     Case: 11-41063   Document: 00512028940     Page: 1   Date Filed: 10/23/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                  October 23, 2012

                                   No. 11-41063                    Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee
v.

JESUS RODRIGUEZ-ESCARENO,

                                             Defendant-Appellant



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


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        The defendant pled guilty to illegal reentry following a deportation. He
had earlier been convicted of a conspiracy to distribute methamphetamine. At
his sentencing for illegal reentry, the district court increased his sentence
because it considered his earlier crime to be a “drug trafficking offense” as that
term is defined by the Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(i).
The defendant did not object. On appeal, he argues the enhancement was
improper. Under plain-error review, we agree. We VACATE and REMAND.
                      FACTUAL & PROCEDURAL HISTORY
        In April 2011, Texas authorities stopped a vehicle for exceeding the speed
limit. One of the passengers was Jesus Rodriguez-Escareno, who was in the
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                                  No. 11-41063

United States illegally after having been deported in 2006. He was detained.
Subsequently, a grand jury in the United States District Court for the Southern
District of Texas returned a one-count indictment against him for being found
in the United States illegally following a deportation. See 8 U.S.C. § 1326. He
pled guilty.
      A Presentence Investigation Report (“PSR”) was prepared. Using the
Sentencing Guidelines, the PSR calculated that the base offense level was 8.
The criminal history section of the PSR listed a 2001 conviction in the United
States District Court for the Southern District of Iowa of conspiracy to distribute
methamphetamine. The judgment stated that Rodriguez-Escareno had been
charged under 21 U.S.C. §§ 846 and 841(b)(1)(B). Section 846 provides the same
penalty for a conspiracy to commit one of the drug offenses listed in that chapter
as for the underlying offense. The PSR determined that Rodriguez-Escareno’s
previous crime was a “drug trafficking offense,” which permitted the application
of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i). The offense
level was reduced because he accepted responsibility for his illegal reentry. The
PSR calculated a sentencing range of 41 to 51 months of imprisonment.
Rodriguez-Escareno did not object to these calculations, and the district court
adopted the PSR. Rodriguez-Escareno received a 48-month prison sentence. On
appeal, he challenges only his sentence.
                                 DISCUSSION
      Rodriguez-Escareno did not object to the application of the Sentencing
Guidelines. Consequently, we review only for plain error. United States v.
Gonzales, 642 F.3d 504, 505 (5th Cir. 2011). Plain error exists when “(1) there
was an error; (2) the error was clear and obvious; and (3) the error affected the
defendant’s substantial rights.” United States v. Guerrero-Robledo, 565 F.3d 940,
942 (5th Cir. 2009) (quotation marks and citation omitted). If all three elements
are proved, we have “the discretion to remedy the error – discretion which ought

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to be exercised only if the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Escalante-Reyes, 689
F.3d 415, 419 (5th Cir. 2012) (en banc) (quotation and citation omitted).
      The issue in this case is whether a conspiracy conviction under 21 U.S.C.
§ 846 satisfies the requirements for the 16-level enhancement.               The
enhancement is for “conspiring” to commit an offense, but we must decide
whether the elements of a Section 846 conspiracy are consistent with the
meaning of “conspiring” in Application Note 5 of U.S.S.G. § 2L1.2(b)(1)(A)(i).
This question has not been squarely decided in this circuit.
      The district court implicitly held there was a sufficient similarity when it
applied the 16-level enhancement. Rodriguez-Escareno argues that was plainly
erroneous because a violation of Section 846 does not require the government to
prove that an overt act occurred in furtherance of the conspiracy, but the general
usage of the word “conspiracy” carries that requirement. We look for meaning
in two sources: definitions contained within the Guidelines itself and the word’s
“generic, contemporary meaning.” See United States v. Sanchez, 667 F.3d 555,
560 (5th Cir. 2012); see also United States v. Vargas-Duran, 356 F.3d 598, 602
(5th Cir. 2004) (en banc).
      Because the Guidelines do not define “conspiracy,” we seek the term’s
generic, contemporary meaning. Sanchez, 667 F.3d at 560. That meaning can
be revealed by “the Model Penal Code, treatises, federal and state law,
dictionaries, and the Uniform Code of Military Justice.” United States v.
Santiesteban-Hernandez, 469 F.3d 376, 379 (5th Cir. 2006). The meaning
“generally corresponds to the definition in a majority of the States’ criminal
codes.” United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008).
      A leading legal dictionary defines “conspiracy” to require “(in most states)
action or conduct that furthers the agreement.” Black’s Law Dictionary 329 (9th
ed. 2009). A leading legal treatise agrees that is the majority view. 2 Walter R.

