     Case: 14-40940      Document: 00513241713         Page: 1    Date Filed: 10/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40940
                                 Conference Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 22, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MANUEL AGAPITO GARCIA-CONTRERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-290-1


Before HIGGINBOTHAM, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Appealing the judgment in a criminal case, Manuel Agapito Garcia-
Contreras 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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40940    Document: 00513241713     Page: 2   Date Filed: 10/22/2015


                                 No. 14-40940

would not qualify as a federal drug trafficking offense. See Teran-Salas, 767
F.3d at 458. Garcia-Contreras 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.” Id. at 461-62.
      Garcia-Contreras also raises an argument that is foreclosed by our
holding in United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir.
2015), petition for cert. filed (June 19, 2015) (No. 14-10355), that an
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior 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.




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