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No Need to Look Beyond Guidelines for 'Conspiracy' Definition

By Robyn Hagan Cain on November 05, 2012 | Last updated on March 21, 2019

Jesus Rodriguez-Escareno pleaded guilty to illegal reentry following a deportation. He had earlier been convicted of conspiracy to distribute methamphetamine. At his sentencing for illegal reentry, the district court increased his sentence because it considered his earlier crime to be a "drug trafficking offense," which permitted a 16-level enhancement under the Sentencing Guidelines. Rodriguez-Escareno received a 48-month prison sentence.

Rodriguez-Escareno didn't object to the Presentencing Report application of the Sentencing Guidelines. On appeal, however, he argued the enhancement was improper. The Fifth Circuit Court of Appeals, reviewing for plain error, affirmed the sentence.

The district court applied the 16-level enhancement applicable to a prior conviction for a drug trafficking conspiracy. Rodriguez-Escareno argued that the sentencing enhancement should only be used for a "conspiracy" that requires an overt act, while his meth distribution conviction didn't satisfy that requirement. The Fifth Circuit concluded that the enhancement was validly applied, finding there was no error, plain or otherwise.

The analytical route Rodriguez-Escareno proposed applies to deciding whether a defendant's prior state conviction was for an offense enumerated in the Guidelines. To determine whether a 21 U.S.C. 846 "conspiracy" may be used for this enhancement, Rodriguez-Escareno argued that the appellate court should examine "the Model Penal Code, treatises, federal and state law, dictionaries, and the Uniform Code of Military Justice" for a conspiracy definition. The meaning "generally corresponds" to the definition in a majority of the states' criminal codes.

In 2010, the Fifth Circuit held that "most jurisdictions" require proof of an overt act to establish a conspiracy. A conspiracy under Section 846, though, does not require that an overt act occur. Consequently, Rodriguez-Escareno claimed that his conspiracy conviction could not support the enhancement.

The argument would have been logical if the court had accepted the premise that the enhancement required the court to look for the meaning of the offense outside of the Guidelines; that was not the case here.

The appellate court noted that there was no reason to search outside the Guidelines for a definition of "conspiracy" applicable to this enhancement because Application Note 5 is a clear statement by the Sentencing Commission that the enhancement applies to conspiracies to commit federal drug trafficking offenses.

The Fifth Circuit concluded that the Guidelines themselves -- reasonably interpreted -- provide a federal drug trafficking conviction will qualify for the enhancement, and so will the federal crime of conspiring to commit such an offense. Accordingly, the court affirmed Rodriquez-Escareno's sentence.

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