Opinion
No. 15-41129
04-20-2016
UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAIME SILVA-MENDOZA, Defendant-Appellant
Conference Calendar Appeal from the United States District Court for the Southern District of Texas
USDC No. 7:15-CR-442-1 Before REAVLEY, ELROD, and HAYNES, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. --------
Appealing the judgment in a criminal case, Jaime Silva-Mendoza raises an argument that is foreclosed by United States v. Teran-Salas, 767 F.3d 453, 458-62 (5th Cir. 2014), cert. denied, 135 S. Ct. 1892 (2015). In Teran-Salas, we determined that the appellant was not entitled to relief based merely on the existence of a theoretical possibility that a defendant could be convicted under Texas Health & Safety Code § 481.112(a) for conduct that would not qualify as a federal drug trafficking offense. See Teran-Salas, 767 F.3d at 458. Silva-Mendoza has not demonstrated "a realistic probability that Texas would prosecute under an 'administering' theory in a way that does not also constitute either 'dispensing' or 'distributing' under the federal sentencing guidelines." See id. at 461-62.
Silva-Mendoza also raises an argument that is foreclosed by our holding in United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir.), cert. denied, 136 S. Ct. 533 (2015). In Martinez-Lugo, 782 F.3d at 204-05, we held that an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior felony conviction of a drug trafficking offense is warranted regardless whether the conviction for the prior offense required proof of remuneration or commercial activity.
Accordingly, the Government's unopposed motion for summary affirmance is GRANTED, the alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.