USA v. Orlando Garcia-Lopez, No. 11-40912 (5th Cir. 2013)
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Case: 11-40912 Document: 00512199115 Page: 1 Date Filed: 04/05/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-40912 Summary Calendar April 5, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. ORLANDO GARCIA-LOPEZ, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-545-1 Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM:* Orlando Garcia-Lopez pleaded guilty to being found in the United States after a prior deportation and was sentenced to 37 months of imprisonment and three years of supervised release. 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 under 21 U.S.C. § 846 for conspiracy to possess cocaine with intent to distribute. He maintains that because a conspiracy conviction under § 846 does not require any overt act, it is not 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40912 Document: 00512199115 Page: 2 Date Filed: 04/05/2013 No. 11-40912 conspiracy within the generic, contemporary meaning of the word, and it therefore cannot support the enhancement. We review Garcia-Lopez s arguments only for plain error. See United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012). Garcia-Lopez s arguments are foreclosed by this court s recent decision in Rodriguez-Escareno, where we considered the question whether a prior conviction under § 846 could be used to enhance a sentence for illegal reentry under § 2L1.2(b)(1)(A)(i). 700 F.3d at 753. In that case, this court considered the language of the Guidelines and the relevant Application Notes and held that the Guidelines themselves, reasonably interpreted, provide that the federal crime of conspiring to commit a drug offense will qualify for the enhancement. Id. at 754. Thus, there is no reason to search outside the Guidelines for a definition of conspiracy applicable to this enhancement. Id. at 754. Accordingly, the district court did not err in applying the enhancement. Id. at 754-55. AFFIRMED. 2
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