United States v. Jesus Ruiz-Sanchez , 574 F. App'x 424 ( 2014 )

Case: 12-40199 Document: 00512681469 Page: 1 Date Filed: 06/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-40199 FILED
Summary Calendar June 30, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS RUIZ-SANCHEZ, also known as Rafael Sanchez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1707-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM: *
Jesus Ruiz-Sanchez pleaded guilty to illegal presence in the United
States after removal and was sentenced to 41 months of imprisonment. We
previously affirmed; however, the Supreme Court granted certiorari, vacated
our opinion, and remanded for further consideration in light of Descamps v.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 12-40199
United States, 133 S. Ct. 2276 (2013). See United States v. Ruiz-Sanchez, 505
F. App’x 370 (5th Cir.), vacated and remanded, 134 S. Ct. 60 (2013).
As an initial matter, the Government argues that Ruiz-Sanchez invited
or waived the alleged error. We conclude that defense counsel did not invite or
waive the alleged error; however, because counsel failed to object on this basis
in the district court, our review is for plain error. See United States v. Arviso-
Mata, 442 F.3d 382, 384 (5th Cir. 2006). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If the
appellant makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
Ruiz-Sanchez appeals the district court’s determination that a prior
Illinois conviction qualified as a drug trafficking offense and the resulting
imposition of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2011).
He argues that the Illinois statute at issue, 720 ILL. COMP. STAT.
570/401(a)(2)(D), criminalizes some kinds conduct, such as administering a
controlled substance, that do not qualify as a drug trafficking offense under
§ 2L1.2(b)(1)(A)(i). However, Ruiz-Sanchez has not pointed to any Illinois case
applying this statute in an “administering” situation. A “theoretical
possibility” that a statute encompasses other types of conduct that would not
qualify is insufficient to avoid application of the enhancement. See United
States v. Carrasco-Tercero, 745 F.3d 192, 197-98 (5th Cir. 2014). We agree with
a recent unpublished decision of this court finding that any error in applying
the enhancement on this basis was not clear or obvious error. See United
States v. Villeda-Mejia, No. 13-40089, ___ F. App’x ___, 2014 WL 1229953 (5th
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No. 12-40199
Cir. Mar. 26, 2014). Ruiz-Sanchez has not shown that the district court plainly
erred in applying the enhancement. See Puckett, 556 U.S. at 135.
AFFIRMED.
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