     Case: 14-40159      Document: 00512789045         Page: 1    Date Filed: 10/01/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40159
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          October 1, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellee

v.

FERNANDO CASANOBA-RUBI, true name Gregorio Abarca-Aguilar, also
known as Rubei Fernandez Casanoba,

                                                 Defendant–Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:13-CR-893-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Fernando Casanoba-Rubi (Casanoba) appeals his conviction for illegal
reentry into the United States following deportation and his sentence of 37
months of imprisonment. He argues that the district court plainly erred in
enhancing his offense level for a prior drug trafficking offense under U.S.S.G.
§ 2L1.2(b)(1)(A) based on a 1993 Washington conviction for delivery of heroin.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40159     Document: 00512789045      Page: 2   Date Filed: 10/01/2014


                                  No. 14-40159

See WASH. REV. CODE § 69.50.401(a)(1)(i) (West 1993). Because Casanoba did
not challenge his sentence on this basis in the district court, we review for plain
error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      Section 2L1.2(b)(1)(A)(i) provides for a 12-level increase to a defendant’s
offense level if he was previously removed after a conviction for a felony that
is a drug trafficking offense for which the sentence imposed exceeded 13
months, if this conviction does not receive criminal history points. Generally,
we apply the “categorical approach” to determine whether a prior conviction is
a predicate offense under the Guidelines, looking at the category of conduct the
statute criminalizes rather than the facts underlying the prior offense.
Descamps v. United States, 133 S. Ct. 2276, 2283-85 (2013); Shepard v. United
States, 544 U.S. 13, 17 (2005).
      According to Casanoba, the enhancement did not apply because the
Washington statute criminalized a broader range of conduct than the
Guidelines offense. Specifically, he contends that the Washington statute
defines “delivery” to include administering an illegal substance while the
Guidelines do not. We rejected this same argument in United States v. Villeda-
Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per curiam). As in that case,
Casanoba has failed to show a clear or obvious error in the application of the
enhancement. See id.; see also United States v. Carrasco-Tercero, 745 F.3d 192,
197-98 (5th Cir. 2014). Moreover, in light of Villeda-Mejia, and in the absence
of binding authority to the contrary, any error in the district court is neither
clear nor obvious. See, e.g., United States v. Guerrero-Robledo, 565 F.3d 940,
946 (5th Cir. 2009).
      Although Casanoba argues additionally that the judgment and
information were insufficient to support the enhancement, he has failed to
show that the Washington provision encompasses conduct beyond that of the



                                        2
    Case: 14-40159    Document: 00512789045     Page: 3   Date Filed: 10/01/2014


                                 No. 14-40159

Guidelines offense. Therefore, he has failed to show that the district court
considered, or should have considered, the documentation of the prior offense
beyond the fact of conviction itself. Cf. Descamps, 133 S. Ct. at 2281.
      Casanoba also asserts for the first time on appeal that the district court
plainly erred in characterizing his conviction as arising under 8 U.S.C.
§ 1326(b)(2). In Villeda-Mejia, we held that the district court did not plainly
err in treating a conviction under Washington Revised Code § 60.50.401 as an
aggravated felony pursuant to § 1326(b)(2). 559 F. App’x at 389. Therefore, as
with Casanoba’s challenge to the enhancement, any error in the district court
is neither clear nor obvious. See, e.g., Guerrero-Robledo, 565 F.3d at 946.
      For these reasons, the judgment of the district court is AFFIRMED.




                                       3
