     Case: 14-40018      Document: 00512907687         Page: 1    Date Filed: 01/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40018
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 20, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ELMER BANEGAS-ARIAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-651-1


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       Elmer Banegas-Arias appeals the 36-month below-guidelines sentence
imposed following his conviction for illegal reentry into the United States. 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.      Banegas-Arias argues that his Texas conviction for
delivery of a controlled substance did not qualify as a drug trafficking offense


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40018   Document: 00512907687     Page: 2   Date Filed: 01/20/2015


                                   No. 14-40018

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 similar reasons, the Texas offense does not qualify as an
aggravated felony under 8 U.S.C. § 1101(a)(43). Because Banegas-Arias 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).
        Our recent decision in United States v. Teran-Salas, 767 F.3d 453, 460-
62 (5th Cir. 2014), is dispositive here.      As we explained in Teran-Salas,
“conviction under the administer prong is not a realistic probability because no
previous Texas case has involved a conviction under this prong.” Id. at 461.
The Texas offense of possession with the intent to deliver cocaine is a drug
trafficking offense under § 2L1.2 and an aggravated felony. Id. at 461-62 &
n.5.
        Banegas-Arias fails to show that the district court plainly erred. See id.
Accordingly, the judgment of the district court is AFFIRMED.




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