IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60509

Summary Calendar

UBALDO OLGUIN PADILLA,

Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:

Ubaldo Olguin Padilla is a native and citizen of Mexico admitted to the 

United States as a lawful permanent resident in 1992. The Board of 

Immigration Appeals (BIA) affirmed the immigration judge’s (IJ) finding of 

removability and discretionary denial of Padilla’s application for cancellation 

of removal. Padilla was found to be removable based on a finding that his 2011 

Texas conviction for possession of methamphetamine with intent to deliver was

a violation of a state law “relating to a controlled substance” as defined in the 

Controlled Substances Act (CSA). 8 U.S.C. § 1182(a)(2)(A)(i)(II); see TEX.

HEALTH & SAFETY CODE § 481.112. In his petition for review, Padilla contends

that § 481.112 does not “relate to” a federally controlled substance because it 

United States Court of Appeals

Fifth Circuit

FILED

September 12, 2019

Lyle W. Cayce

Clerk

 Case: 18-60509 Document: 00515115580 Page: 1 Date Filed: 09/12/2019
No. 18-60509

2

punishes, in the least, an offer to sell drugs that turn out to be counterfeit,

whereas the CSA does not punish delivery of simulated or fake drugs. See 

Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273, 275 (BIA 2010). Padilla also 

challenges the BIA’s denial of his request for cancellation of removal.

I.

We first address whether Padilla’s state conviction for possession of meth 

with intent to deliver was an offense “relating to a controlled substance” that 

rendered him removable. 8 U.S.C. § 1182(a)(2)(A)(i)(II). It was. Amolegbe v. 

Holder, 319 F. App’x 344, 344-45 (5th Cir. 2009) (holding that a Texas 

conviction for delivery of cocaine “constitutes a state crime ‘relating to a 

controlled substance’”).1 The premise of Padilla’s argument—that delivery 

under § 481.112 includes an offer to sell fake or counterfeit drugs—is 

erroneous. Regardless whether an offered substance ends up being counterfeit

as a factual matter, in terms of the elements of the offense an offer to sell is an 

offer to sell an actual Penalty Group 1 drug. See § 481.112(a) (prohibiting the 

manufacture, delivery, or possession with intent to deliver of “a controlled 

substance listed in Penalty Group 1”); Stewart v. State, 718 S.W.2d 286, 288 

(Tex. Crim. App. 1986) (holding that delivery of a controlled substance by offer 

to sell “is complete when, by words or deed, a person knowingly or intentionally 

offers to sell what he states is a controlled substance”) (emphasis added). The 

nature of the substance ultimately delivered is immaterial and need not be 

proven. See Iniguez v. State, 835 S.W.2d 167, 171 (Tex. App.—Houston [1st 

Dist.] 1992) (holding that an offer to sell satisfies § 481.112 “regardless of . . . 

whether the substance transferred is an actual controlled substance or not”). 

 

1 Although an unpublished opinion issued on or after January 1, 1996, is generally not 

controlling precedent, it may be considered as persuasive authority. See Ballard v. Burton, 

444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

 Case: 18-60509 Document: 00515115580 Page: 2 Date Filed: 09/12/2019
No. 18-60509

3

Padilla points to no Texas case applying § 481.112 to an offer to sell that 

did not propose the transfer of an actual drug.2 Rodriguez v. State, 879 S.W.2d 

283 (Tex. App.—Houston [14th Dist.] 1994), involved an offer to sell undercover 

agents an actual controlled substance—cocaine—but flour ended up being 

delivered. Rodriguez, 879 S.W.2d at 284. The appellate court reversed the 

defendant’s conviction for delivery under § 482.112, concluding that the more 

specific statute addressing delivery of simulated drugs (§ 482.002) applied. Id.

at 285–86. If anything, Rodriguez shows that § 481.112 does not reach offers 

to sell counterfeit drugs as the court said the simulated drug offense governed. 

And although holding that the more specific offense displaced § 481.112 

because the actual delivery was for fake drugs, it still recognized that as a 

general matter the defendant “was subject to conviction under Section 481.112 

for offering to sell a controlled substance.” Id. at 285. 

Nor does Whitfield v. State, 916 S.W.2d 49 (Tex. App.—Houston [1st. 

Dist.] 1996), support Padilla’s argument that § 481.112 covers conduct 

unrelated to a controlled substance. Like Rodriguez, Whitfield involved a 

transaction between several coconspirators and undercover agents for what 

was held out to be cocaine but turned out not to be a controlled substance at 

all (it was duct-taped dominoes). Id. at 50-51. As in Rodriguez, Whitfield was 

convicted under § 481.112 for delivery (by offer to sell) of a controlled substance 

and argued on appeal that he should instead have been convicted under 

§ 482.002 for delivering a simulated controlled substance. Id. at 51. The state 

 

2 Nor does In re Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010), help Padilla. 

Sanchez-Cornejo was initially found removable based on his conviction for an “aggravated 

felony,” namely delivery by actual transfer of simulated cocaine under § 482.002. 25 I. & N. 

Dec. at 273-74. Vacating the removal order, the BIA held that “[t]he delivery of a simulated 

controlled substance is not an offense that is punishable under the CSA.” Id. at 275. But

Sanchez-Cornejo concerned the definition of “aggravated felony” and involved a conviction 

under § 482.002, not § 481.112. It says nothing about whether a conviction under the latter 

categorically relates to a controlled substance.

 Case: 18-60509 Document: 00515115580 Page: 3 Date Filed: 09/12/2019
No. 18-60509

4

court held that Whitfield was subject to conviction under § 481.112 for 

“delivery by offering to sell a controlled substance.”3 Id. at 52 (emphasis in 

original).

Texas caselaw thus confirms what the statutory language and common 

sense tell us: offering to sell a drug is a crime only when the seller purports to 

be offering a real controlled substance. Because the state requires an offer to 

sell a Penalty Group 1 substance, § 481.112 relates to “a drug or other 

substance, or immediate precursor, included in [the CSA] schedule[s].” 21 

U.S.C. § 802(6). Padilla fails to show that the BIA erred in finding that his 

Texas drug delivery conviction renders him removable. See Lopez-Gomez v. 

Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).

II.

We lack jurisdiction to review the BIA’s discretionary decision to deny 

cancellation of removal. See Tula Rubio v. Lynch, 787 F.3d 288, 290 (5th Cir. 

2015). Padilla cites only factfinding error by the IJ, not legal or constitutional 

error, and, in any event, the IJ’s error was not adopted or relied upon by the 

BIA, whose order we review. See Vasquez-Martinez v. Holder, 564 F.3d 712, 

716 (5th Cir. 2009); Sattani v. Holder, 749 F.3d 368, 370, 372 (5th Cir. 2014); 

Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997). 

* * *

The petition for review is DENIED.

 

3 The result was different than Rodriguez because Whitfield was a middleman who 

did not participate in the actual drug transaction and thus did not have the intent to deliver 

a simulated substance that § 482.002 requires. 916 SW.2d at 52. 

 Case: 18-60509 Document: 00515115580 Page: 4 Date Filed: 09/12/2019