No Realistic Possibility that Texas Possession With Intent to Distribute Was Not an Aggravated Felony or § 2L1.2 DTO
The panel acknowledges that a defendant can be convicted under the Texas possession with intent to distribute (“PWID”) statute, Texas Health and Safety Code section 481.112(a), for conduct that would not qualify as a federal drug trafficking offense (“DTO”). In other words, Texas PWID is broader than a federal DTO. Texas PWID includes possession with intent to dispense, which includes administering a controlled substance in the presence of a practitioner. This is different than the administering encompassed by the federal DTO definition of dispensing, which applies only to the administration of a controlled substance pursuant to a practitioner’s lawful order. See 21 U.S.C. § 802(10).
Even though Texas PWID does not have as an element the administration of a controlled substance pursuant to a practitioner’s lawful order, the panel applies the modified categorical approach to narrow Teran-Salas’ offense to possession of more than four grams of cocaine with intent to deliver. (The panel does not explain how this is consistent with Descamps.)
Applying a “common-sense approach,” the panel holds that, “based on the elements of his conviction, Teran-Salas does not establish a realistic probability that Texas would prosecute his crime under an ‘administering’ theory in a way that does not also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing guidelines.” Instead, the panel believes Teran-Salas only establishes “a theoretical possibility that the Texas statute criminalizes conduct that would not qualify as a [DTO, since] there is not a realistic probability that Teran-Salas was prosecuted for engaging in medical care or research that involved administering cocaine in amounts greater than four grams.”
The panel affirms the 16-level enhancement and also favorably cites unpublished decisions that made similar decisions with regard to an Illinois drug trafficking statute (United States v. Ruiz Sanchez, No. 12-40199, 2014 WL 2925157, at *1 (5th Cir. June 30, 2014) (per curiam) (unpublished)) and a Washington statute (United States v. Villeda-Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per curiam).