     Case: 11-41063      Document: 00512041037        Page: 1     Date Filed: 11/01/2012




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

                                                                            FILED
                                                                        November 1, 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 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” under a relevant
Sentencing Guideline. See U.S.S.G. § 2L1.2(b)(1)(A)(i). The defendant did not
object. On appeal, he argues the enhancement was improper. There was no
error, and we AFFIRM.1




       1
           A prior opinion was filed on October 23, 2012, but then withdrawn on October 29.
   Case: 11-41063    Document: 00512041037      Page: 2   Date Filed: 11/01/2012



                                  No. 11-41063

                    FACTUAL & PROCEDURAL HISTORY
      In April 2011, Texas authorities stopped a vehicle for exceeding the speed
limit. One of the passengers was Jesus Rodriguez-Escareno. He was later
indicted by a grand jury in the United States District Court for the Southern
District of Texas 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. Rodriguez-Escareno had been charged under 21 U.S.C. §§
846 and 841(a)(1), and 841(b)(1)(B). Section 846 provides the same penalty for
a conspiracy to commit one of the drug offenses in that subchapter as for the
underlying offense. See 21 U.S.C. § 846. 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, 484 F.3d 712, 714 (5th Cir. 2007). The first step in plain-error review
is to determine whether there was error. Id. The district court applied the 16-
level enhancement applicable to a prior conviction for a drug trafficking
conspiracy. Rodriguez-Escareno argues the sentencing enhancement can only

                                        2
   Case: 11-41063     Document: 00512041037     Page: 3   Date Filed: 11/01/2012



                                  No. 11-41063

be used for a “conspiracy” that requires an overt act, while a violation of Section
846 does not have that requirement.         We determine the enhancement was
validly applied here, and conclude there was no error, plain or otherwise.
      The analytical route Rodriguez-Escareno would have us take is one that
generally applies to deciding whether a defendant’s prior state conviction was
for an offense enumerated in the Guidelines. We begin by seeking that crime’s
“generic, contemporary meaning.” See United States v. Najera-Mendoza, 683
F.3d 627, 630 (5th Cir. 2012). To determine whether a Section 846 “conspiracy”
may be used for this enhancement, Rodriguez-Escareno argues that we should
examine “the Model Penal Code, treatises, federal and state law, dictionaries,
and the Uniform Code of Military Justice” for a definition. 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). We
have previously observed 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). A conspiracy under Section 846, though, does not require that
an overt act occur.    United States v. Shabani, 513 U.S. 10, 13-14 (1994).
Consequently, Rodriguez-Escareno argues that his conspiracy conviction cannot
support the enhancement.
      The argument is a logical one with the capacity to convince if the court
accepts its premise, namely, that the enhancement requires we find meaning for
the offense outside of the Guidelines. We do not accept the premise. The
Guidelines themselves tell us that a conviction for a conspiracy to commit a
federal drug trafficking offense will justify application of the enhancement.
      We again set out the details of the prior conviction. In 2001, Rodriguez-
Escareno was indicted for, and later pled guilty to, a conspiracy to distribute
methamphetamine, in violation of Title 21, United States Code, Sections

                                        3
   Case: 11-41063    Document: 00512041037       Page: 4   Date Filed: 11/01/2012



                                   No. 11-41063

841(a)(1), 841(b)(1)(B), and 846. Section 841 sets out the substantive crime and
the penalties. Section 846 is the statute used to charge conspiracies for drug
offenses under this part of Title 21:
            Any person who attempts or conspires to commit any offense
      defined in this subchapter shall be subject to the same penalties as
      those prescribed for the offense, the commission of which was the
      object of the attempt or conspiracy.

21 U.S.C. § 846.
      We now turn to the application of the relevant sentencing enhancement.
The route we take starts with the Guideline applicable to unlawful reentry
offenses. It provides an enhancement for certain specific offense characteristics.
“If the defendant previously was deported . . . after – (A) a conviction for a felony
that is (i) a drug trafficking offense for which the sentence imposed exceeded 13
months,” and if criminal history points were given the offense, then a 16-level
enhancement may be given. § 2L1.2(b)(1)(A)(i).
      The next step is to consider the definition of the relevant prior offense that
appears in Application Note 1 of this Guideline:
      “Drug trafficking offense” means an offense under federal, state, or
      local law that prohibits the manufacture, import, export,
      distribution, or dispensing of, or offer to sell a controlled substance
      (or a counterfeit substance) or the possession of a controlled
      substance (or a counterfeit substance) with intent to manufacture,
      import, export, distribute, or dispense.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
      Finally, the Guideline also addresses conspiracies. In Application Note 5,
it states that “convictions of offenses under subsection (b)(1) include the offenses
of aiding and abetting, conspiring, and attempting, to commit such offenses.” Id.
at cmt. n.5.
      In summary, 21 U.S.C. § 841(a)(1) is a federal drug trafficking offense as
defined in Application Note 1. Consequently, it was an offense under subsection


                                         4
   Case: 11-41063      Document: 00512041037         Page: 5    Date Filed: 11/01/2012



                                      No. 11-41063
(b)(1) of this Guideline. Conspiracies to commit offenses identified in (b)(1) are
subject to the 16-level enhancement according to Application Note 5. A charge
of conspiring to commit a Section 841 drug trafficking offense is made under
Section 846. These are the statutory sections on which Rodriguez-Escareno’s
prior conviction is based.
       There is no reason to search outside the Guidelines for a definition of
“conspiracy” applicable to this enhancement. Application Note 5 is a clear
statement by the Sentencing Commission that the enhancement applies to
conspiracies to commit federal drug trafficking offenses.2 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.
       We conclude that the Guidelines themselves, reasonably interpreted,
provide that a conviction of the federal drug trafficking offense will qualify for
the enhancement, and so will the federal crime of conspiring to commit such an
offense. Rodriguez-Escareno was subject to the enhancement.
       AFFIRMED.




       2
         We imply no position on the relevance of this reasoning to applying the enhancement
to convictions for conspiracies to commit state-law offenses.

                                             5
