     Case: 12-41416       Document: 00512315872           Page: 1    Date Filed: 07/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                             July 22, 2013
                                     No. 12-41416
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE GUTIERREZ-LANDEROS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-70-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Gutierrez-Landeros pleaded guilty to one count of possession with
intent to distribute 100 kilograms or more of marijuana. After determining
that Gutierrez-Landeros was subject to the career offender enhancements of
the Sentencing Guidelines, the district court downwardly departed and
sentenced him to 168 months of imprisonment and five years of supervised
release. Gutierrez-Landeros appeals, arguing that his prior 1988 and 1995

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-41416    Document: 00512315872      Page: 2    Date Filed: 07/22/2013

                                 No. 12-41416

drug conspiracy convictions do not constitute controlled substance offenses for
purposes of the career offender provisions of U.S.S.G. §§ 4B1.1 and 4B1.2.
Specifically, he contends that because a conviction for conspiracy under federal
statutory conspiracy law does not require proof of an overt act, it does not meet
the generic definition of conspiracy and does not constitute a controlled
substance offense for purposes of §§ 4B1.1 and 4B1.2.
      As    Gutierrez-Landeros       concedes,     we      rejected    materially
indistinguishable arguments in United States v. Rodriguez-Escareno, 700 F.3d
751, 754 (5th Cir. 2012), cert. denied, 133 S. Ct. 2044 (2013).         Although
Rodriguez-Escareno involved the definition of a drug trafficking offense under
U.S.S.G. § 2L1.2, we discern no reason that its analysis should not apply to the
nearly identical definition of a controlled substance offense for purposes of §
4B1.1. See, e.g., United States v. Henao-Melo, 591 F.3d 798, 803 & n.7 (5th Cir.
2009) (comparing the two definitions and noting that, given their similarities,
this court cites decisions interpreting them interchangeably).
      In light of the foregoing, Gutierrez-Landeros’s unopposed motion for
summary affirmance is GRANTED. The judgment of the district court is
AFFIRMED.




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