IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20760

UNITED STATES OF AMERICA,

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 CarrizalesMartinez 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.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2015

Lyle W. Cayce

Clerk

 

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No. 13-20760

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 state2

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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 drugtrafficking offense for purposes of the enhancement. 

AFFIRMED.

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