United States v. Elva Carrizales-Martinez , 599 F. App'x 185 ( 2015 )

Case: 13-20760 Document: 00512996156 Page: 1 Date Filed: 04/07/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20760 April 7, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ELVA ROSA CARRIZALES-MARTINEZ, also known as Elva Rosa
Benivamonde, also known as Elva Rosa Carrizales De Benivamonde, also
known as Elva Rosa Carrizales,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-314-1
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Following being convicted of being present illegally in the United States
after removal, in violation of 8 U.S.C. § 1326(a), (b), Elva Rosa Carrizales-
Martinez was sentenced to 76 months of imprisonment. The district court
enhanced Carrizales’ offense level by 16, pursuant to advisory Sentencing
Guidelines § 2L1.2(b)(1)(A)(i), on the basis that Carrizales had a previous
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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conviction of a felony-drug-trafficking offense. The enhancement was based on
Carrizales’ two 1993 convictions of delivery of a controlled substance (cocaine),
in violation of Tex. Health & Safety Code Ann. § 481.112(a).
Carrizales presents two issues regarding the enhancement. As she
concedes, plain error review applies to her contentions because she did not
object in district court to the application of the enhancement. E.g., United
States v. Escalante-Reyes, 689 F.3d 415, 418–19 (5th Cir. 2012) (en banc). To
establish reversible plain error, she must show a forfeited error that was clear
or obvious, and affected her substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If she makes such a showing, this court has discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
Carrizales asserts that, because she committed her state crimes before
an amendment to the Guideline went into effect in 2008, application of its
amended version violates her rights under the Ex Post Facto Clause, U.S.
Const. art. I, § 9, cl. 3. For ex-post-facto purposes, the relevant offense is
Carrizales’ illegal reentry, not her prior Texas convictions. See, e.g., Gryger v.
Burke, 334 U.S. 728, 732 (1948). The Presentence Investigation Report states
that Carrizales illegally reentered the United States on an unknown date in
1999. Because a violation of 8 U.S.C. § 1326 is a continuing offense, she
violated the statute by remaining in the United States illegally until she was
found in 2013. United States v. Santana–Castellano, 74 F.3d 593, 597 (5th Cir.
1996). In view of the foregoing, there was no clear or obvious error in applying
the amended version of the Guideline.
For her other issue, Carrizales claims § 481.112(a) is a divisible statute
which encompasses offenses that do not fall within the applicable definition of
a drug-trafficking offense. In that regard, she maintains, based on the state-
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court documents of record, it is not possible to determine which part of the
Texas statute she was convicted of violating. She asserts that her prior
convictions do not warrant the enhancement because the Texas statute can be
violated by administering a controlled substance.
Because § 481.112(a) is a divisible statute, the modified categorical
approach is applied. United States v. Teran-Salas, 767 F.3d 453, 459 (5th Cir.
2014). The state-court documents pertaining to Carrizales’ prior convictions
include the indictments and judgments of convictions, which may be
considered under the modified categorical approach, E.g., United States v.
Garcia–Arellano, 522 F.3d 477, 480–81 (5th Cir. 2008). These documents allow
ascertaining that Carrizales was convicted of delivery of a controlled
substance.
In Teran-Salas, 767 F.3d at 460–62, our court determined that a
conviction under § 481.112(a) of possession with intent to deliver a controlled
substance was a drug-trafficking offense for purposes of the Guideline
§ 2L1.2(b)(1)(A)(i) enhancement; that reasoning is dispositive here. Like
appellant in Teran-Salas, Carrizales has failed to show it is a realistic
possibility that a person either would be prosecuted for “administering” cocaine
as that term is defined under the Texas statute or could “administer” cocaine
in a manner that did not also constitute “dispensing” or “distributing” under
the Guidelines. Teran-Salas, 522 F.3d at 460–62. Moreover, she has identified
no prior Texas case applying the statute in an “administering” situation. E.g.,
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.
E.g., United States v. Carrasco-Tercero, 745 F.3d 192, 197–98 (5th Cir. 2014).
Accordingly, the district court did not commit clear or obvious error in
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determining that Carrizales had a prior conviction that constitutes a drug-
trafficking offense for purposes of the enhancement.
AFFIRMED.
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