United States v. Trinidad Jaimes-Jaimes

611 F. App'x 205

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 27, 2015
• Docket: 13-41248
• Status: Unpublished

Opinion

PER CURIAM: *

Trinidad Jaimes-Jaimes appeals the sentence imposed following his guilty plea conviction for being found unlawfully in the United States after deportation in violation of 8 U.S.C. § 1326. He contends that the district court plainly erred when it enhanced his sentence based on a finding that his 1996 Louisiana conviction for possession with intent to distribute marijuana was a felony drug trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(l)(A)(i). Relying on the Supreme Court’s decision in Moncrieffe v. Holder; — U.S. -, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), as well as our decision in United States v. Garzar-Lopez, 410 F.3d 268 (5th Cir.2005), he contends that the Louisiana statute under which he was convicted is broader than the drug trafficking offense definition set forth in the commentary to § 2L1.2 because it proscribes the possession with intent to give away and administer a controlled substance. Because Jaimes-Jaimes did not object to the § 2L1.2(b)(l)(A)(i) enhancement in the district court, we review for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005), superseded, by regulation on other grounds as stat-. ed in United States v. Pimpton, 558 Fed.Appx. 335, 337-38 (5th Cir.2013).

In United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir.2015), petition for cert. filed (June 24, 2015) (No. 14-10355), we held that an enhancement under § 2L1.2(b)(l)(A)(i) is warranted regardless whether the conviction for the prior drug trafficking offense required proof of remuneration or commercial activity. Further, Jaimes-Jaimes has failed to establish a realistic probability that Louisiana would prosecute an individual under LA. REV. STAT. ANN. § 40:966(A)(1) for administering a controlled substance “in a way that does not also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing guidelines.” United States v. Teran-Salas, 767 F.3d 453, 460-62 (5th Cir.2014), cert. denied, — U.S. -, 135 S.Ct. 1892, 191 L.Ed.2d 767 (2015). Therefore, Jaimes-Jaimes cannot show error, plain or otherwise. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

AFFIRMED.

* Pursuant to 5th Cut. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.