USA v. Jose De La Cruz-Gutierrez

Filing

UNPUBLISHED OPINION FILED. [13-41255 Affirmed ] Judge: WED , Judge: CH , Judge: GJC. Mandate pull date is 08/05/2015 for Appellant Jose Manuel De La Cruz-Gutierrez [13-41255]

Case: 13-41255

Document: 00513116945

Page: 1

Date Filed: 07/15/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41255
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 15, 2015

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
JOSE MANUEL DE LA CRUZ-GUTIERREZ, also known as Victor Taveras,
also known as Jose Manuel Taveras De La Cruz-Gutierrez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-1247-1
Before DAVIS, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Manuel De La Cruz-Gutierrez (De La Cruz) appeals the 46-month
sentence of imprisonment imposed following his guilty plea to being an alien
illegally present in the United States following deportation. 8 U.S.C. § 1326(a)
and (b). He contends that the district court erroneously applied a 16-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his prior

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41255

Document: 00513116945

Page: 2

Date Filed: 07/15/2015

No. 13-41255
Pennsylvania conviction of manufacturing, delivering, or possessing with the
intent to manufacture or deliver cocaine.
De La Cruz first argues that the Pennsylvania statutory provision under
which he was convicted does not constitute a “drug trafficking offense” under
§ 2L1.2 because it criminalizes the distribution of cocaine without
remuneration. We recently rejected the same argument in United States v.
Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir. 2015).
De La Cruz also argues that Pennsylvania delivery does not qualify as a
§ 2L1.2 drug trafficking offense because a conviction under the state statute
could rest upon administering a narcotic, an act not included in the Guidelines
offense. In United States v. Teran-Salas, 767 F.3d 453, 460 (5th Cir. 2014),
cert. denied, 135 S. Ct. 1892 (2015), we required “a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that
falls outside the generic definition of a crime.” De La Cruz argues only that
the available state documents do not preclude the possibility that his
conviction was for administering or possessing with the intent to administer.
He presents no situation in a case or his own case in which Pennsylvania courts
have construed the Pennsylvania statute in such a way. As in Teran-Salas,
this theoretical possibility is insufficient to show error in the application of the
§ 2L1.2(b)(1)(A)(i) enhancement. See Teran-Salas, 767 F.3d at 460.
AFFIRMED.

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