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

                                                                                          FILED
                                        No. 13-40862                                 May 21, 2015
                                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                                Clerk


                                                    Plaintiff - Appellee
v.

MARIO RIOS-PINTADO, also known as Javier Gonzalez-Lora,

                                                    Defendant - Appellant




                     Appeal from the United States District Court
                          for the Southern District of Texas
                                USDC No. 5:12-CR-905


Before STEWART, Chief Judge, and HAYNES, Circuit Judge, and BROWN,
District Judge.*
PER CURIAM:**
      Defendant Mario Rios-Pintado appeals his sentence after conviction for
being unlawfully present in the United States after deportation in violation of
8 U.S.C. § 1326. On August 5, 2013, the district court sentenced Rios-Pintado
to 37 months in prison and three years of supervised release. The district
court imposed a 12-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(B)


      *    District Judge of the Eastern District of Louisiana, sitting by designation.
      ** 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not be published and is not precedent except under the limited circumstances set forth in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. 13-40862
based on Rios-Pintado’s 2011 conviction under Texas Health and Safety Code
§ 481.112(a) for delivery of a controlled substance. The district court also
determined that the 2011 Texas conviction was an aggravated felony
pursuant to 8 U.S.C. § 1326(b)(2). Moreover, at sentencing, the district court
denied Rios-Pintado’s request for an additional one-level reduction for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b), noting that the
government had not moved for the additional one-level reduction. 1 The
district court’s determination was consistent with circuit precedent at the
time. See United States v. Newson, 515 F.3d 374 (5th Cir. 2008). Rios-Pintado
appeals these determinations. For the reasons that follow, we affirm the
sentence.
                                  BACKGROUND
      On October 10, 2012, Rios-Pintado was charged by a one-count
indictment with having been found unlawfully present in the United States
after deportation, in violation of 8 U.S.C. § 1326(a) and (b). On November 13,
2012, he pleaded guilty to the indictment without a plea agreement.
      The Probation Officer prepared a Presentence Investigation Report
(“PSR”), and assessed a base offense level of eight pursuant to U.S.S.G.
§ 2L1.2(a). The PSR identified a 2004 Texas conviction for unlawful
possession of a controlled substance. The PSR also identified a 2011 Texas
conviction for unlawful delivery of a controlled substance in violation of Texas
Health & Safety Code § 481.112(a). Rios-Pintado’s 2011 Texas indictment
shows that he was charged with “unlawfully and knowingly deliver[ing] . . .
[c]ocaine in an amount by aggregate weight, including any adulterants or
dilutants of less than 1 gram.” Rios-Pintado pleaded guilty to the 2011 Texas


