United States v. Alberto Rocha-Martinez , 521 F. App'x 340 ( 2013 )


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  •      Case: 12-41085       Document: 00512257041         Page: 1     Date Filed: 05/30/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 30, 2013
    No. 12-41085
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    ALBERTO ROCHA-MARTINEZ,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:12-CR-396-1
    Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
    PER CURIAM:*
    Raising two claims of error that he concedes are foreclosed, Alberto
    Rocha-Martinez appeals the 84-month sentence imposed following his guilty plea
    conviction for illegal reentry of a deported alien. The Government has filed an
    unopposed motion for summary affirmance or, in the alternative, for an
    extension of time to file a brief.
    In his first claim, Rocha-Martinez contends that the district court erred by
    assessing a 16-level “drug trafficking” enhancement under United States
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41085     Document: 00512257041      Page: 2   Date Filed: 05/30/2013
    No. 12-41085
    Sentencing Guideline § 2L1.2(b)(1)(A)(i), based on his prior federal conviction for
    conspiracy to possess marijuana with intent to distribute. He argues that a
    conspiracy conviction such as his prior conviction, which has been obtained
    pursuant to 
    21 U.S.C. § 846
    , does not require proof of an overt act and thus does
    not meet the generic, contemporary definition of conspiracy for purposes of
    applying the § 2L1.2(b)(1)(A)(i) enhancement. As the parties concede, this issue
    is foreclosed by United States v. Rodriguez-Escareno, 
    700 F.3d 751
    , 753-55 (5th
    Cir. 2012), cert. denied, 
    2013 WL 1313840
     (Apr. 29, 2013) (No. 12-9483).
    In his second claim, Rocha-Martinez contends that the district court erred
    in not awarding an additional one-level reduction of his offense level for
    acceptance of responsibility under United States Sentencing Guideline
    § 3E1.1(b) when the Government declined to move for the reduction after he
    refused to sign a plea agreement containing an appeal waiver. As the parties
    concede, this issue is likewise foreclosed. See United States v. Newson, 
    515 F.3d 374
    , 376-79 (5th Cir. 2008).
    In light of the foregoing, the Government’s motion for summary affirmance
    is GRANTED, its alternative motion for an extension of time to file a brief is
    DENIED, and the judgment of the district court is AFFIRMED.
    2
    

Document Info

Docket Number: 12-41085

Citation Numbers: 521 F. App'x 340

Judges: Davis, Jolly, Per Curiam, Reavley

Filed Date: 5/30/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023