     Case: 15-10876      Document: 00513833330         Page: 1    Date Filed: 01/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-10876                                 FILED
                                  Summary Calendar                        January 12, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARMANDO GARCIA-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-49-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Armando Garcia-Garcia pleaded guilty to illegal reentry, in violation of
8 U.S.C. § 1326(b), and the district court varied below the advisory guidelines
range and sentenced him to 41 months in prison. Although Garcia-Garcia
challenged in the district court the application of a 16-level “crime of violence”
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2014) based on his prior Texas
drug conviction, he raises a new argument on appeal.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10876     Document: 00513833330     Page: 2   Date Filed: 01/12/2017


                                  No. 15-10876

      Garcia-Garcia argues that his prior conviction for possession with intent
to deliver a controlled substance under Texas Health & Safety Code Annotated
§ 481.112(a) does not qualify as an enumerated crime of violence, a “drug
trafficking offense” as defined in § 2L1.2, comment. (n.(1)(b)(iv)) (2014).
Although Garcia-Garcia asserts that United States v. Ford, 509 F.3d 714, 717-
18 (5th Cir. 2007), is not controlling, he believes that he cannot show plain
error because this court has not yet limited Ford. He raises the issue to
preserve review and argues that, because the error affects his substantial
rights, this court should exercise discretion to reverse the error.
      Because this issue is raised for the first time on appeal, we review for
plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). Neither
this court nor the Supreme Court has addressed this issue, which is subject to
reasonable dispute. A claim subject to reasonable dispute cannot succeed on
plain error review. Puckett, 556 U.S. at 135; United States v. Fields, 777 F.3d
799, 802 (5th Cir. 2015).
      AFFIRMED.




                                        2
