USA v. Jose Gutierrez-Landero
UNPUBLISHED OPINION FILED. [12-41416 Affirmed ] Judge: CDK , Judge: WED , Judge: JWE Mandate pull date is 08/12/2013 for Appellant Jose Gutierrez-Landeros, granting motion for summary affirmance filed by Appellant Mr. Jose Gutierrez-Landeros [7337496-2] [12-41416]
Date Filed: 07/22/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
July 22, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-70-1
Before KING, DAVIS, and ELROD, Circuit Judges.
Jose Gutierrez-Landeros pleaded guilty to one count of possession with
intent to distribute 100 kilograms or more of marijuana. After determining
that Gutierrez-Landeros was subject to the career offender enhancements of
the Sentencing Guidelines, the district court downwardly departed and
sentenced him to 168 months of imprisonment and five years of supervised
release. Gutierrez-Landeros appeals, arguing that his prior 1988 and 1995
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Date Filed: 07/22/2013
drug conspiracy convictions do not constitute controlled substance offenses for
purposes of the career offender provisions of U.S.S.G. §§ 4B1.1 and 4B1.2.
Specifically, he contends that because a conviction for conspiracy under federal
statutory conspiracy law does not require proof of an overt act, it does not meet
the generic definition of conspiracy and does not constitute a controlled
substance offense for purposes of §§ 4B1.1 and 4B1.2.
indistinguishable arguments in United States v. Rodriguez-Escareno, 700 F.3d
751, 754 (5th Cir. 2012), cert. denied, 133 S. Ct. 2044 (2013).
Rodriguez-Escareno involved the definition of a drug trafficking offense under
U.S.S.G. § 2L1.2, we discern no reason that its analysis should not apply to the
nearly identical definition of a controlled substance offense for purposes of §
4B1.1. See, e.g., United States v. Henao-Melo, 591 F.3d 798, 803 & n.7 (5th Cir.
2009) (comparing the two definitions and noting that, given their similarities,
this court cites decisions interpreting them interchangeably).
In light of the foregoing, Gutierrez-Landeros’s unopposed motion for
summary affirmance is GRANTED. The judgment of the district court is
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