      1 Rios-Pintado claims that the Government withheld the one-level reduction because
Rios-Pintado would not waive his right to appeal. The government does not contest this
assertion.
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                                    No. 13-40862
indictment, and he was sentenced to six months imprisonment. Accordingly,
the PSR found that the 2011 conviction qualified as a “drug trafficking
offense” imposing a sentence of 13 months or less, and the PSR recommended
a 12-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(B).
      The PSR determined that Rios-Pintado was entitled to a two-level
reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). It
noted that the government would not file a motion for an additional one-level
reduction pursuant to U.S.S.G. § 3E1.1(b). Accordingly, the PSR calculated
the total offense level to be 18.
      The PSR noted that pursuant to U.S.S.G. § 4A1.3, the district court
could consider an upward departure if it found that the defendant’s criminal
history category underrepresented the seriousness of his criminal history. In
addition to the convictions noted above, the PSR identified a June 2, 2005
arrest in Dallas, Texas, for manufacturing/delivering a controlled substance.
The PSR noted that the case was dismissed on June 12, 2012, due to Rios-
Pintado’s pending deportation.
      Rios-Pintado filed an objection to the PSR, arguing that he should
receive an additional one-level reduction under U.S.S.G. § 3E1.1(b) because
he fully accepted responsibility for the crime. He argued that in light of the
Fourth Circuit’s decision in United States v. Divens, 650 F.3d 343 (4th Cir.
2011), the government may not refuse to move for the additional one-level
reduction for acceptance of responsibility solely based on the defendant’s
decision not to enter a plea agreement containing an appeal waiver. He
conceded that this argument was foreclosed by the Fifth Circuit’s decision in
United States v. Newson, 515 F.3d at 378. However, he noted that the United
States Sentencing Commission proposed an amendment to the Sentencing
Guidelines, by stating in Application Note 6 to § 3E1.1(b), “The government
should not withhold such a motion based on interests not identified in
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                                 No. 13-40862
§ 3E1.1, such as whether the defendant agrees to waive his or her right to
appeal.”
      On July 31, 2013, Rios-Pintado filed a motion for leave to file an out of
time objection to the PSR, arguing that his 2011 Texas conviction was not a
“drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B) or an “aggravated
felony” under 8 U.S.C. § 1101(a)(43)(B) and 8 U.S.C. § 1326(b)(2). He argued
that the Texas statute criminalizes administering of drugs, which he asserted
was not covered by either of the two relevant sentencing provisions.
Accordingly, he contended that the 12-level enhancement was not warranted
because “the state court documents do not preclude the possibility that his
delivery conviction was based on authorized administration.”
      At the sentencing hearing, the district court overruled Rios-Pintado’s
objection regarding the additional one-level reduction for acceptance of
responsibility, finding that the objection was foreclosed by Fifth Circuit
precedent. The district court also overruled Rios-Pintado’s objection
regarding the 12-level enhancement, stating that it “comports factually and
legally” with United States v. Marban-Calderon, 631 F.3d 210 (5th Cir. 2011).
      In imposing the sentence, the district court stated that it had
considered the factors set forth in 18 U.S.C. § 3553(a), and it found that “the
aggravating factors outweigh those mitigating factors, particularly in light of
this defendant’s serious conviction history.” The court noted that Rios-
Pintado had two prior convictions for drug-related offenses: a 2004 conviction
where he was given a deferred sentence, and a 2011 conviction where he was
given a six-month sentence. The court observed that those sentences
appeared to be “light,” and that Rios-Pintado was “given breaks on both
convictions.” The district court then sentenced Rios-Pintado to 37 months
imprisonment, a sentence at the top of the Guideline range, and three years
of supervised release. The court further stated that:
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                                 No. 13-40862
      I was really considering an upward departure of [sic] variance,
      but I’m taking into consideration the fact that the sentencing
      commission is reviewing this issue regarding the third point for
      acceptance. And even though the Court cannot give it, because
      the Government has not moved for it, taking that into
      consideration for not doing the upward variance or departure
      that I was originally thinking about doing, so the sentence is the
      same in that regard.

                            STANDARD OF REVIEW
      This Court reviews 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). Rios-Pintado raises
two issues on appeal. Because Rios-Pintado preserved these arguments in the
district court, our review is de novo. See United States v. Rodriguez, 711 F.3d
541, 548 (5th Cir. 2013) (en banc).
                                DISCUSSION
                                       I.

      Rios-Pintado asserts that the district court erred by imposing a 12-level
“drug trafficking offense” enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(B)
based on his 2011 Texas conviction. For the same reasons, he also argues that
the district court erred when it found that the 2011 conviction was an
“aggravated felony” pursuant to 8 U.S.C. § 1326(b)(2).
      U.S.S.G. § 2L1.2(b)(1)(B) provides that the offense level for unlawfully
entering or remaining in the United States shall be increased by 12 levels if
the defendant was deported after a conviction for a felony drug trafficking
offense for which the sentence imposed was 13 months or less, if the
conviction receives criminal history points. The commentary to § 2L1.2
defines a drug trafficking offense as “an offense under federal, state, or local
law that prohibits the manufacture, import, export, distribution, or

