Case: 19-50809     Document: 00515580556         Page: 1     Date Filed: 09/28/2020




              United States Court of Appeals
                   for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                  No. 19-50809
                                                                            FILED
                                                                    September 28, 2020
                                Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   George Caldera,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 7:17-CR-261-1


   Before Clement, Higginson, and Engelhardt, Circuit Judges.
   Per Curiam:*
          George Caldera pleaded guilty to one count of conspiring to possess
   with the intent to distribute 50 grams or more of actual methamphetamine
   and to one count of possessing with the intent to distribute cocaine. The
   probation officer determined that Caldera was a career offender under


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-50809        Document: 00515580556              Page: 2       Date Filed: 09/28/2020


                                          No. 19-50809

   U.S.S.G. § 4B1.1(a) on account of, as relevant here, his prior felony
   conspiracy conviction involving a controlled substance. The district court
   sentenced Caldera to an aggregate of 300 months of imprisonment and 10
   years of supervised release.
           On appeal, Caldera contends that the district court erred in using his
   prior drug conspiracy conviction to apply the career offender Guideline.
   Stated succinctly, his argument is that the Sentencing Commission
   impermissibly used the commentary to the Sentencing Guidelines to bring
   conspiracy offenses within the career offender Guideline’s definition of
   “controlled substance offense.”
           As Caldera acknowledges, plain error review applies to his challenge
   to the application of the career offender Guideline because he did not raise
   such an objection in the district court. See United States v. Dentler, 

, 313 (5th Cir. 2007). In any, event, he shows no error, plain or otherwise.
           In United States v. Lightbourn, 

, 293 (5th Cir. 1997), we
   stated that “[t]he Sentencing Commission has now lawfully included drug
   conspiracies in the category of crimes triggering classification as a career
   offender under § 4B1.1 of the Sentencing Guidelines.” We concluded that
   “the amendment to the Background Commentary of § 4B1.1 abrogates the
   concerns expressed by this court in Bellazerius 1 and allows convictions for
   drug conspiracies to be included in the determination whether career
   offender status is warranted.”

           Caldera acknowledges our holding in Lightbourn but states that there
   is a circuit split on whether convictions for drug conspiracies should qualify
   as predicate offenses for the career offender Guideline. He urges us to take
   a position contrary to that stated in Lightbourn. “It is a well-settled Fifth



           1
            United States v. Bellazerius, 

(5th Cir. 1994), superseded by Sentencing
   Guideline amendments as stated in 

.




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Case: 19-50809     Document: 00515580556           Page: 3   Date Filed: 09/28/2020


                                    No. 19-50809

   Circuit rule of orderliness that one panel of [this] court may not overturn
   another panel’s decision, absent an intervening change in the law, such as by
   a statutory amendment, or the Supreme Court, or [this] en banc court.”
   United States v. Quiroga-Hernandez, 

, 229 (5th Cir. 2012)
   (internal quotation marks and citation omitted). Under Lightbourn, which is
   still the law in this circuit, the district court did not commit any error in
   applying the career offender Guideline based on Caldera’s prior conspiracy
   conviction for an offense involving a controlled substance. See 

. Caldera’s alternative argument, i.e., that the offense of
   conspiracy under 21 U.S.C. § 846 is broader than the generic definition of
   conspiracy, is inadequately briefed and will not be considered. See United
   States v. Reagan, 

, 254-55 (5th Cir. 2010).
          AFFIRMED.




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