United States v. Edil Avila-Cruz, 606 F. App'x 261

Avila was convicted and sentenced for unlawful reentry after removal under 8 U.S.C. § 1326; the district court entered judgment under § 1326(b)(2) (aggravated-felony removal).
His prior state conviction was for delivery of a controlled substance based on an indictment alleging transfer, constructive transfer, and offering to sell.
An offering-to-sell theory would not qualify as a Controlled Substances Act felony; thus the prior conviction could have been obtained on a non-aggravated-felony theory. See United States v. Ibarra-Luna.
Avila did not raise the § 1326(b) designation issue below, so the court reviewed for plain error (Puckett standard).
The parties agreed the conviction should have been under § 1326(b)(1) (maximum 10 years), but Avila was sentenced to 36 months—within the 10-year maximum—so he could not show prejudice necessary for plain-error relief; the judgment must be corrected to reflect § 1326(b)(1).
Avila also challenged a 16-level U.S.S.G. § 2L1.2(b)(1)(A)(i) enhancement, arguing his Texas delivery statute could be violated by administering a drug; the Fifth Circuit’s Teran-Salas decision forecloses that argument as not a realistic possibility.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Avila’s prior conviction supported conviction under § 1326(b)(2) for removal following an aggravated felony	Avila: prior conviction could have rested on offering-to-sell, which is not an aggravated felony, so § 1326(b)(2) was improper	Government: prior conviction supports aggravated-felony designation	Court: conviction should have been entered under § 1326(b)(1), but no plain error because sentence (36 months) is within § 1326(b)(1) maximum and record shows no prejudice; remand to correct written judgment
Whether Avila’s prior Texas drug conviction qualifies for a 16-level § 2L1.2 enhancement (drug trafficking offense)	Avila: Texas statute could be violated by administering, which is outside § 2L1.2 and aggravated-felony definitions	Government: realistic possibility of conviction under drug-trafficking theories (transfer/constructive transfer/offering-to-sell) means enhancement applies	Court: Teran-Salas controls — no realistic possibility defendant was convicted under administering theory; enhancement stands; Avila concedes Teran-Salas forecloses this claim

United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir.) (offering-to-sell theory may negate aggravated-felony status under CSA)
United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir.) (plain-error review standards for preserved forfeited arguments)
Puckett v. United States, 556 U.S. 129 (2010) (plain-error test requiring clear or obvious error that affects substantial rights)
United States v. Teran-Salas, 767 F.3d 453 (5th Cir.) (statute’s administering theory is not a realistic possibility; prior Texas delivery conviction qualifies as drug trafficking for § 2L1.2)
United States v. Mendoza-Perez, [citation="496 F. App'x 431"] (5th Cir.) (remand for correction of written judgment to reflect correct statutory subsection)