     Case: 13-40884   Document: 00512769284     Page: 1   Date Filed: 09/15/2014




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

                                                                      FILED
                                                                 September 15, 2014
                                    13-40884
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

ROGELIO TERAN-SALAS, also known as Armando Teran-Salas,

             Defendant - Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas


Before DAVIS, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Rogelio Teran-Salas appeals the district court’s application of a sixteen-
level sentence enhancement based on its holding that a prior conviction for
possession with intent to deliver a controlled substance under Texas law
qualified as a drug trafficking offense and an aggravated felony. For the
following reasons, we AFFIRM.


                       FACTS AND PROCEEDINGS
      On April 30, 2013, Teran-Salas was indicted on one count of being an
alien found unlawfully present in the Unites States after deportation in
violation of 8 U.S.C. § 1326(a) and (b). He pleaded guilty to this count without
a plea agreement. The Probation Office prepared a Presentence Investigation
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Report (“PSR”), and assessed a base offense level of 8 pursuant to U.S.S.G.
§ 2L1.2(a). It identified a 2011 Texas conviction for possession with intent to
deliver between four and 200 grams of cocaine. Finding that the conviction
qualified as a “drug trafficking offense” imposing a sentence of greater than
thirteen months, the PSR recommended a 16-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i). The PSR also determined the applicable statutory
maximum term of imprisonment to be 20 years, presumably based on a finding
that Teran-Salas’s prior Texas conviction qualified as an “aggravated felony”
under 8 U.S.C. § 1101(a)(43).
        Teran-Salas submitted a supplemental objection to the PSR, arguing
that his prior Texas conviction did not qualify as a “drug trafficking offense”
under     U.S.S.G.   §   2L1.2(b)(1)(A)   or   an    “aggravated    felony”   under
8 U.S.C. § 1101(a)(43).       He argued that the 16-level enhancement was
inapplicable because the Texas offense of possession with intent to deliver a
controlled substance includes the act of “administering,” whereas the
guidelines’ definition of a drug trafficking offense describes “the possession of
a controlled substance . . . with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv); see Tex. Health &
Safety Code §§ 481.002(14), 481.112(a).          According to Teran-Salas, the
available state court documents did not preclude the possibility that he had
been convicted of possession with intent to administer a controlled substance.
        At sentencing, Teran-Salas again objected to the 16-level enhancement.
Overruling the objection, the court stated that it would “employ a common-
sense approach given that this is an enumerated offense and find that the
Texas Possession with Intent to Deliver[] statute is sufficiently narrow to
encompass the generic contemporary meaning of such term.” After subtracting
three points based on Teran-Salas’s acceptance of responsibility, the court
calculated a total offense level of 21 and a criminal history category of VI. It
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found that his criminal history was overrepresented and therefore departed
downward to a criminal history category of IV. The district court considered
an imprisonment range of 57 to 71 months and sentenced Teran-Salas to 57
months imprisonment. Teran-Salas appeals.


                         STANDARD OF REVIEW
      “We review the district court’s interpretation and application of the
sentencing guidelines de novo and its findings of fact for clear error.” United
States v. Baker, 742 F.3d 618, 620 (5th Cir. 2014). Whether a prior conviction
qualifies as a drug trafficking offense under the federal sentencing guidelines
or as an aggravated felony under 8 U.S.C. § 1326(b)(2) is a legal question that
we review de novo. See United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir.
2013) (en banc).


                               DISCUSSION
      On appeal, Teran-Salas repeats his challenges to the district court’s
determination that his 2011 Texas conviction qualified as either a “drug
trafficking offense” under § 2L1.2 of the guidelines or an “aggravated felony”
under 8 U.S.C. § 1326(b)(2). He argues that the Texas statute criminalizes a
broader set of conduct than that covered by either phrase. Specifically, the
Texas statute criminalizes the “administering” of drugs, which is not covered
by either of the two relevant sentencing provisions. Teran-Salas reasons that,
because the state court documents do not preclude the possibility that his
Texas conviction was for possession with the intent to administer a controlled
substance in a manner that does not also constitute dispensing or distributing,




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the government did not meet its burden of proving he was convicted of either
a drug trafficking offense or an aggravated felony. 1
        The government responds that the federal and state definitions are
essentially identical, and that a drug trafficking offense under the federal
guidelines encompasses possession with the intent to administer in the
manner Teran-Salas hypothesizes. We hold that, although Texas’s statutory
framework leaves open the theoretical possibility that a defendant can be
convicted under Texas Health & Safety Code § 481.112(a) for conduct that
would not qualify as a federal drug trafficking offense, Teran-Salas fails to
establish a realistic probability that Texas would apply its statute in such a
manner.


