     Case: 18-60509    Document: 00515115580     Page: 1   Date Filed: 09/12/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                 No. 18-60509                          FILED
                               Summary Calendar                September 12, 2019
                                                                  Lyle W. Cayce
                                                                       Clerk
UBALDO OLGUIN PADILLA,

                                            Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                            Respondent


                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:
      Ubaldo Olguin Padilla is a native and citizen of Mexico admitted to the
United States as a lawful permanent resident in 1992.                  The Board of
Immigration Appeals (BIA) affirmed the immigration judge’s (IJ) finding of
removability and discretionary denial of Padilla’s application for cancellation
of removal. Padilla was found to be removable based on a finding that his 2011
Texas conviction for possession of methamphetamine with intent to deliver was
a violation of a state law “relating to a controlled substance” as defined in the
Controlled Substances Act (CSA).       8 U.S.C. § 1182(a)(2)(A)(i)(II); see TEX.
HEALTH & SAFETY CODE § 481.112. In his petition for review, Padilla contends
that § 481.112 does not “relate to” a federally controlled substance because it
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                                      No. 18-60509

punishes, in the least, an offer to sell drugs that turn out to be counterfeit,
whereas the CSA does not punish delivery of simulated or fake drugs. See
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273, 275 (BIA 2010). Padilla also
challenges the BIA’s denial of his request for cancellation of removal.
                                          I.
       We first address whether Padilla’s state conviction for possession of meth
with intent to deliver was an offense “relating to a controlled substance” that
rendered him removable. 8 U.S.C. § 1182(a)(2)(A)(i)(II). It was. Amolegbe v.
Holder, 319 F. App’x 344, 344-45 (5th Cir. 2009) (holding that a Texas
conviction for delivery of cocaine “constitutes a state crime ‘relating to a
controlled substance’”). 1 The premise of Padilla’s argument—that delivery
under § 481.112 includes an offer to sell fake or counterfeit drugs—is
erroneous. Regardless whether an offered substance ends up being counterfeit
as a factual matter, in terms of the elements of the offense an offer to sell is an
offer to sell an actual Penalty Group 1 drug. See § 481.112(a) (prohibiting the
manufacture, delivery, or possession with intent to deliver of “a controlled
substance listed in Penalty Group 1”); Stewart v. State, 718 S.W.2d 286, 288
(Tex. Crim. App. 1986) (holding that delivery of a controlled substance by offer
to sell “is complete when, by words or deed, a person knowingly or intentionally
offers to sell what he states is a controlled substance”) (emphasis added). The
nature of the substance ultimately delivered is immaterial and need not be
proven. See Iniguez v. State, 835 S.W.2d 167, 171 (Tex. App.—Houston [1st
Dist.] 1992) (holding that an offer to sell satisfies § 481.112 “regardless of . . .
whether the substance transferred is an actual controlled substance or not”).



       1 Although an unpublished opinion issued on or after January 1, 1996, is generally not
controlling precedent, it may be considered as persuasive authority. See Ballard v. Burton,
444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).


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                                      No. 18-60509

       Padilla points to no Texas case applying § 481.112 to an offer to sell that
did not propose the transfer of an actual drug. 2 Rodriguez v. State, 879 S.W.2d
283 (Tex. App.—Houston [14th Dist.] 1994), involved an offer to sell undercover
agents an actual controlled substance—cocaine—but flour ended up being
delivered. Rodriguez, 879 S.W.2d at 284. The appellate court reversed the
defendant’s conviction for delivery under § 482.112, concluding that the more
specific statute addressing delivery of simulated drugs (§ 482.002) applied. Id.
at 285–86. If anything, Rodriguez shows that § 481.112 does not reach offers
to sell counterfeit drugs as the court said the simulated drug offense governed.
And although holding that the more specific offense displaced § 481.112
because the actual delivery was for fake drugs, it still recognized that as a
general matter the defendant “was subject to conviction under Section 481.112
for offering to sell a controlled substance.” Id. at 285.
       Nor does Whitfield v. State, 916 S.W.2d 49 (Tex. App.—Houston [1st.
Dist.] 1996), support Padilla’s argument that § 481.112 covers conduct
unrelated to a controlled substance. Like Rodriguez, Whitfield involved a
transaction between several coconspirators and undercover agents for what
was held out to be cocaine but turned out not to be a controlled substance at
all (it was duct-taped dominoes). Id. at 50-51. As in Rodriguez, Whitfield was
convicted under § 481.112 for delivery (by offer to sell) of a controlled substance
and argued on appeal that he should instead have been convicted under
§ 482.002 for delivering a simulated controlled substance. Id. at 51. The state


       2  Nor does In re Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010), help Padilla.
Sanchez-Cornejo was initially found removable based on his conviction for an “aggravated
felony,” namely delivery by actual transfer of simulated cocaine under § 482.002. 25 I. & N.
Dec. at 273-74. Vacating the removal order, the BIA held that “[t]he delivery of a simulated
controlled substance is not an offense that is punishable under the CSA.” Id. at 275. But
Sanchez-Cornejo concerned the definition of “aggravated felony” and involved a conviction
under § 482.002, not § 481.112. It says nothing about whether a conviction under the latter
categorically relates to a controlled substance.


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                                       No. 18-60509

court held that Whitfield was subject to conviction under § 481.112 for
“delivery by offering to sell a controlled substance.” 3 Id. at 52 (emphasis in
original).
       Texas caselaw thus confirms what the statutory language and common
sense tell us: offering to sell a drug is a crime only when the seller purports to
be offering a real controlled substance. Because the state requires an offer to
sell a Penalty Group 1 substance, § 481.112 relates to “a drug or other
substance, or immediate precursor, included in [the CSA] schedule[s].” 21
U.S.C. § 802(6). Padilla fails to show that the BIA erred in finding that his
Texas drug delivery conviction renders him removable. See Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
                                           II.
       We lack jurisdiction to review the BIA’s discretionary decision to deny
cancellation of removal. See Tula Rubio v. Lynch, 787 F.3d 288, 290 (5th Cir.
2015). Padilla cites only factfinding error by the IJ, not legal or constitutional
error, and, in any event, the IJ’s error was not adopted or relied upon by the
BIA, whose order we review. See Vasquez-Martinez v. Holder, 564 F.3d 712,
716 (5th Cir. 2009); Sattani v. Holder, 749 F.3d 368, 370, 372 (5th Cir. 2014);
Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).
                                           ***
       The petition for review is DENIED.




       3 The result was different than Rodriguez because Whitfield was a middleman who
did not participate in the actual drug transaction and thus did not have the intent to deliver
a simulated substance that § 482.002 requires. 916 SW.2d at 52.


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