     Case: 14-50121      Document: 00513076997         Page: 1    Date Filed: 06/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50121
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 12, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

EDIL LEONEL AVILA-CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-531-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Edil Leonel Avila-Cruz (Avila) appeals his conviction and sentence for
being unlawfully present in the United States following removal. He contends
that the district court plainly erred by entering judgment against him under 8
U.S.C. § 1326(b)(2), because he was not removed from the United States
following a conviction for an aggravated felony. Avila’s previous conviction was
based on an indictment for delivery of a controlled substance. The indictment


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-50121

indicated that Avila had actually transferred, constructively transferred, and
offered to sell a controlled substance, each of which would have been sufficient
on its own for a conviction. Because Avila’s prior conviction could have been
obtained under an offering-to-sell theory, which is not a felony punishable
under the Controlled Substances Act, it was not an aggravated felony. See
United States v. Ibarra-Luna, 628 F.3d 712, 714-16 & n.19 (5th Cir. 2010).
      Avila did not raise this argument in the district court, so we review for
plain error only. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). To establish plain error, Avila must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but should do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      The parties agree on the appropriate resolution of this issue, and they
are correct. Avila’s conviction should have been entered under § 1326(b)(1) for
being unlawfully present in the United States following removal subsequent to
a felony conviction, which allows a maximum of a 10-year sentence of
imprisonment, not under § 1326(b)(2) for being unlawfully present in the
United States following removal subsequent to a conviction for an aggravated
felony, which allows a maximum sentence of 20 years of imprisonment. Since
the district court sentenced Avila to 36 months of imprisonment, which is well
within the correct statutory maximum of 10 years of imprisonment, and since
nothing in the record indicates that the district court’s possibly-erroneous
belief that the statutory maximum was 20 years of imprisonment affected its
sentencing decision, Avila cannot show that the error affected his substantial
rights and therefore cannot show plain error. See Mondragon-Santiago, 564
F.3d at 369. Nevertheless, due to possible immigration consequences, remand



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                                 No. 14-50121

is necessary for the entry of a corrected written judgment reflecting a
conviction under § 1326(b)(1) instead of § 1326(b)(2). See United States v.
Mendoza-Perez, 496 F. App’x 431, 438-39 & n.26 (5th Cir. 2012).
      Avila also contends that the district court erred by applying a 16-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), which authorizes an
enhancement if the defendant was previously deported following a conviction
for a drug trafficking offense for which the sentence imposed was greater than
13 months. Avila argues that his prior conviction for delivery of a controlled
substance under TEX. HEALTH & SAFETY CODE § 481.112 was not a drug
trafficking offense, because the Texas statute could be violated by
administering a controlled substance, an act that is outside the definition of a
drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) and the definition of
an aggravated felony under § 1101(a)(43) and § 1326(b)(2). After Avila filed his
appeal, this court rejected this argument. See United States v. Teran-Salas,
767 F.3d 453, 457-62 (5th Circuit 2014). In Teran-Salas, this court held that
while there was a theoretical possibility that the defendant could be convicted
under TEX. HEALTH & SAFETY CODE § 481.112 under an administering theory,
there was not a realistic possibility that the defendant was convicted under
such a theory, making a conviction under TEX. HEALTH & SAFETY CODE
§ 481.112 a drug trafficking offense under § 2L1.2(b)(1)(A)(i).       Avila now
acknowledges that the decision in Terans-Salas forecloses his argument as to
administering (though not as to offering to sell); however, he maintains this
argument for purposes of further review.
      AFFIRMED; REMANDED FOR CORRECTION OF JUDGMENT.




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