USA v. Jose Castro-Najera

Filing

UNPUBLISHED OPINION FILED. [13-20023 Affirmed ] Judge: TMR , Judge: JLD , Judge: LHS Mandate pull date is 02/02/2015 for Appellant Jose Mario Castro-Najera [13-20023]

Case: 13-20023

Document: 00512897311

Page: 1

Date Filed: 01/12/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-20023
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 12, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
JOSE MARIO CASTRO-NAJERA, also known as Jose Mario Castro Najera,
also known as Jose Mario Castro, also known as Mario Castro-Najera,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-351-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jose Mario Castro-Najera (Castro) appeals the 45-month belowguidelines sentence imposed following entry of his guilty plea to a charge of
illegal reentry after removal. We affirm.
Castro challenges the 16-level enhancement imposed under U.S.S.G.
§ 2L1.2(b)(1)(A)(i) based on his Texas conviction for possession of cocaine with

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20023

Document: 00512897311

Page: 2

Date Filed: 01/12/2015

No. 13-20023
intent to deliver, for which he received a sentence longer than 13 months. In
his view, the Texas conviction did not qualify as a drug trafficking offense
because Texas defines delivery more broadly than § 2L1.2’s drug trafficking
offense, given that the Texas offense of delivery may be committed by
administering a controlled substance, an act not within the purview of § 2L1.2.
He contends further that, for the same reasons, the Texas offense does not
qualify as an aggravated felony under 8 U.S.C. § 1326(b)(2).
Castro’s claims are foreclosed. See United States v. Teran-Salas, 767
F.3d 453, 460-62 (5th Cir. 2014). In Teran-Salas, we concluded that there is
no “realistic probability that Texas would prosecute [the] crime under an
‘administering’ theory in a way that does not also constitute either ‘dispensing’
or ‘distributing’ under the federal sentencing guidelines.” 767 F.3d at 460; see
id. at 458-62. Further, “[e]ven without considering the drug type or quantity,
conviction under the administer prong is not a realistic probability because no
previous Texas case has involved a conviction under this prong.” Id. at 461.
Therefore, we held that the Texas offense of possession with intent to deliver
cocaine was a drug trafficking offense under the Guidelines and an aggravated
felony under § 1326(b). Id. at 461-62 & n.5.
AFFIRMED.

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