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                                 No. 13-40862
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).
      Rios-Pintado asserts that the Texas statute can be violated by
“distributing,” “administering,” or “dispensing” of a controlled substance,
whereas the Guideline definition of a “drug trafficking offense” comprehends
only “distributing” or “dispensing” of a controlled substance. Therefore, he
argues that his conviction for delivery of a controlled substance could have
rested on a basis that did not qualify as a “drug trafficking offense” or an
“aggravated felony.” The government concedes that the federal definition of
“delivery” does not include “administration” of controlled substances, but it
asserts that the federal definition of “dispense” includes “administration” of
controlled substances. Alternatively, the government asserts that Rios-
Pintado’s transfer of cocaine or offer to sell cocaine to another individual fell
outside the meaning of “administering.”
      In United States v. Teran-Salas, 767 F.3d 453 (5th Cir. 2014), decided
by this Court on September 15, 2014, the defendant challenged application of
the § 2L1.2 “drug trafficking offense” enhancement under the same state
statute on virtually the same grounds raised here. Rios-Pintado makes no
argument to distinguish his case from the holding in Teran-Salas, and there
does not appear to be any. Accordingly, his argument is foreclosed by circuit
precedent.
      In Teran-Salas, 767 F.3d at 461−62 & n.5, this Court held that a
conviction under Texas Health and Safety Code § 481.112(a) of possession
with intent to deliver cocaine was a drug trafficking offense for purposes of
the U.S.S.G. § 2L1.2(b)(1)(A)(i) enhancement and an aggravated felony under
8 U.S.C. § 1326(b)(2). The Court engaged in a thorough analysis comparing
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the Texas statute 2 to the Guidelines. 3 Id. at 458−59. The Court noted that
“[u]nder 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,’” whereas under Texas law, “the agent can
administer by applying a drug in the presence of a practitioner.” Id. at 459
(citing 21 U.S.C. § 802(10)). Accordingly, the Court found that there was a
“theoretical possibility that a defendant can be convicted under Texas law for
administering in a way that is not dispensing under the federal guidelines.”
Id. at 459.
       Rios-Pintado was convicted of unlawful delivery of a controlled
substance in violation of Texas Health and Safety Code § 481.112(a), which is
a “divisible statute” in that it criminalized several discrete acts. See Teran-
Salas, 767 F.3d 453, 460−62. Therefore, the Court applies the “modified

