     Case: 12-41366       Document: 00512268070         Page: 1     Date Filed: 06/10/2013




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

                                                                            FILED
                                                                           June 10, 2013
                                     No. 12-41366
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAMIRO BASALDUA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-856-3


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Ramiro Basaldua pleaded guilty to one count of conspiracy to possess five
kilograms or more of cocaine with intent to distribute. After determining that
Basaldua was subject to the career offender provisions of § 4B1.1 of the United
States Sentencing Guidelines, the district court sentenced him to 292 months in
prison, at the bottom of the advisory guidelines range. Basaldua appeals,
arguing that neither his current conviction nor his prior federal drug conspiracy
conviction constitutes a controlled substance offense for purposes of § 4B1.1.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41366    Document: 00512268070     Page: 2   Date Filed: 06/10/2013

                                 No. 12-41366

Specifically, Basaldua contends that because a federal conspiracy under 21
U.S.C. § 846 does not require proof of an overt act, it does not meet the generic
definition of conspiracy. However, he asserts that his argument is foreclosed by
United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th Cir. 2012), cert.
denied, 2013 WL 1313840 (Apr. 29, 2013), and he has filed an unopposed motion
seeking summary disposition.
      As Basaldua concedes, we rejected materially indistinguishable arguments
in Rodriguez-Escareno, 700 F.3d at 753-54. Although that case involved the
definition of a drug trafficking offense under § 2L1.2 of the Guidelines, we
discern no reason that its analysis should not apply to the nearly identical
definition of a controlled substance offense for purposes of § 4B1.1. See, e.g.,
United States v. Henao-Melo, 591 F.3d 798, 803 & n.7 (5th Cir. 2009) (comparing
the two definitions and noting that, given their similarities, this court cites
decisions interpreting them interchangeably).
      In light of the foregoing, Basaldua’s motion for summary disposition is
GRANTED. The judgment of the district court is AFFIRMED.




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