USA v. Armando Garcia-Garcia
UNPUBLISHED OPINION FILED. [15-10876 Affirmed] Judge: PEH, Judge: ECP, Judge: CH. Mandate pull date is 02/02/2017 for Appellant Armando Garcia-Garcia [15-10876]
Date Filed: 01/12/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
January 12, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-49-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Armando Garcia-Garcia pleaded guilty to illegal reentry, in violation of
8 U.S.C. § 1326(b), and the district court varied below the advisory guidelines
range and sentenced him to 41 months in prison. Although Garcia-Garcia
challenged in the district court the application of a 16-level “crime of violence”
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2014) based on his prior Texas
drug conviction, he raises a new argument on appeal.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 01/12/2017
Garcia-Garcia argues that his prior conviction for possession with intent
to deliver a controlled substance under Texas Health & Safety Code Annotated
§ 481.112(a) does not qualify as an enumerated crime of violence, a “drug
trafficking offense” as defined in § 2L1.2, comment. (n.(1)(b)(iv)) (2014).
Although Garcia-Garcia asserts that United States v. Ford, 509 F.3d 714, 71718 (5th Cir. 2007), is not controlling, he believes that he cannot show plain
error because this court has not yet limited Ford. He raises the issue to
preserve review and argues that, because the error affects his substantial
rights, this court should exercise discretion to reverse the error.
Because this issue is raised for the first time on appeal, we review for
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). Neither
this court nor the Supreme Court has addressed this issue, which is subject to
reasonable dispute. A claim subject to reasonable dispute cannot succeed on
plain error review. Puckett, 556 U.S. at 135; United States v. Fields, 777 F.3d
799, 802 (5th Cir. 2015).
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