UNITED STATES of America, Plaintiff-Appellee v. Ramiro BASALDUA, Defendant-Appellant, 522 F. App'x 207

PER CURIAM: Ramiro Basaldua pleaded guilty to one count of conspiracy to possess five kilograms or more of cocaine with intent to distribute. After determining that Basal-dua was subject to the career offender provisions of § 4B1.1 of the United States Sentencing Guidelines, the district court sentenced him to 292 months in prison, at the bottom of the advisory guidelines range. Basaldua appeals, arguing that neither his current conviction nor his prior federal drug conspiracy conviction constitutes a controlled substance offense for purposes of § 4B1.1.

Specifically, Basaldua contends that because a federal conspiracy under 21 U.S.C. § 846 does not require proof of an overt act, it does not meet the generic definition of conspiracy. However, he asserts that his argument is foreclosed by United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 2044, 185 L.Ed.2d 902 (2013), and he has filed an unopposed motion seeking

summary disposition. As Basaldua concedes, we rejected materially indistinguishable arguments in Rodriguez-Escareno, 700 F.3d at 753-54. Although that case involved the definition of a drug trafficking offense under § 2L1.2 of the Guidelines, 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, Basaldua’s motion for

summary disposition is GRANTED. The judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.