Case: 12-41242 Document: 00512284961 Page: 1 Date Filed: 06/24/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 24, 2013
No. 12-41242
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PABLO SIERRA-PESINA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-184-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Pablo Sierra-Pesina appeals the 60-month sentence imposed following his
guilty-plea conviction for being unlawfully present in the United States after
having previously been deported subsequent to an aggravated felony conviction.
He argues that the district court erred in characterizing his prior conviction for
conspiracy to possess with intent to distribute marijuana as a drug trafficking
offense and increasing his offense level by 16 additional points pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41242 Document: 00512284961 Page: 2 Date Filed: 06/24/2013
No. 12-41242
Sierra-Pesina concedes that his argument that his conspiracy conviction
was not a drug trafficking offense because, unlike the Model Penal Code, the
federal conspiracy statute, 21 U.S.C. § 846, does not require an overt act, is
foreclosed by United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012).
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. Id. at 753-54.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED as unnecessary.
2