     Case: 13-20758         Document: 00512917004      Page: 1    Date Filed: 01/27/2015




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

                                                                                     FILED
                                                                                 January 27, 2015
                                    No. 13-20758
                                  Summary Calendar                                Lyle W. Cayce
                                                                                       Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LEOCADIO MAGALLON PEREZ, also known as Locadio Magallon, also
known as Locadio Perez Magallon, also known as Leocadio Magallon-Perez,
also known as Locadio Magailon,

                                                 Defendant-Appellant


                    Appeals from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:13-CR-228-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
        Leocadio Magallon Perez pleaded guilty to being found illegally in the
United States after previous deportation and was sentenced to 40 months of
imprisonment. Perez appeals his sentence, contending that the district court
erred       in   imposing    a   16-level   enhancement        pursuant     to    U.S.S.G.
§ 2L1.2(b)(1)(A)(i) on account of his prior conviction for delivery by actual


        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20758    Document: 00512917004      Page: 2   Date Filed: 01/27/2015


                                 No. 13-20758

transfer of more than 200 grams and less than 400 grams of cocaine. Perez
argues that the statute under which he was convicted, Texas Health & Safety
Code § 48.112, is a divisible statute that encompasses offenses that do not fall
within the applicable definition of a “drug trafficking offense.” See § 2L1.2,
comment. (n.1(B)(iv)). He asserts that his prior conviction does not warrant
the enhancement because the Texas statute can be violated by administering
a controlled substance.
      Because Perez did not raise such an argument in the district court,
review is for plain error. See United States v. Escalante-Reyes, 689 F.3d 415,
418-19 (5th Cir. 2012) (en banc). 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.
      Perez has failed to show that there 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). 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).




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    Case: 13-20758   Document: 00512917004    Page: 3   Date Filed: 01/27/2015


                               No. 13-20758

     In view of the foregoing, the district court did not plainly err in
determining that Perez had a prior conviction that constitutes a drug
trafficking offense for purposes of the § 2L1.2(b)(1)(A)(i) enhancement. See
Teran-Salas, 767 F.3d at 461-62 & n.5. Accordingly, the judgment of the
district court is AFFIRMED.




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