USA v. Fausto Serrano-Valoi
UNPUBLISHED OPINION FILED. [12-51224 Affirmed ] Judge: EGJ , Judge: EHJ , Judge: SAH Mandate pull date is 11/15/2013 for Appellant Fausto Serrano-Valois [12-51224]
Date Filed: 10/25/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
October 25, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:12-CR-389-1
Before JOLLY, JONES, and HIGGINSON, Circuit Judges.
Fausto Serrano-Valois (Serrano) pleaded guilty to being found in the
United States following deportation. After applying a 12-level enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(B) because of a prior conviction for drug
trafficking, the district court sentenced Serrano to a 30-month term of
imprisonment; the court did not impose a supervised release term. On appeal,
Serrano challenges the 12-level enhancement, arguing that his conviction for
conspiracy to commit a federal drug-trafficking offense under 21 U.S.C. §§ 841
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10/25/2013
and 846 cannot serve as the basis for applying an enhancement under
§ 2L1.2(b)(1)(B). According to Serrano, 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 Serrano concedes, his challenge is foreclosed by our decision in United
States v. Rodriguez-Escareno, 700 F.3d 751, 753-54 (5th Cir. 2012), cert. denied,
133 S. Ct. 2044 (2013), in which we rejected an identical challenge against a 16level enhancement under § 2L1.2(b)(1)(A)(i). Serrano raises the issue only to
preserve it for further review. In light of Rodriguez-Escareno, the district court
did not err at sentencing. Consequently, the judgment of the district court is
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