USA v. Jose Fernandez-Rubio


UNPUBLISHED OPINION FILED. [12-41222 Affirmed ] Judge: EHJ , Judge: JLD , Judge: CH Mandate pull date is 08/26/2013 for Appellant Jose Fernandez-Rubio; granting motion for summary affirmance filed by Appellant Mr. Jose Fernandez-Rubio [7293190-2] [12-41222]

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Case: 12-41222 Document: 00512331914 Page: 1 Date Filed: 08/05/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 5, 2013 No. 12-41222 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE FERNANDEZ-RUBIO, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:12-CR-535-1 Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* Jose Fernandez-Rubio appeals the 46-month sentence imposed following his guilty-plea conviction for being unlawfully present in the United States after having previously been deported. He argues that the district court erred when it characterized his prior conviction for conspiracy involving the importation of cocaine as a drug trafficking offense and increasing his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-41222 Document: 00512331914 Page: 2 Date Filed: 08/05/2013 No. 12-41222 According to Fernandez-Rubio, his conspiracy conviction is not a drug trafficking offense because, unlike the generic, contemporary definition of conspiracy, the federal drug conspiracy under 21 U.S.C. § 846, of which he was convicted does not require proof of an overt act in furtherance of the conspiracy. He concedes, however, that his argument is foreclosed by United States v. Rodriguez-Escareno, 700 F.3d 751, 753-54 (5th Cir. 2012), cert. denied, 2013 WL 1313840 (Apr. 29, 2013) (No. 12-9483). 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. 700 F.3d at 753-54. Accordingly, Fernandez-Rubio’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2

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