United States v. George Caldera ( 2020 )

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opinion should not be published and is not precedent except under the limited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, 492 F.3d
306, 313 (5th Cir. 2007). In any, event, he shows no error, plain or otherwise.
In United States v. Lightbourn, 115 F.3d 291, 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.” Id. at 294.
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, 24 F.3d 698 (5th Cir. 1994), superseded by Sentencing
Guideline amendments as stated in Lightbourn, 115 F.3d at 293-94.
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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, 698 F.3d 227, 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 Lightbourn,
115 F.3d at 293-94. 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, 596 F.3d 251, 254-55 (5th Cir. 2010).
AFFIRMED.
3