     Case: 12-41222       Document: 00512331914           Page: 1    Date Filed: 08/05/2013




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

                                                                              FILED
                                                                            August 5, 2013
                                     No. 12-41222
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE FERNANDEZ-RUBIO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-535-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Fernandez-Rubio appeals the 46-month sentence imposed following
his guilty-plea conviction for being unlawfully present in the United States
after having previously been deported. He argues that the district court erred
when it characterized his prior conviction for conspiracy involving the
importation of cocaine as a drug trafficking offense and increasing his offense
level pursuant to U.S.S.G. § 2L1.2(b)(1)(A).

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-41222     Document: 00512331914     Page: 2   Date Filed: 08/05/2013

                                 No. 12-41222

      According to Fernandez-Rubio, his conspiracy conviction is not a drug
trafficking offense because, unlike the generic, contemporary definition of
conspiracy, the federal drug conspiracy under 21 U.S.C. § 846, of which he was
convicted does not require proof of an overt act in furtherance of the conspiracy.
He concedes, however, that his argument is foreclosed by United States v.
Rodriguez-Escareno, 700 F.3d 751, 753-54 (5th Cir. 2012), cert. denied, 2013 WL
1313840 (Apr. 29, 2013) (No. 12-9483).
      In Rodriguez-Escareno, we concluded that a reasonable interpretation of
the Guidelines provides that conspiring to commit a federal drug trafficking
offense qualifies for the § 2L1.2(b)(1)(A)(i) enhancement. 700 F.3d at 753-54.
Accordingly, Fernandez-Rubio’s motion for summary disposition is GRANTED,
and the judgment of the district court is AFFIRMED.




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