     Case: 13-20407      Document: 00512914304         Page: 1    Date Filed: 01/26/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-20407
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 26, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GILBERTO OMAR GASPAR, also known as Gilberto Gaspar-Gutierrez, also
known as Omar Gaspar-Gilberto, also known as Gilberto Omar Gaspar-
Guetierrez, also known as Gilberto Omar Gaspar Gutierrez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-473-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Gilberto Omar Gaspar appeals the 45-month sentence imposed following
his conviction for illegal reentry after deportation. He challenges the 16-level
enhancement imposed pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) for having been
deported after being convicted of a drug trafficking offense. Gaspar argues
that his Texas conviction for delivery of cocaine did not qualify as a drug


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20407     Document: 00512914304      Page: 2   Date Filed: 01/26/2015


                                  No. 13-20407

trafficking offense because Texas’s definition of delivery is broader than the
definition of a drug trafficking offense under § 2L1.2. He asserts that the Texas
offense of delivery may be committed by “administering” a controlled
substance. He further contends that, for the same reasons, the Texas offense
does not qualify as an aggravated felony under 8 U.S.C. § 1326(b)(2).
      Because Gaspar failed to object to the enhancement in the district court,
we review for plain error. See United States v. Chavez-Hernandez, 671 F.3d
494, 497 (5th Cir. 2012). To establish plain error, he must show a forfeited
error that is clear or obvious, rather than subject to reasonable dispute, and
the clear or obvious error must have affected his substantial rights.          See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See Puckett,
556 U.S. at 135.
      Gaspar has failed to show 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. See United
States v. Teran-Salas, 767 F.3d 453, 460-62 (5th Cir. 2014), cert. filed, No. 14-
7593 (Dec. 15, 2014). Moreover, he has identified no prior Texas case applying
the statute in an “administering” situation. See 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).
      Gaspar fails to show that the district court plainly erred. See Teran-
Salas, 767 F.3d at 461-62 & n.5. Accordingly, the judgment of the district court
is AFFIRMED.



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