United States v. Serrano-Valois

543 F. App'x 405

Opinion

PER CURIAM:

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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)(l)(B) because of a pri- or 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 and 846 cannot serve as the basis for applying an enhancement under § 2L1.2(b)(l)(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, — U.S. -, 133 S.Ct. 2044, 185 L.Ed.2d 902 (2013), in which we rejected an identical challenge against a 16-level enhancement under § 2L1.2(b)(l)(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 AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.