     Case: 15-41129      Document: 00513472060         Page: 1    Date Filed: 04/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41129
                                 Conference Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 20, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JAIME SILVA-MENDOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-442-1


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Appealing the judgment in a criminal case, Jaime Silva-Mendoza raises
an argument that is foreclosed by United States v. Teran-Salas, 767 F.3d 453,
458-62 (5th Cir. 2014), cert. denied, 135 S. Ct. 1892 (2015). In Teran-Salas, we
determined that the appellant was not entitled to relief based merely on the
existence of a theoretical possibility that a defendant could be convicted under
Texas Health & Safety Code § 481.112(a) for conduct that would not qualify as


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41129    Document: 00513472060      Page: 2   Date Filed: 04/20/2016


                                  No. 15-41129

a federal drug trafficking offense. See Teran-Salas, 767 F.3d at 458. Silva-
Mendoza has not demonstrated “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.” See id. at 461-62.
      Silva-Mendoza also raises an argument that is foreclosed by our holding
in United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir.), cert. denied, 136 S.
Ct. 533 (2015).   In Martinez-Lugo, 782 F.3d at 204-05, we held that an
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior felony conviction of
a drug trafficking offense is warranted regardless whether the conviction for
the prior offense required proof of remuneration or commercial activity.
      Accordingly, the Government’s unopposed motion for summary
affirmance is GRANTED, the alternative motion for an extension of time to file
a brief is DENIED, and the judgment of the district court is AFFIRMED.




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