     Case: 11-41221       Document: 00512199543         Page: 1     Date Filed: 04/05/2013




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

                                                                            FILED
                                                                            April 5, 2013
                                     No. 11-41221
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SALVADOR GRIMALDO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-941-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Salvador Grimaldo pled guilty to being found in the United States after a
prior deportation and was sentenced to 33 months of imprisonment. 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 marijuana. He maintains that his prior
conspiracy conviction under 21 U.S.C. § 846 did not require any overt act, that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41221    Document: 00512199543     Page: 2   Date Filed: 04/05/2013

                                 No. 11-41221

it therefore was not a conspiracy within the generic, contemporary meaning of
the word, and that it cannot support the enhancement.
      Because of the absence of an objection at sentencing, we review Grimaldo’s
arguments only for plain error. See United States v. Rodriguez-Escareno, 700
F.3d 751, 753 (5th Cir. 2012). 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.




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