       2  The Texas code provides that “a person commits an offense if the person knowingly
manufactures, delivers, or possesses with intent to deliver a controlled substance.” Teran-
Salas, 767 F.3d at 458 (citing Tex. Health & Safety Code § 481.112(a)). The Texas code
defines “deliver” as “to transfer, actually or constructively, to another a controlled
substance, counterfeit substance, or drug paraphernalia. . .” Id. (citing Tex. Health & Safety
Code § 481.002(8)). The Texas code defines “distribute” as “to deliver a controlled substance
other than by administering or dispensing the substance.” Id. at 458−59 (citing Tex. Health
& Safety Code § 481.002(14)). The Texas code defines “administer” as “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.” Id. at n.2 (citing Tex. Health & Safety Code § 481.002(1).
“Accordingly, [under Texas law] one can possess with the intent to deliver by possessing
with the intent to either distribute, dispense, or administer.” Id. at 459 (citing Santoscoy v.
State, 596 S.W.2d 896, 899 (Tex.Crim.App.1980)).
        3 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.” Teran-
Salas, 767 F.3d at 459 (citing U.S.S.G. § 2L1.2 cmt. n.1(B)(iv)). The Court noted that the
term dispense can include administering. Id. (citing 21 U.S.C. § 802(10)). “However, 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.
(quoting 21 U.S.C. § 802(10)).
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                                No. 13-40862
categorical approach” for determining whether his prior conviction qualifies
as a level-enhancing offense under the Guidelines, “look[ing] 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.” Id. at 459.
Looking to the 2011 Texas indictment, it shows that Rios-Pintado was
convicted of “unlawfully and knowingly deliver[ing] . . . [c]ocaine in an
amount by aggregate weight, including any adulterants or dilutants of less
than 1 gram.”
      Applying the same “common sense approach” that this Court applied in
Teran-Salas, Rios-Pintado has not shown that it is a realistic possibility that
a person either would be prosecuted for “administering” cocaine as that term
is defined under the Texas statute or could “administer” cocaine in a manner
that did not also constitute “dispensing” or “distributing” under the
Guidelines. 767 F.3d 453, 460−62. Moreover, he has identified no prior Texas
case applying the statute in an “administering” situation. Id. at 460−61. A
theoretical possibility that a statute might encompass types of conduct that
would not qualify as a drug trafficking offense is insufficient. See United
States v. Carrasco-Tercero, 745 F.3d 192, 197−98 (5th Cir. 2014). Accordingly,
on de novo review, this Court finds that the district court correctly
determined that Rios-Pintado’s 2011 Texas conviction for delivery of a
controlled substance was a drug trafficking offense pursuant to U.S.S.G.
§ 2L1.2(b)(1)(B) and an aggravated felony pursuant to 8 U.S.C. § 1326(b)(2).
                                      II.
      Rios-Pintado argues that the district court erred when it denied his
request for an additional one-level reduction for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(b) because the government did not move for the
additional reduction. In United States v. Newson, this Court held that a
defendant’s refusal to waive his right to appeal was a proper basis upon
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                                     No. 13-40862
which the government could decline to move for an additional one-level
reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b).
515 F.3d at 378. However, Amendment 775 to the Sentencing Guidelines
became effective November 1, 2013, after Rios-Pintado was sentenced but
while this appeal was pending. Amendment 775 provides: “The government
should not withhold [a § 3E1.1(b)] motion based on interests not identified in
§ 3E1.1, such as whether the defendant agrees to waive his or her right to
appeal.” U.S.S.G. supp. to app. C, amend. 775, at p. 43 (2013); accord
U.S.S.G. § 3E1.1 cmt. n.6. During the pendency of this appeal, this Court
held that Amendment 775 applies to cases pending on direct appeal. Villegas
Palacios, 756 F.3d at 326. In a footnote, this Court explained that all active
judges had assented to the opinion and that the en banc Court therefore
concluded that “Newson—to the extent it may constrain us from applying
Amendment 775 to cases pending on direct appeal under our rule of
orderliness—is abrogated in light of Amendment 775.” Id. at n.1.
         On February 24, 2014, the government filed a Rule 28(j) letter into the
record conceding that error occurred in this case because Rios-Pintado is
entitled to the benefit of the November 1, 2013 amendment to U.S.S.G.
§ 3E1.1(b). 4 The government does not dispute that the additional one-level
reduction was withheld because Rios-Pintado did not waive his right to
appeal. In light of the amendment to § 3E1.1’s commentary and the holding
in Villegas Palacios, the district court’s denial of Rios-Pintado’s request for
the additional one-level reduction for acceptance of responsibility was an
error.
         If the district court has misapplied the Sentencing Guidelines, then
this Court must determine whether remand is appropriate. Improperly

         This Court is not bound by the government’s concession of error. See United States
         4

