Case: 14-40018 Document: 00512907687 Page: 1 Date Filed: 01/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40018
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 20, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ELMER BANEGAS-ARIAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-651-1
Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
Elmer Banegas-Arias appeals the 36-month below-guidelines sentence
imposed following his conviction for illegal reentry into the United States. He
challenges the 16-level enhancement imposed pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(i) for having been deported after being convicted of a drug
trafficking offense. Banegas-Arias argues that his Texas conviction for
delivery of a controlled substance did not qualify as a drug trafficking offense
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40018 Document: 00512907687 Page: 2 Date Filed: 01/20/2015
No. 14-40018
because Texas’s definition of delivery is broader than the definition of a drug
trafficking offense under § 2L1.2. He asserts that the Texas offense of delivery
may be committed by “administering” a controlled substance. He further
contends that, for similar reasons, the Texas offense does not qualify as an
aggravated felony under 8 U.S.C. § 1101(a)(43). Because Banegas-Arias failed
to object to the enhancement in the district court, we review for plain error.
See United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012).
Our recent decision in United States v. Teran-Salas, 767 F.3d 453, 460-
62 (5th Cir. 2014), is dispositive here. As we explained in Teran-Salas,
“conviction under the administer prong is not a realistic probability because no
previous Texas case has involved a conviction under this prong.” Id. at 461.
The Texas offense of possession with the intent to deliver cocaine is a drug
trafficking offense under § 2L1.2 and an aggravated felony. Id. at 461-62 &
n.5.
Banegas-Arias fails to show that the district court plainly erred. See id.
Accordingly, the judgment of the district court is AFFIRMED.
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