USA v. Jose Moreno-De La Cruz, No. 12-51112 (5th Cir. 2013)
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Case: 12-51112 Document: 00512419254 Page: 1 Date Filed: 10/25/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-51112 Conference Calendar October 25, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE ANGEL MORENO-DE LA CRUZ, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 4:12-CR-316-1 Before JOLLY, JONES, and HIGGINSON, Circuit Judges. PER CURIAM:* Jose Angel Moreno-De La Cruz (Moreno) pleaded guilty to illegal reentry after the conviction of a felony. After applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) because of a prior conviction for drug trafficking, the district court sentenced Moreno to a 41-month term of imprisonment followed by a three-year term of supervised release. Moreno now challenges the 16-level enhancement. Because he did not object in the district court, we review for plain error. See United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51112 Document: 00512419254 Page: 2 Date Filed: 10/25/2013 No. 12-51112 Moreno argues that his conviction for conspiracy to commit a federal drug trafficking offense under 21 U.S.C. §§ 841, 846, cannot serve as the basis for applying an enhancement under § 2L1.2(b)(1)(A)(i). According to Moreno, because the Guidelines do not define conspiracy, the court must look to the generic definition of conspiracy, which requires an overt act, and § 846 does not require an overt act. As Moreno concedes, his challenge is foreclosed by our decision in United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012), cert. denied, 133 S. Ct. 2044 (2013), in which we rejected the identical argument. Moreno raises the issue only to preserve it for further review. In light of Rodriguez-Escareno, the district court committed no error, plain or otherwise. The judgment of the district court is AFFIRMED. 2
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