v. Silva-De Hoyos, 702 F.3d 843, 848 (5th Cir. 2012).
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calculating a defendant’s Guideline range is a procedural error. Gall v.
United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If
a procedural error occurs during sentencing, remand is appropriate unless
the government can establish that the error was harmless. See United States
v. Delgado-Martinez, 564 F.3d 750, 752−53 (5th Cir. 2009). The party seeking
to uphold the sentence bears the burden of establishing that an error is
harmless. Id. “A procedural error during sentencing is harmless if ‘the error
did not affect the district court’s selection of the sentence imposed.’” Id. at
753 (quoting Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112,
117 L.Ed.2d 341 (1992)). “[T]he harmless error doctrine applies only if the
proponent of the sentence convincingly demonstrates both (1) that the district
court would have imposed the same sentence had it not made the error, and
(2) that it would have done so for the same reasons it gave at the prior
sentencing.” United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).
To satisfy this burden, the proponent of the sentence “must point to evidence
in the record that will convince us that the district court had a particular
sentence in mind and would have imposed it, notwithstanding the error.” Id.
at 718 (quoting United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998)).
The sentence imposed must not be “influenced in any way by the erroneous
Guidelines calculation.” Id. at 719.
      Rios-Pintado argues that the error was not harmless because the
district court imposed a prison sentence of 37 months, using a Guideline
range of 30 to 37 months, even though the correct Guideline range, with the
additional one-level reduction, should be 27 to 33 months. He asserts that
although the district court “mentioned imposing a higher sentence, it
nowhere stated, and the record does not clearly show, that it would have . . .
imposed the same sentence as a non-Guidelines sentence had the error not
occurred and had a lower Guideline applied.” The government contends that
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                                 No. 13-40862
the error is harmless because the district court would have imposed the same
sentence. It asserts that the district court indicated that it would have
departed or varied upward to reach the same sentence had Rios-Pintado
received the additional one-level reduction.
      Based on the correct offense level of 17 and a criminal history category
of II, Rios-Pintado’s properly calculated Guideline range would have been 27
to 33 months imprisonment, rather than 30 to 37 months imprisonment.
However, the PSR, which was adopted by the district court, noted that Rios-
Pintado’s underrepresented criminal history category could be a basis for an
upward departure under U.S.S.G. § 4A1.3.
      Rios-Pintado asserts that the district court did not clearly state and the
record does not clearly show that the district court would have imposed the
same sentence had the error not occurred. This argument is unavailing
because the district court stated that if Rios-Pintado was entitled to the
additional one-level reduction it would have upwardly varied or departed to
the same 37-month sentence it imposed without applying the additional one-
level reduction. When it imposed the 37-month sentence, the district court
stated that it had considered imposing an upward departure or variance. The
district court also stated that it had considered the factors set forth in 18
U.S.C. § 3553(a), and it found that “the aggravating factors outweigh those
mitigating factors, particularly in light of this defendant’s serious conviction
history.” However, the court noted that it was “taking into consideration the
fact that the sentencing commission is reviewing this issue regarding the
third point for acceptance.” Because the government had not moved for an
additional one-level reduction for acceptance of responsibility, the court
stated that it would not upwardly depart or vary, making “the sentence . . .
the same in that regard.”


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                                   No. 13-40862
         The transcript from the sentencing hearing indicates that the district
court was aware of a proposed amendment to the Guidelines. However, at the
time of Rios-Pintado’s sentencing, the Guidelines’ commentary and circuit
precedent dictated that the government could withhold the additional one-
level reduction for acceptance of responsibility where the defendant had not
waived his right to appeal. See Newson, 515 F.3d at 378. In an attempt to
rectify this conflict between the existing law and a potential change in the
law, the district court explained that it would have upwardly departed or
varied had the proposed amendment to the Sentencing Guidelines been
applicable, making “the sentence . . . the same in that regard.” This
statement clearly indicates that the district court would have upwardly
varied or departed from the 27 to 33 month Guideline range, if the one-level
reduction applied, to impose the same 37-month sentence Rios-Pintado
received without it.
         Here, the record shows that the district court had a particular sentence
in mind and would have imposed it, notwithstanding the error. Ibarra-Luna,
628 F.3d at 718. Further, the district court would have imposed a sentence
outside the Guideline range for the same reasons that it imposed the
sentence at the top of the Guideline range, based on its finding that “the
aggravating factors outweigh [the] mitigating factors, particularly in light of
[Rios-Pintado’s] serious conviction history.” Therefore, the sentence was not
influenced in any way by the erroneous Guideline calculation. Id. at 719.
Accordingly, the government has met its burden of demonstrating harmless
error.
                                 CONCLUSION
         For the foregoing reasons, Rios-Pintado’s sentence is AFFIRMED.




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