519 F. App'x 264

UNITED STATES of America, Plaintiff-Appellee v. Sixto CORTINAS-ALDAPE, Defendant-Appellant.

No. 12-40109

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 1, 2013.

Paula Camille Offenhauser, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM: *

Sixto Cortinas-Aldape pleaded guilty to being found unlawfully present in the United States following deportation after conviction of an aggravated felony and was sentenced to 57 months in prison to be followed by a two-year term of supervised release.

*265For the first time on appeal, Cortinas-Aldape argues that his sentence was improperly enhanced by 16 levels under United States Sentencing Guidelines § 2L1.2(b)(l)(A)(I) based on his prior federal conviction for conspiracy to possess with intent to distribute cocaine. He maintains that because his prior conspiracy conviction under 21 U.S.C. § 846 does not require an overt act, the prior conviction does not comport with the generic, contemporary meaning of conspiracy, and the prior conviction should not have been used as a basis for the 16-level enhancement.

We review Cortinas-Aldape’s arguments for plain error. See United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir.2012). The prior conviction used to support the enhancement in this case was based on 21 U.S.C. §§ 846 and 841. In considering whether a prior federal conviction for conspiracy to commit a drug trafficking offense will justify an enhancement under § 2L1.2(b)(l)(A)(I), we need look no further than the federal Sentencing Guidelines. Id. at 753-54. We have held in this situation that the “Guidelines themselves, reasonably interpreted,” support the enhancement. Id. at 754. Accordingly, the district court in this case did not err, plain or otherwise, in applying the enhancement. Id. at 754-55.

AFFIRMED.

United States v. Cortinas-Aldape
519 F. App'x 264

Case Details

Name
United States v. Cortinas-Aldape
Decision Date
May 1, 2013
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519 F. App'x 264

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United States

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