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A recent decision of the U.S. Court of Appeals for the Fifth Circuit raised some eyebrows in Federal criminal law circles.  In the case of U.S. v. Rodriguez – Escareno, ___F.3d___, 2012 WL5200190 (5th Cir. Oct. 23, 2012)  the Court vacated and remanded for resentencing,  on a plain error standard, where the District Court imposed a 16 level enhancement for defendant’s previous conviction for a “drug trafficking offense.”

Mr. Rodriguez – Escareno was indicted by a federal Grand Jury for the crime of  Illegal Reentry, and he plead guilty to the charge.  In the Federal system, when an indicted person pleads guilty, a Presentence Investigation Report (PSR)  is prepared.  One of the matters that the PSR addresses is the existence of prior convictions.  Mr. Rosdriguez – Escareno was previously convicted of a conspiracy to distribute methamphetamine. The PSR determined that Rodriguez-Escareno’s previous crime was a “drug trafficking offense,” which permitted the application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i).  On the surface, it seems obvious that a drug conspiracy withing the meaning of the Federal criminal statute will be considered a drug trafficking offense within the meaning of the U.S. Sentencing Guidelines; at least that is what everyone in Mr. Rodriguez – Escareno’s case appeared to believe.

That section of the Guidelines permits a so called enhancement of 16 points to a present sentence if a person was previously  convicted of a “drug trafficking offense.”  It appeared to the District Court that the previous conviction of conspiracy to distribute methamphetamine was a drug trafficking offense ( and apparently it also appeared that way to defense counsel since no objection to the enhancement was made) and thus imposed the enhancement.

The Fifth Circuit held that the term conspiracy or conspiring, under the Federal statute criminalizing drug conspiracies, does not require an overt act.   Conversely, the meaning of the term conspiring included in the Guidelines section under which the defendant was sentenced does require an overt act.  Therefore, Mr. Rodriguez – Escareno’s prior drug conspiracy conviction was not a drug trafficking offense within the meaning of the U.S. Sentencing Guidelines.

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