USA v. Juan Giron-Guerrero


UNPUBLISHED OPINION FILED. [14-40233 Affirmed ] Judge: TMR , Judge: JLD , Judge: LHS Mandate pull date is 01/12/2015 for Appellant Juan Giron-Guerrero [14-40233]

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Case: 14-40233 Document: 00512879303 Page: 1 Date Filed: 12/22/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-40233 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 22, 2014 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. JUAN GIRON-GUERRERO, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:13-CR-786-1 Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Juan Giron-Guerrero (Giron) pleaded guilty to being found unlawfully present in the United States following a prior deportation that was subsequent to a conviction for an aggravated felony, and he was sentenced to 36 months of imprisonment. Giron appeals the district court’s determination that his prior Texas conviction for possession with intent to deliver a controlled substance qualified as a drug trafficking offense warranting a 16-level enhancement 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 14-40233 Document: 00512879303 Page: 2 Date Filed: 12/22/2014 No. 14-40233 pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). He argues that the Texas statute criminalizes the “administering” of drugs, which is not covered by the Guideline. Because Giron preserved this argument in the district court, our review is de novo. See United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013). Giron has failed to show that there is a realistic possibility that a person either would be prosecuted for “administering” methamphetamine as that term is defined under the Texas statute or could “administer” methamphetamine in a manner that did not also constitute “dispensing” or “distributing” under the Guidelines. See United States v. Teran-Salas, 767 F.3d 453, 460-62 (5th Cir. 2014). Moreover, he has identified no prior Texas case applying the statute in an “administering” situation. See id. at 460-61. A theoretical possibility that a statute might encompass types of conduct that would not qualify as a drug trafficking offense is insufficient. See United States v. Carrasco-Tercero, 745 F.3d 192, 197-98 (5th Cir. 2014). Thus, the district court was correct in determining that Giron’s conviction was a drug trafficking offense for purposes of the § 2L1.2(b)(1)(A)(i) enhancement. See Teran-Salas, 767 F.3d at 461-62 & n.5. Accordingly, the judgment of the district court is AFFIRMED. 2

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