United States v. Juan Giron-Guerrero , 588 F. App'x 365 ( 2014 )

Case: 14-40233 Document: 00512879303 Page: 1 Date Filed: 12/22/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40233
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 22, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JUAN GIRON-GUERRERO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-786-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Juan Giron-Guerrero (Giron) pleaded guilty to being found unlawfully
present in the United States following a prior deportation that was subsequent
to a conviction for an aggravated felony, and he was sentenced to 36 months of
imprisonment. Giron appeals the district court’s determination that his prior
Texas conviction for possession with intent to deliver a controlled substance
qualified as a drug trafficking offense warranting a 16-level enhancement
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40233 Document: 00512879303 Page: 2 Date Filed: 12/22/2014
No. 14-40233
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). He argues that the Texas statute
criminalizes the “administering” of drugs, which is not covered by the
Guideline. Because Giron preserved this argument in the district court, our
review is de novo. See United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir.)
(en banc), cert. denied, 134 S. Ct. 512 (2013).
Giron has failed to show that there is a realistic possibility that a person
either would be prosecuted for “administering” methamphetamine as that
term is defined under the Texas statute or could “administer”
methamphetamine 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).
Thus, the district court was correct in determining that Giron’s
conviction was 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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