendant's argument that based on Genoa , the district court erred in applying § 2B1.1(c)(3) at sentencing because the provision requires that all the elements of another offense be established.United States v. Ochoa , 291 Fed.Appx. 265 (11th Cir.2008), cert. denied 555 U.S. 1203, 129 S.Ct. 1393, 173 L.Ed.2d 643 (2009). Specifically, Defendant argued that Amendment 617 narrowed the application of the cross-reference provision by adding the "specifically covered" language and removing the "more aptly covered" language.Id. at 268.

”); Ralph, 2008 WL 4911151, at *2–3 (finding that the count of conviction must establish the elements of the additional offense in order for a court to apply the Section 2B1.1(c)(3) cross-reference provision); United States v. Rodriguez, 493 F.Supp.2d 833, 834–36 (W.D.Tex.2007) (same). But see United States v. Ochoa, 291 Fed.Appx. 265, 268 (11th Cir.2008) (finding that the district court's application of the Section 2B1.1(c)(3) cross reference when the count of conviction did not establish all elements of the additional offense was not plain error because there was “no controlling precedent from the Supreme Court” or the Eleventh Circuit “establish[ing] that the district court plainly erred by applying the cross reference”). The Government cites an unpublished opinion by the Fourth Circuit in support of its argument that “[t]he charging language need not specifically list out each element of the related offense for the cross reference to apply.”

"United States v. Bah, 439 F.3d 423, 427 (8th Cir. 2006) (false statement count of conviction under 18 U.S.C. § 1001 failed to allege requisite elements for offenses under 18 U.S.C. §§ 371, 1544, or 1546); see also United States v. Kim, 95 Fed. Appx. 857, 861-62, 2004 WL 729168 (9th Cir. 2004) (false statement count of conviction under 18 U.S.C. § 1001 failed to charge requisite intent for an obstruction offense under 18 U.S.C. § 1505); United States v. Rodriguez, 493 F. Supp. 2d 833, 834 (W.D. Tex. 2007) (false statement count of conviction under 18 U.S.C. § 1001 adequately alleged the offense of shielding an alien from detention in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)); but see United States v. Ochoa, 2008 WL 3972268 at 84 (11th Cir. Aug. 28, 2008) (cited and then summarily rejected Second and Eighth Circuit decisions as not controlling and insufficient to establish plain error on district court's use of cross reference). The Eighth Circuit in Bah convincingly explains this reading is consistent with the Sentencing Commission's amended language: