     Case: 12-41085       Document: 00512257041         Page: 1     Date Filed: 05/30/2013




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

                                                                            FILED
                                                                           May 30, 2013
                                     No. 12-41085
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALBERTO ROCHA-MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-396-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Raising two claims of error that he concedes are foreclosed, Alberto
Rocha-Martinez appeals the 84-month sentence imposed following his guilty plea
conviction for illegal reentry of a deported alien. The Government has filed an
unopposed motion for summary affirmance or, in the alternative, for an
extension of time to file a brief.
       In his first claim, Rocha-Martinez contends that the district court erred by
assessing a 16-level “drug trafficking” enhancement under United States

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41085     Document: 00512257041      Page: 2   Date Filed: 05/30/2013

                                  No. 12-41085

Sentencing Guideline § 2L1.2(b)(1)(A)(i), based on his prior federal conviction for
conspiracy to possess marijuana with intent to distribute. He argues that a
conspiracy conviction such as his prior conviction, which has been obtained
pursuant to 21 U.S.C. § 846, does not require proof of an overt act and thus does
not meet the generic, contemporary definition of conspiracy for purposes of
applying the § 2L1.2(b)(1)(A)(i) enhancement. As the parties concede, this issue
is foreclosed by United States v. Rodriguez-Escareno, 700 F.3d 751, 753-55 (5th
Cir. 2012), cert. denied, 2013 WL 1313840 (Apr. 29, 2013) (No. 12-9483).
      In his second claim, Rocha-Martinez contends that the district court erred
in not awarding an additional one-level reduction of his offense level for
acceptance of responsibility under United States Sentencing Guideline
§ 3E1.1(b) when the Government declined to move for the reduction after he
refused to sign a plea agreement containing an appeal waiver. As the parties
concede, this issue is likewise foreclosed. See United States v. Newson, 515 F.3d
374, 376-79 (5th Cir. 2008).
      In light of the foregoing, the Government’s motion for summary affirmance
is GRANTED, its alternative motion for an extension of time to file a brief is
DENIED, and the judgment of the district court is AFFIRMED.




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