I. Categorical and Modified Categorical Approaches
        When determining whether a prior conviction qualifies as a level-
enhancing offense under the guidelines, courts employ the categorical
approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990). “[W]e
examine the elements of the offense, rather than the facts underlying the
conviction or the defendant’s actual conduct, to determine whether” the
enhancement applies. United States v. Carrasco-Tercero, 745 F.3d 192, 195



   1  The Immigration and Nationality Act defines “aggravated felony” to include “illicit
trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug
trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101 (a)(43)(B). Section
924(c) of Title 18 defines a drug trafficking crime as “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.” 18 U.S.C. § 924(c)(2). Under
the Controlled Substances Act, it is “unlawful for any person knowingly or intentionally . . .
to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). This wording tracks the relevant
parts of the guidelines definition for “drug trafficking offense.” See U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv). Other than Teran-Salas’s 2011 conviction, the parties do not mention another
conviction for an aggravated felony. We thus resolve both of Teran-Salas’s challenges to the
district court’s judgment using the same analysis.
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(5th Cir. 2014) (alteration in original) (internal quotation marks omitted). We
then “compare the elements of the statute forming the basis of the defendant’s
conviction with the elements of the ‘generic’ crime—i.e., the offense as
commonly understood.” Descamps v. United States, 133 S. Ct. 2276, 2281
(2013). “[T]he offenses must be viewed in the abstract, to see whether the state
statute shares the nature of the federal offense that serves as a point of
comparison.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). State and
federal offenses are only categorical matches when a conviction under the state
offense “necessarily involved . . . facts equating to [the] generic [federal
offense].” Id. (alterations in original) (quoting Shepard v. United States, 544
U.S. 13, 24 (2005) (plurality opinion)) (internal quotation marks omitted).
      Although the categorical approach resolves most enhancement issues,
courts employ a “modified categorical approach” when the prior conviction is
for violating a “divisible statute,” which is one that sets out one or more offense
elements in the alternative. Descamps, 133 S. Ct. at 2281. If one of the
alternative elements is a categorical match for an element in the generic
offense, but another alternative element is not, courts may look at a limited
class of documents to determine which alternative element formed the basis of
a defendant’s prior conviction. Id. Courts may consider only the “charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.” Shepard,
544 U.S. at 16. After reviewing these documents, the court can then compare
the actual offense elements for which the defendant was convicted with the
elements of the generic crime. Descamps, 133 S. Ct. at 2281.
      Pursuant to the Texas statute under which Teran-Salas was convicted
in 2011, “a person commits an offense if the person knowingly manufactures,
delivers, or possesses with intent to deliver a controlled substance.” Tex.
Health & Safety Code § 481.112(a). The Texas code defines “deliver” as “to
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transfer, actually or constructively, to another a controlled substance,
counterfeit substance, or drug paraphernalia, regardless of whether there is
an agency relationship.           The term includes offering to sell a controlled
substance, counterfeit substance, or drug paraphernalia.” Id. § 481.002(8). In
a separate definition, the code provides that distribute means “to deliver a
controlled substance other than by administering or dispensing the substance.”
Id. § 481.002(14). Accordingly, one can possess with the intent to deliver by
possessing with the intent to either distribute, dispense, or administer. See
Santoscoy v. State, 596 S.W.2d 896, 899 (Tex. Crim. App. 1980) (“Delivering . . .
is divided into three forms: administering, dispensing, and distributing. Every
delivery must be in one of those three forms . . . .”). 2
        In comparison, the commentary to the federal sentencing guidelines
defines a drug trafficking offense as “an offense under federal, state, or local
law that prohibits the manufacture, import, export, distribution, or dispensing
of, or offer to sell a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv) (emphases added). This definition does not include possession with
the intent to administer, but “administering” does appear in the federal
definition of “dispensing”:
        The term “dispense” means to deliver a controlled substance to an
        ultimate user or research subject by, or pursuant to the lawful


