Case: 12-51112       Document: 00512419254         Page: 1     Date Filed: 10/25/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 25, 2013
                                     No. 12-51112
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ANGEL MORENO-DE LA CRUZ,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 4:12-CR-316-1


Before JOLLY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jose Angel Moreno-De La Cruz (Moreno) pleaded guilty to illegal reentry
after the conviction of a felony. After applying a 16-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(i) because of a prior conviction for drug trafficking,
the district court sentenced Moreno to a 41-month term of imprisonment
followed by a three-year term of supervised release. Moreno now challenges the
16-level enhancement. Because he did not object in the district court, we review
for plain error. See United States v. Gonzales, 

, 714 (5th Cir. 2007).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51112     Document: 00512419254     Page: 2   Date Filed: 10/25/2013

                                  No. 12-51112

      Moreno argues that his conviction for conspiracy to commit a federal drug
trafficking offense under 21 U.S.C. §§ 841, 846, cannot serve as the basis for
applying an enhancement under § 2L1.2(b)(1)(A)(i). According to Moreno,
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 Moreno concedes, his challenge is foreclosed by our
decision in United States v. Rodriguez-Escareno, 

 (5th Cir. 2012),
cert. denied, 

 (2013), in which we rejected the identical argument.
Moreno raises the issue only to preserve it for further review. In light of
Rodriguez-Escareno, the district court committed no error, plain or otherwise.
The judgment of the district court is AFFIRMED.




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