     Case: 13-40674      Document: 00512890731         Page: 1    Date Filed: 01/06/2015




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

                                    No. 13-40674                              FILED
                                  Summary Calendar                      January 6, 2015
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HILARIO TORRES-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-108-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Hilario Torres-Hernandez appeals the 57-month within-guidelines
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. Torres-Hernandez argues that his Texas conviction for
possession with intent to deliver cocaine did not qualify as a drug trafficking


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40674    Document: 00512890731     Page: 2   Date Filed: 01/06/2015


                                 No. 13-40674

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 Torres-
Hernandez 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).
      In United States v. Teran-Salas, 767 F.3d 453, 460-62 (5th Cir. 2014), we
rejected the identical argument raised by Torres-Hernandez and stated that
“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.
We determined that the Texas offense of possession with the intent to deliver
cocaine was a drug trafficking offense under § 2L1.2 and an aggravated felony
under § 1326(b)(2). Id. at 461-62 & n.5.
      Torres-Hernandez 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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