   2 Under Texas’s definitions, “administer” means “to directly apply a controlled substance
by injection, inhalation, ingestion, or other means to the body of a patient or research subject
by: (A) a practitioner or an agent of the practitioner in the presence of the practitioner; or (B)
the patient or research subject at the direction and in the presence of a practitioner.” Tex.
Health & Safety Code § 481.002(1). “Dispense” is “the delivery of a controlled substance in
the course of professional practice or research, by a practitioner or person acting under the
lawful order of a practitioner, to an ultimate user or research subject. The term includes the
prescribing, administering, packaging, labeling, or compounding necessary to prepare the
substance for delivery.” Id. § 481.002(12).
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      order of, a practitioner, including the prescribing and
      administering of a controlled substance and the packaging,
      labeling or compounding necessary to prepare the substance for
      such delivery. The term “dispenser” means a practitioner who so
      delivers a controlled substance to an ultimate user or research
      subject.
21 U.S.C. § 802(10) (emphases added).
      Under the federal scheme, any administering of a controlled substance
that falls under the federal definition for “dispense” must be “by, or pursuant
to the lawful order of, a practitioner.” Id. As to a practitioner’s agent, the
“lawful order” language in the federal definition for “dispense” is absent from
Texas’s definition. Instead, the agent can administer by applying a drug in the
presence of a practitioner. This allows for the theoretical possibility that a
defendant can be convicted under Texas law for administering in a way that is
not dispensing under the federal guidelines.
      Section 481.112(a) and the commentary to § 2L1.2 thus set forth similar
but not verbatim lists of drug-related offenses.          Because § 481.112(a)
criminalizes discrete acts—manufacturing, delivering, and possessing with
intent to deliver—it is divisible.   We thus apply the modified categorical
approach and “look beyond the statute to certain records made or used in
adjudicating guilt to determine which subpart of the statute formed the basis
of the conviction.” United States v. Castaneda, 740 F.3d 169, 172 (5th Cir.
2013) (internal quotation marks omitted).       Based on Teran-Salas’s Texas
indictment, we know that his conviction was for “knowingly possess[ing], with
intent to deliver, a controlled substance, namely, Cocaine, in an amount of four
grams or more but less than 200 grams.”




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II. Realistic Probability
      Having narrowed Teran-Salas’s Texas offense to possession of more than
four grams of cocaine with intent to deliver, we now determine whether, given
Texas’s definition of “deliver,” such a violation necessarily constitutes a drug
trafficking offense under the federal sentencing guidelines. See Moncrieffe, 133
S.Ct. at 1685 (“We know from his plea agreement that Moncrieffe was
convicted of the last of these offenses . . . . We therefore must determine
whether possession of marijuana with intent to distribute is ‘necessarily’
conduct punishable as a felony under the [Controlled Substances Act].”). We
apply a common-sense approach and hold that, based on the elements of his
conviction, Teran-Salas does not establish a realistic probability that Texas
would prosecute his crime under an “administering” theory in a way that does
not also constitute either “dispensing” or “distributing” under the federal
sentencing guidelines.
      “When an indictment is silent as to the offender’s actual conduct . . . , we
must ensure that the ‘least culpable act constituting a violation of that statute
constitutes’ a drug trafficking offense under the Guidelines.” United States v.
Sandoval-Ruiz, 543 F.3d 733, 735 (5th Cir. 2008) (quoting United States v.
Gonzalez-Ramirez, 477 F.3d 310, 316 (5th Cir. 2007)); see also Moncrieffe, 133
S. Ct. at 1684. But the Supreme Court has warned that focusing on the
minimum conduct criminalized “is not an invitation to apply ‘legal imagination’
to the state offense; there must be ‘a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside
the generic definition of a crime.’” Moncrieffe, 133 S. Ct. at 1684–85 (quoting
Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007)); accord Carrasco-
Tercero, 745 F.3d at 198; see also United States v. Villeda-Mejia, 559 Fed. App’x
387, 389 (5th Cir. 2014) (per curiam). “To show [a] realistic probability, an
offender . . . must at least point to his own case or other cases in which the
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state courts in fact did apply the statute in the special . . . manner for which
he argues.” Carrasco-Tercero, 745 F.3d at 198 (alterations in original) (quoting
Duenas–Alvarez, 549 U.S. at 193) (internal quotation marks omitted); accord
United States v. Garcia-Figueroa, 753 F.3d 179, 187 (5th Cir. 2014).
        Teran-Salas argues that the available state documents do not preclude
the possibility that his conviction was for possession with the intent to
administer in a non-dispensing context—that is, administering without the
lawful order of a practitioner.              His reply brief describes the following
hypothetical situation where a defendant is administering but not dispensing:
        For example, imagine the scenario where, at the direction of a
        sports team’s physician, and in the physician’s presence, a trainer
        injects a player with non-medically necessary steroids. Because
        the delivery of the steroids was not by the physician, or pursuant
        to his lawful order, it would not constitute “dispensing”; but it
        would constitute “administering.”
Although Teran-Salas describes a theoretical possibility that the Texas statute
criminalizes conduct that would not qualify as a drug trafficking offense, there
is not a realistic probability that Teran-Salas was prosecuted for engaging in
medical care or research that involved administering cocaine in amounts
greater than four grams.
        In Ruiz-Sanchez, this court held that a district court did not plainly err
in applying a 16-level drug trafficking enhancement based on a prior conviction
under an Illinois statute similar to § 481.112(a).                   United States v. Ruiz-
Sanchez, No. 12-40199, 2014 WL 2925157, at *1 (5th Cir. June 30, 2014) (per
curiam) (unpublished). 3 The Ruiz-Sanchez court rejected the argument that
the Illinois statute criminalized conduct not qualifying as a drug trafficking


