USA v. Miguel Sala
UNPUBLISHED OPINION FILED. [14-40235 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE. Mandate pull date is 01/08/2015 for Appellant Miguel Monjaraz Salas [14-40235]
Date Filed: 12/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
December 18, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
MIGUEL MONJARAZ SALAS,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-697-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Miguel Monjaraz Salas appeals his guilty plea conviction and sentence
for being an alien who unlawfully attempted to enter the United States after
deportation following a conviction for an aggravated felony. He argues that
the district court plainly erred in determining that his Texas conviction for
delivery of cocaine by actual transfer was a drug trafficking offense for
purposes of U.S.S.G. § 2L1.2(b)(1)(B).
He argues that the Texas statute
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 12/18/2014
criminalizes the “administering” and “dispensing” of drugs, which is not
covered by the Guidelines or 21 U.S.C. § 841(a). Because he did not present
this argument to the district court, our review is for plain error. See United
States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). To establish
plain error, Monjaraz Salas must show a forfeited error that is clear or obvious,
rather than subject to reasonable dispute, and the clear or obvious error must
have affected his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. Escalante-Reyes, 689 F.3d 415, 419-423 (5th Cir.
2012) (en banc). If he establishes that there was clear or obvious error that
affected his substantial rights, we have the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See Puckett, 556 U.S. at 135.
Monjaraz Salas has identified no prior Texas case applying the statute
in an “administering” or “dispensing” situation. See United States v. TeranSalas, 767 F.3d 453, 460-61 (5th Cir. 2014). A theoretical possibility that the
statute might encompass types of conduct that would not qualify as a drug
trafficking offense is insufficient. United States v. Carrasco-Tercero, 745 F.3d
192, 197-98 (5th Cir. 2014). Therefore, the district court did not commit plain
error in determining that Monjaraz Salas’s conviction was a drug trafficking
offense for purposes of the § 2L1.2(b)(1)(B) enhancement. See Teran-Salas, 767
F.3d at 461-62 & n.5. For the same reasons, the district court did not commit
plain error in determining that Monjaraz Salas’s Texas conviction was also an
aggravated felony under 8 U.S.C. § 1326(b). See id. at 457 n.1, 461-62 & n.5.
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