### 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) affirm ed the immigration judge ’s (IJ) finding of removability and d iscretionary denial of Padilla’s application for cancellation of removal. Padilla was found to be removable based on a f inding 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 T EX

. H EALTH & S AFETY C ODE § 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: 09/12/2019N o. 18

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2 punishes , in the least, an offer to sel l 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 , 31 9 F. App’x 344, 34 4

- 4 5 (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 substa nce 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 5 TH C IR

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3 Padilla points to no T exas 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 o ffer to sell undercover agents an actual controlled substance

— co caine

— 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. 11 2 , concluding that the more specific statute addressing deliver y of simulated drugs (§ 482.002) applie d

. Id.
at 285

– 86. If anything, Rodriguez shows that § 4 81 .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 u nder § 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

- C ornejo 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: 09/12/2019N o. 18

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4 court held that Whitfield was s ubject to conviction under § 481.112 for “delivery by offering to sell a controlled substance

. ” 3 Id . at 5 2 (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 wh en 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 B IA erred in finding that his Texas drug delivery conviction render s him removable

. See Lopez

- Gomez v. Ashcroft , 263 F.3d 442, 444 (5th Cir. 2001).
II. We lack jurisdiction to review the BIA’s discretio nary 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, n ot 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 de liver a simulated substance that § 482.002 requires. 916 SW.2d at 52. Case: 18-60509 Document: 00515115580 Page: 4 Date Filed: 09/12/2019