IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20758

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LEOCADIO MAGALLON PEREZ, also known as Locadio Magallon, also 

known as Locadio Perez Magallon, also known as Leocadio Magallon-Perez, 

also known as Locadio Magailon,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CR-228-1

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Leocadio Magallon Perez pleaded guilty to being found illegally in the 

United States after previous deportation and was sentenced to 40 months of 

imprisonment. Perez appeals his sentence, contending that the district court 

erred in imposing a 16-level enhancement pursuant to U.S.S.G. 

§ 2L1.2(b)(1)(A)(i) on account of his prior conviction for delivery by actual 

* 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

January 27, 2015

Lyle W. Cayce

Clerk

 

 Case: 13-20758 Document: 00512917004 Page: 1 Date Filed: 01/27/2015
No. 13-20758

transfer of more than 200 grams and less than 400 grams of cocaine. Perez 

argues that the statute under which he was convicted, Texas Health & Safety 

Code § 48.112, is a divisible statute that encompasses offenses that do not fall 

within the applicable definition of a “drug trafficking offense.” See § 2L1.2, 

comment. (n.1(B)(iv)). He asserts that his prior conviction does not warrant 

the enhancement because the Texas statute can be violated by administering 

a controlled substance.

Because Perez did not raise such an argument in the district court, 

review is for plain error. See United States v. Escalante-Reyes, 689 F.3d 415, 

418-19 (5th Cir. 2012) (en banc). To establish plain error, he must show a 

forfeited error that is clear or obvious, rather than subject to reasonable 

dispute, and the clear or obvious error must have affected his substantial 

rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he 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. See Puckett, 556 U.S. at 135.

Perez has failed to show that there 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. See United 

States v. Teran-Salas, 767 F.3d 453, 460-62 (5th Cir. 2014). Moreover, he has 

identified no prior Texas case applying the statute in an “administering” 

situation. See 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. See United States v. Carrasco-Tercero, 745 F.3d 192, 197-98 

(5th Cir. 2014).

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No. 13-20758

In view of the foregoing, the district court did not plainly err in 

determining that Perez had a prior conviction that constitutes a drug 

trafficking offense for purposes of the § 2L1.2(b)(1)(A)(i) enhancement. See 

Teran-Salas, 767 F.3d at 461-62 & n.5. Accordingly, the judgment of the 

district court is AFFIRMED.

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