USA v. Humberto Castro Gomez

Filing

UNPUBLISHED OPINION FILED. [14-20712 Affirmed ] Judge: EGJ , Judge: JEG , Judge: GJC Mandate pull date is 09/08/2015 for Appellant Humberto Yecid Castro Gomez; granting motion for summary affirmance filed by Appellee USA [7900054-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [7900054-3] [14-20712]

Case: 14-20712

Document: 00513157852

Page: 1

Date Filed: 08/18/2015

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

No. 14-20712
Conference Calendar

FILED
August 18, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HUMBERTO YECID CASTRO GOMEZ, also known as Humberto Yacid
Castro, also known as Humberto Castro Gomez, also known as Humberto
Yacid Castro Gomez, also known as Robert Gomez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-201-1
Before JOLLY, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Appealing the judgment in a criminal case, Humberto Yecid Castro
Gomez raises an argument that is foreclosed by United States v. Teran-Salas,
767 F.3d 453, 458-62 (5th Cir. 2014), cert. denied, 135 S. Ct. 1892 (2015). In
Teran-Salas, we determined that the appellant was not entitled to relief based
merely on the existence of a theoretical possibility that the defendant could be
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20712

Document: 00513157852

Page: 2

Date Filed: 08/18/2015

No. 14-20712
convicted under Texas Health & Safety Code § 481.112(a) for conduct that
would not qualify as a federal drug trafficking offense. See Teran-Salas, 767
F.3d at 458. Castro Gomez has not demonstrated “a realistic probability that
Texas would prosecute under an ‘administering’ theory in a way that does not
also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing
guidelines.” Id. at 461-62.
Castro Gomez also raises an argument that is foreclosed by United States
v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir. 2015), petition for cert. filed
(June 19, 2015) (No. 14-10355). In Martinez-Lugo,782 F.3d at 204-05, we held
that an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior conviction
of a drug trafficking offense is warranted regardless whether a conviction for
the prior offense required proof of remuneration or commercial activity.
The motion for summary affirmance is GRANTED, the alternative
motion for an extension of time to file a brief is DENIED, and the judgment of
the district court is AFFIRMED.

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