United States v. Trinidad Jaimes-Jaimes

Case: 13-41248 Document: 00513130771 Page: 1 Date Filed: 07/27/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-41248 FILED
Summary Calendar July 27, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

TRINIDAD JAIMES-JAIMES,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-179

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Trinidad Jaimes-Jaimes appeals the sentence imposed following his
guilty plea conviction for being found unlawfully in the United States after
deportation in violation of 8 U.S.C. § 1326. He contends that the district court
plainly erred when it enhanced his sentence based on a finding that his 1996
Louisiana conviction for possession with intent to distribute marijuana was a
felony drug trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i).

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41248 Document: 00513130771 Page: 2 Date Filed: 07/27/2015

No. 13-41248

Relying on the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct.
1678 (2013), as well as our decision in United States v. Garza-Lopez, 410 F.3d
268 (5th Cir. 2005), he contends that the Louisiana statute under which he was
convicted is broader than the drug trafficking offense definition set forth in the
commentary to § 2L1.2 because it proscribes the possession with intent to give
away and administer a controlled substance. Because Jaimes-Jaimes did not
object to the § 2L1.2(b)(1)(A)(i) enhancement in the district court, we review
for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005),
superseded by regulation on other grounds as stated in United States v.
Pimpton, 558 F. App’x 335, 337-38 (5th Cir. 2013).
In United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir. 2015),
petition for cert. filed (June 24, 2015) (No. 14-10355), we held that an
enhancement under § 2L1.2(b)(1)(A)(i) is warranted regardless whether the
conviction for the prior drug trafficking offense required proof of remuneration
or commercial activity. Further, Jaimes-Jaimes has failed to establish a
realistic probability that Louisiana would prosecute an individual under LA.
REV. STAT. ANN. § 40:966(A)(1) for administering a controlled substance “in a
way that does not also constitute either ‘dispensing’ or ‘distributing’ under the
federal sentencing guidelines.” United States v. Teran-Salas, 767 F.3d 453,
460-62 (5th Cir. 2014), cert. denied, 135 S. Ct. 1892 (2015). Therefore, Jaimes-
Jaimes cannot show error, plain or otherwise. See Puckett v. United States,
556 U.S. 129, 135 (2009).
AFFIRMED.