     Case: 14-40763       Document: 00513151206          Page: 1    Date Filed: 08/12/2015




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

                                                                                FILED
                                     No. 14-40763                          August 12, 2015
                                   Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee

v.

OMAR RIVERA-DIAZ,

                                                    Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-156-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Omar Rivera-Diaz challenges his sentence of, inter alia, 46 months’
imprisonment, imposed following his guilty-plea conviction for being found in
the United States after being removed, in violation of 8 U.S.C. § 1326. He
claims the district court erroneously enhanced his offense level by 16, pursuant
to   advisory    Sentencing      Guideline      §    2L1.2(b)(1)(A)(i)     (pre-deportation
conviction for certain drug-trafficking offenses). In that regard, he presents


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-40763

two bases for maintaining the court improperly ruled Rivera’s 2010 Texas
conviction for possession, with intent to deliver, a controlled substance
constituted a “drug trafficking offense” under that Guideline. For the reasons
that follow, each of the two bases is foreclosed.
      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).
      Rivera concedes his first basis, that his Texas offense encompasses a
broader range of conduct than Guideline § 2L1.2 contemplates, is foreclosed by
United States v. Teran-Salas, in which our court held the Texas offense of
possession, with intent to deliver, cocaine was a drug-trafficking offense under
Guideline § 2L1.2 and an aggravated felony under 8 U.S.C. § 1326(b). 767 F.3d
453, 461 (5th Cir. 2014), cert. denied 135 S. Ct. 1892 (2015). He presents this
issue only to preserve it for possible further review.
      For his second basis, Rivera maintains his prior Texas crime was not a
“drug trafficking offense” because Texas law does not require proof of
remuneration or commercial activity in order to obtain a conviction for
possession, with intent to deliver, a controlled substance. Recently, however,
in United States v. Martinez-Lugo, our court held an enhancement under
Guideline § 2L1.2(b)(1)(A)(i) for a prior conviction of a drug-trafficking offense
is warranted regardless of whether the conviction for the prior offense required




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                                 No. 14-40763

remuneration. 782 F.3d 198, 204-05 (5th Cir.), petition for cert. filed (19 June
2015) (No. 14-10355).
      AFFIRMED.




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