     Case: 14-40701       Document: 00513076505         Page: 1     Date Filed: 06/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 14-40701                                    FILED
                                   Summary Calendar                              June 12, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

BENJAMIN RODRIGUEZ-RODRIGUEZ,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:13-CR-880


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Benjamin Rodriguez-Rodriguez challenges the sentence imposed
following his guilty plea to illegal reentry following deportation, in violation of
8 U.S.C. 1326. He claims the district court erroneously imposed a 16-level
enhancement, pursuant to Sentencing Guideline § 2L1.2(b)(1)(A), based on his
2001 Texas conviction for possession of a controlled substance, with intent to
deliver.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-40701     Document: 00513076505      Page: 2    Date Filed: 06/12/2015


                                  No. 14-40701

      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Rodriguez first contends that, because his state conviction could have
been obtained under Texas law by administration of a controlled substance, it
does not constitute a drug trafficking offense for purposes of the enhancement.
As he concedes, this claim is foreclosed by United States v. Teran-Salas, 767
F.3d 453, 458-62 (5th Cir. 2014).
      He additionally claims, for the first time on appeal, that the court plainly
erred by applying the enhancement because, under Texas law, delivery of a
controlled substance does not require proof of commercial activity or
remuneration, and, thus, does not fall within the ordinary meaning of a drug
trafficking offense. This claim is foreclosed by United States v. Martinez-Lugo,
782 F.3d 198, 205 (5th Cir. 2015).
      AFFIRMED.




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