United States v. Damian Alcala ( 2016 )

Case: 16-10074 Document: 00513637906 Page: 1 Date Filed: 08/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10074
Fifth Circuit
FILED
Summary Calendar August 15, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DAMIAN ERIK ALCALA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CR-70-2
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Damian Erik Alcala pleaded guilty to one count of conspiracy to
distribute and to possess with intent to distribute 500 grams or more of a
mixture or substance containing methamphetamine, and he received a within-
guidelines sentence of 324 months in prison. On appeal, he argues that the
district court clearly erred by imposing a two-level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(5) based on a conclusion that the methamphetamine was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-10074 Document: 00513637906 Page: 2 Date Filed: 08/15/2016
No. 16-10074
imported. He also argues that application of the actual methamphetamine to
marijuana equivalent multiplier is arbitrary and thus violates due process.
The Government moves for summary affirmance, asserting that the
importation enhancement was properly applied and that the marijuana
equivalency ratio for actual methamphetamine is not arbitrary.
Pursuant to § 2D1.1(b)(5), a two-level upward adjustment should be
assessed if the offense of conviction “involved the importation of amphetamine
or methamphetamine.” We have held that the enhancement applies
“regardless of whether the defendant had knowledge of that importation.”
United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012). Although Alcala
asserts that Serfass was wrongly decided, one panel of this court may not
overrule a decision made by a prior panel absent en banc consideration, a
change in relevant statutory law, or an intervening decision by the Supreme
Court. See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002).
As for Alcala’s assertion that the Government was required to prove that the
importation constituted relevant conduct attributable to him under U.S.S.G.
§ 1B1.3, “distribution (or possession with intent to distribute) of imported
methamphetamine, even without more, may subject a defendant to the
§ 2D1.1(b)(5) enhancement.” United States v. Foulks, 747 F.3d 914, 915 (5th
Cir. 2014) (citations omitted).
As to Alcala’s second claim of error, § 2D1.1’s Drug Equivalency Tables
for Schedule I and II stimulants provide that one gram of a mixture or
substance containing methamphetamine is equivalent to two kilograms of
marijuana, whereas one gram of actual methamphetamine is equivalent to 20
kilograms of marijuana. § 2D1.1, comment. (n.8(D)). “In the case of a mixture
or substance containing . . . methamphetamine, use the offense level
determined by the entire weight of the mixture or substance, or the offense
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No. 16-10074
level determined by the weight of the . . . methamphetamine (actual),
whichever is greater.” Id. (quoting § 2D1.1(c) n.B). We have held that the 10-
to-1 ratio between actual methamphetamine and a substance containing
methamphetamine is not irrational or arbitrary and, as a result, does not
violate the Due Process Clause. United States v. Molina, 469 F.3d 408, 413-14
(5th Cir. 2006). Alcala thus has not shown error. See id.
Generally, our summary affirmance procedure is reserved for cases in
which the parties concede that relief on every issue raised is foreclosed by
circuit precedent. See, e.g., United States v. Houston, 625 F.3d 871, 873 n.2
(5th Cir. 2010) (noting the denial of summary affirmance where an issue was
not foreclosed). In this case, summary affirmance is inappropriate.
The judgment of the district court is AFFIRMED. The Government’s
motions for summary affirmance and for an extension of time to file an
appellate brief are DENIED.
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