     Case: 12-50557       Document: 00512196468         Page: 1     Date Filed: 04/03/2013




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

                                                                            FILED
                                                                            April 3, 2013
                                     No. 12-50557
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DWAYNE MALCOM BELL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CR-379-1


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       Dwayne Malcom Bell pleaded guilty to illegal reentry and was sentenced
to 46 months of imprisonment and three years of non-reporting supervised
release. For the first time on appeal, he argues that his offense level was
improperly enhanced under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his prior
federal conviction for conspiracy to possess with intent to distribute
phencyclidine (PCP) and marijuana. He maintains that his prior conspiracy
conviction under 21 U.S.C. § 846 did not require any overt act, that it thus is not

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-50557    Document: 00512196468     Page: 2   Date Filed: 04/03/2013

                                 No. 12-50557

a conspiracy within the generic, contemporary meaning of the word, and that it
cannot support the enhancement.
      We review Bell’s arguments only for plain error. See United States v.
Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012). The prior conviction used
to support the enhancement in this case was based on § 846 and 21 U.S.C. §§ 812
and 841. In considering whether a prior federal conviction for conspiracy to
commit a drug trafficking offense will justify an enhancement under
§ 2L1.2(b)(1)(A)(i), we need look no further than the federal Sentencing
Guidelines. Id. at 753-54. The “Guidelines themselves, reasonably interpreted,”
support the enhancement. Id. at 754. Accordingly, the district court did not err
in applying the enhancement. Id. at 754-55.
      AFFIRMED.




                                       2