   3 The relevant Illinois statute provides that “it is unlawful for any person knowingly to . . .
possess with intent to manufacture or deliver, a controlled substance.” 720 Ill. Comp. Stat.
570/401. Illinois’s definitions for “deliver,” “distribute,” and “administer” are essentially
identical to the definitions in the Texas statute. See Ill. Comp. Stat. 570/102(b), (h), (r).
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offense—specifically, administering a controlled substance—because he could
not point to an Illinois case applying the statute in an “administering”
situation.     2014 WL 2925157 at *1.            It explained that “[a] ‘theoretical
possibility’ that a statute encompasses other types of conduct that would not
qualify is insufficient to avoid application of the enhancement.” Id. (citing
Carrasco-Tercero, 745 F.3d at 197–98). Similarly, in Villeda-Mejia, this court
rejected the same argument in a case involving a similar Washington statute.
559 F. App’x at 388–89 (affirming district court’s application of drug trafficking
enhancement under plain error review). The Villeda-Mejia court explained
that because the defendant “ha[d] not pointed to a Washington case applying
this statute in an ‘administering’ situation,” it was “far from clear that the
Washington statute encompasses ‘administering.’”                 Id. at 389; see also
Carrasco-Tercero, 745 F.3d at 195, 197–98 (affirming, upon de novo review,
district court’s sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a
prior conviction for a “crime of violence” because defendant could not
demonstrate a “realistic probability”). Like the defendants in Ruiz-Sanchez
and Villeda-Mejia, Teran-Salas does not identify any case that applied
§ 481.112(a) in such a manner. 4
         In Texas, “‘[a]dminister’ means to directly apply a controlled substance
by injection, inhalation, ingestion, or other means to the body of a patient or
research subject” while being either a practitioner, an agent in his presence, or
“a patient or research subject at the direction and in the presence of a
practitioner.” Tex. Health & Safety Code § 481.002(1). As noted above, the
indictment for Teran-Salas’s prior conviction charged him with “knowingly



   4Teran-Salas cites one Texas case, Santoscoy, for the proposition that Texas would apply
§ 481.112(a) in an administering context. But Santoscoy involved dispensing drugs, not
administering them. 596 S.W.2d at 899–900.
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possess[ing], with intent to deliver, a controlled substance, namely, Cocaine, in
an amount of four grams or more but less than 200 grams.” It is not a realistic
probability that someone would engage in medical care or research that
involved administering cocaine in such amounts. Assuming this is even a
possible scenario, it is even less likely that one would “administer” this
quantity of cocaine in such a way that would not also be dispensing—
specifically in the presence of a practitioner, but not at his lawful order. Even
without considering the drug type or quantity, conviction under the administer
prong is not a realistic probability because no previous Texas case has involved
a conviction under this prong.
         We hold that the district court was correct in determining that Teran-
Salas’s Texas conviction was both a drug trafficking offense and an aggravated
felony.     Based on the elements of his conviction—knowingly possessing
between four and 200 grams of cocaine with intent to deliver—Teran-Salas
does not establish 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. 5


                                  CONCLUSION
         For the foregoing reasons, we AFFIRM the district court’s sentence.




   5 Accordingly, the prior conviction must also be an aggravated felony under 8 U.S.C.
§ 1326(b)(2). See supra n.1.
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