     Case: 12-41242       Document: 00512284961         Page: 1     Date Filed: 06/24/2013




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

                                                                            FILED
                                                                           June 24, 2013
                                     No. 12-41242
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

PABLO SIERRA-PESINA,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-184-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Pablo Sierra-Pesina appeals the 60-month sentence imposed following his
guilty-plea conviction for being unlawfully present in the United States after
having previously been deported subsequent to an aggravated felony conviction.
He argues that the district court erred in characterizing his prior conviction for
conspiracy to possess with intent to distribute marijuana as a drug trafficking
offense and increasing his offense level by 16 additional points pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41242    Document: 00512284961     Page: 2   Date Filed: 06/24/2013

                                 No. 12-41242

      Sierra-Pesina concedes that his argument that his conspiracy conviction
was not a drug trafficking offense because, unlike the Model Penal Code, the
federal conspiracy statute, 21 U.S.C. § 846, does not require an overt act, is
foreclosed by United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012).
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. Id. at 753-54.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.                The
Government’s alternative motion for an extension of time to file a brief is
DENIED as unnecessary.




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