USA v. Jaime Silva-Mendoza, No. 15-41129 (5th Cir. 2016)
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Case: 15-41129 Document: 00513472060 Page: 1 Date Filed: 04/20/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-41129 Conference Calendar United States Court of Appeals Fifth Circuit FILED April 20, 2016 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. JAIME SILVA-MENDOZA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:15-CR-442-1 Before REAVLEY, ELROD, and HAYNES, Circuit Judges. PER CURIAM: * Appealing the judgment in a criminal case, Jaime Silva-Mendoza raises an argument that is foreclosed by United States v. Teran-Salas, 767 F.3d 453, 458-62 (5th Cir. 2014), cert. denied, 135 S. Ct. 1892 (2015). In Teran-Salas, we determined that the appellant was not entitled to relief based merely on the existence of a theoretical possibility that a defendant could be convicted under Texas Health & Safety Code § 481.112(a) for conduct that would not qualify as 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 15-41129 Document: 00513472060 Page: 2 Date Filed: 04/20/2016 No. 15-41129 a federal drug trafficking offense. See Teran-Salas, 767 F.3d at 458. SilvaMendoza has not demonstrated “a realistic probability that Texas would prosecute under an ‘administering’ theory in a way that does not also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing guidelines.” See id. at 461-62. Silva-Mendoza also raises an argument that is foreclosed by our holding in United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir.), cert. denied, 136 S. Ct. 533 (2015). In Martinez-Lugo, 782 F.3d at 204-05, we held that an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior felony conviction of a drug trafficking offense is warranted regardless whether the conviction for the prior offense required proof of remuneration or commercial activity. Accordingly, the Government’s unopposed motion for summary affirmance is GRANTED, the alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2
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