### 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 t he 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 i n the United States after removal , in violation of 8 U.S.C. § 1326(a), (b), Elva Rosa Carrizales

Ma rtinez was sentenced to 76 months of imprisonment. The district court enhanced C arrizales’ 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* Pursuant to 5th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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 Case: 13-20760 Document: 00512996156 Page: 1 Date Filed: 04/07/2015No. 13

- 20760 conviction of a felony

- drug

- traffic king offense. The enhan cement was based on Carrizales’ two 1993 convictions of del ivery 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

– 1 9 (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. I d. Carrizales asserts that, because she committed her state crimes before

a n amendment to the G uideline went int o 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 . B ecause 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 t he Guideline

. For her other issue, Carrizales c laims § 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 state

2 Case: 13-20760 Document: 00512996156 Page: 2 Date Filed: 04/07/2015No. 13

- 20760

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 contro lled 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 docu ments pertaining to Carrizales’ prior convictions include the indictmen ts and judgments of convictions , which may be consider ed under the modified categorical approach, E.g., United States v. Garcia

– Arellano , 522 F.3d 477, 480

– 81 (5th Cir. 2008). These documents allow ascertain ing t ha t Carrizales was convicted of deliv ery 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 wa s a drug

- trafficking offense for p urposes 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

a s 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, s he 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 insufficien t. 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 err or in

3 Case: 13-20760 Document: 00512996156 Page: 3 Date Filed: 04/07/2015No. 13

- 20760 determining that Carrizales had a prior conviction that constitutes a drug

trafficking offense for purposes of the enhancement. AFFIRMED.

4 Case: 13-20760 Document: 00512996156 Page: 4 Date Filed: 04/07/2015