United States v. Dwayne Bell

Case: 12-50557 Document: 00512196468 Page: 1 Date Filed: 04/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2013
No. 12-50557
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DWAYNE MALCOM BELL,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-379-1
Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
Dwayne Malcom Bell pleaded guilty to illegal reentry and was sentenced
to 46 months of imprisonment and three years of non-reporting supervised
release. For the first time on appeal, he argues that his offense level was
improperly enhanced under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his prior
federal conviction for conspiracy to possess with intent to distribute
phencyclidine (PCP) and marijuana. He maintains that his prior conspiracy
conviction under 21 U.S.C. § 846 did not require any overt act, that it thus is not
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50557 Document: 00512196468 Page: 2 Date Filed: 04/03/2013
No. 12-50557
a conspiracy within the generic, contemporary meaning of the word, and that it
cannot support the enhancement.
We review Bell’s arguments only for plain error. See United States v.
Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012). The prior conviction used
to support the enhancement in this case was based on § 846 and 21 U.S.C. §§ 812and 841. In considering whether a prior federal conviction for conspiracy to
commit a drug trafficking offense will justify an enhancement under
§ 2L1.2(b)(1)(A)(i), we need look no further than the federal Sentencing
Guidelines. Id. at 753-54. The “Guidelines themselves, reasonably interpreted,”
support the enhancement. Id. at 754. Accordingly, the district court did not err
in applying the enhancement. Id. at 754-55.
AFFIRMED.
2