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LaFave, Substantive Criminal Law § 12.2 (2d ed. 2003). We too have found that
“most jurisdictions” require proof of an overt act to establish a conspiracy.
United States v. Mendez-Casarez, 624 F.3d 233, 240 (5th Cir. 2010). In a
concurring opinion, Judge Higginbotham explained that the weight of authority
shows the general meaning “includes a requirement that at least one of the
conspirators take an overt act in furtherance of the agreement.” United States
v. Gore, 636 F.3d 728, 745 (5th Cir. 2011) (Higginbotham, J., concurring).
      We conclude from these sources that the generic, contemporary meaning
of the word “conspiracy” contains an overt-act requirement. It has been settled
since 1994 that Section 846 does not require that an overt act occur. United
States v. Shabani, 513 U.S. 10, 13-14 (1994). It follows that the “conspiring” in
Application Note 5 of Section 2L1.2(b)(1)(A)(i) of the Guidelines does not reach
judgments of conviction of a conspiracy under Section 846.
      The government concedes that a Section 846 conspiracy is not one that fits
the generic, contemporary meaning of a conspiracy. It nonetheless argues that
use of the enhancement was not erroneous. Its novel argument is that the
meaning of a statutory term in a defendant’s prior conviction under a federal
criminal statute – or at least under Section 846 – should be deemed to be
consistent with the meaning of the same term in the federal Guidelines.            A
term’s generic, contemporary meaning should not matter when we are concerned
with a prior federal conviction of the relevant crime. It is true that the caselaw
in this area is primarily concerned with matching terms in state criminal
statutes to the relevant term in the Guidelines. Still, there is no hint in the
caselaw that different rules apply when the prior conviction is a federal one.
Our conclusion remains that the enhancement was error.
      We have found an erroneous application of the Guidelines. It must then
also be shown that the error was obvious. Guerrero-Robledo, 565 F.3d at 942.
For an error to be of that character, its existence cannot be subject to reasonable

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dispute. Puckett v. United States, 556 U.S. 129, 135 (2009). Although many
issues of first impression can be reasonably debated, decisions on issues of first
impression may be clearly wrong. United States v. Spruill, 292 F.3d 207, 215
n.10 (5th Cir. 2002); accord United States v. Burroughs, 613 F.3d 233, 244 (D.C.
Cir. 2010). A sentencing question of first impression may have an answer that
“clearly and plainly follows from the terms of [the Guidelines], the wording of the
. . . statute and the indictment, and our jurisprudence.” United States v.
Insaulgarat, 378 F.3d 456, 471 (5th Cir. 2004).
      By following the proper analytical path of examining a legal dictionary or
leading treatise and applying our precedents, the error here clearly appears. Cf.
United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010). The government has
not even argued that the generic, contemporary meaning of conspiracy omits an
overt-act requirement. No precedent supports the district court’s interpretation
of “conspiracy” as not requiring an overt act. The error was plain.
      We next consider whether this obvious error affected Rodriguez-Escareno’s
substantial rights.    Rodriguez-Escareno must “demonstrate that the error
affected the outcome of the district court proceedings.” Escalante-Reyes, 689
F.3d at 424 (quotation marks and citation omitted). We examine “whether the
error increased the term of a sentence, such that there is a reasonable
probability of a lower sentence on remand.” Id. (quotation marks and citation
omitted). That standard has been met here.
      Properly calculated under the Guidelines, the sentencing range should
have been 15 to 21 months. This is a substantial difference from the 41 to 51
months determined by the district court. There is a reasonable probability that
because of the erroneous 16-level enhancement, Rodriguez-Escareno received a
sentence of 48 months, well above the correct Guidelines range.            Similar
circumstances have been found to affect a defendant’s substantial rights. E.g.,
United States v. Garza-Lopez, 410 F.3d 268, 273, 275 (5th Cir. 2005). As in this

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case, the district court in Garza-Lopez improperly applied a 16-level
enhancement for a drug trafficking offense. We held that the error affected his
substantial rights.   Id. at 275. Rodriguez-Escareno’s substantial rights also
were affected by this plain error.
      Because the three requirements to establish plain error have been met, we
have discretion to reverse if the error affected “the fairness, integrity or public
reputation of his sentencing proceedings.” Escalante-Reyes, 689 F.3d at 425.
      The plain error in applying the “drug trafficking offense” enhancement
resulted in a Guidelines range of 41 to 51 months and an actual sentence of 48
months. The correctly calculated Guidelines range was 15 to 21 months. We
have previously exercised our discretion to vacate a sentence when the error in
the application of the Guidelines resulted in a range that was significantly
higher than the correctly calculated Guidelines range. See, e.g., United States
v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (per curiam). We are convinced
here that this error, which caused a sentence to be more than three times the
low end of the Guideline range, “seriously affects the fairness, integrity, or public
reputation of his sentencing proceedings.”
      Accordingly, we VACATE the sentence and REMAND for re-sentencing.




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