Case: 12-40951 Document: 00512297397 Page: 1 Date Filed: 07/05/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 5, 2013
No. 12-40951
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARMANDO ORTEGA-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1317-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Armando Ortega-Garcia (Ortega) appeals the 37-month sentence imposed
following his guilty plea conviction of being illegally present in the United States
following deportation. He contends that the district court erred in enhancing his
offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). Specifically, Ortega argues
that his drug conspiracy conviction under 21 U.S.C. § 846 does not fit within the
generic, contemporary meaning of “conspiracy,” and thus does not warrant the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40951 Document: 00512297397 Page: 2 Date Filed: 07/05/2013
No. 12-40951
16-level enhancement under § 2L1.2(b)(1)(A)(i), because the conviction did not
require proof of an overt act.
As Ortega concedes, the issue he raises is foreclosed by United States v.
Rodriguez-Escareno, 700 F.3d 751, 754 (5th Cir. 2012), cert. denied, 2013 WL
1313840 (Apr. 29, 2013) (No. 12-9483). In Rodriguez-Escareno, we determined
that the § 2L1.2(b)(1)(A)(i) enhancement applies to the federal crime of
conspiring to commit a drug trafficking offense. Id.
Accordingly, the motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.
2