     Case: 14-40002      Document: 00512805425         Page: 1    Date Filed: 10/16/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40002
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 16, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

OSCAR JAVIER CRUZ-CASTRO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-773-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Oscar Javier Cruz-Castro appeals the sentence of 40 months of
imprisonment imposed following his guilty-plea conviction for being an alien
found unlawfully present in the United States after deportation. See 8 U.S.C.
§ 1326. He challenges the district court’s 16-level enhancement to his offense
level under U.S.S.G. § 2L1.2(b)(1)(A)(i) for his prior Virginia conviction for
possession with intent to distribute a controlled substance. See VA. CODE ANN.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40002   Document: 00512805425      Page: 2    Date Filed: 10/16/2014


                                  No. 14-40002

§ 18.2-248. Specifically, he argues that an offense under the Virginia law does
not constitute a § 2L1.2(b)(1)(A)(i) drug trafficking offense because it includes
possession with intent to distribute only a small amount of narcotics or doing
so for no renumeration. Moreover, Cruz-Castro contends that the documents
relating to his conviction do not clarify the specific offense of his conviction.
       As Cruz-Castro concedes, our review is for plain error because he did not
object in the district court. To show plain error, Cruz-Castro must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). If he makes such
a showing, we have the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
       We previously considered this issue in United States v. Cortes-Tolentino,
No. 13-40943, 2014 WL 3930463, at *1 (5th Cir. Aug. 13, 2014), which, as an
unpublished decision, is not binding precedent but is instructive. See Ballard
v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006). In that case, we noted that
this court has not conclusively determined whether a prior conviction for giving
away a controlled substance would qualify as a drug trafficking offense under
§ 2L1.2. Cortes-Tolentino, 2014 WL 3930463 at *1. Because we have not made
such a determination, any error in the district court in applying the
enhancement would be neither clear nor obvious. See United States v. Ellis,
564 F.3d 370, 377-78 (5th Cir. 2009). Accordingly, Cruz-Castro cannot show
plain error, and the district court’s judgment is AFFIRMED.




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