     Case: 13-41262      Document: 00513330022         Page: 1    Date Filed: 01/05/2016




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

                                                                                FILED
                                    No. 13-41262                          January 5, 2016
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN NAIN REYES-REYES, also known as Juan Nain Reyes,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1058-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Juan Nain Reyes-Reyes appeals the 46-month
sentence imposed following his conviction for being present in the United
States illegally following removal.               He challenges the sixteen-level
enhancement imposed under U.S.S.G. § 2L1.2(b)(1)(A)(i), which was based on
his Texas conviction for possession with intent to deliver more than 200 grams
but less than 400 grams of cocaine. He argues that this conviction does not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41262    Document: 00513330022    Page: 2   Date Filed: 01/05/2016


                                No. 13-41262

qualify as a drug trafficking offense because Texas’s definition of delivery,
which includes administering, is broader than the definition of a drug
trafficking offense under § 2L1.2. For the same reasons, he contends that the
Texas offense does not qualify as an aggravated felony under 8 U.S.C.
§ 1326(b)(2).
      His arguments are foreclosed by our decision in United States v. Teran-
Salas, 767 F.3d 453 (5th Cir. 2014), cert. denied, 135 S. Ct. 1892 (2015). In
that case, we held that there is no realistic probability that Texas would
prosecute the crime under an “administering” theory in a way that does not
also constitute either “dispensing” or “distributing” under the federal
sentencing guidelines. We noted that “[e]ven 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.” Id. at 461. The Texas offense of possession with intent to deliver
cocaine is therefore a drug trafficking offense under the Guidelines and an
aggravated felony under § 1326(b). See id. at 461-62 & n.5.
      AFFIRMED.




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