United States v. Avila ( 2023 )

Case: 22-50553 Document: 00516640151 Page: 1 Date Filed: 02/09/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50553
Summary Calendar FILED
____________ February 9, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Carlos Avila,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:21-CR-49-8
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Carlos Avila pleaded guilty to conspiracy to possess at least 50 grams
of methamphetamine with intent to distribute and was sentenced to 200
months of imprisonment and five years of supervised release. On appeal, he
challenges the district court’s application of the two-level enhancement
pursuant to U.S.S.G. § 2D1.1(b)(5) for importation of methamphetamine,
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50553 Document: 00516640151 Page: 2 Date Filed: 02/09/2023
No. 22-50553
arguing that there was no evidence to show that he knew the
methamphetamine was imported. The Government has moved for summary
affirmance or, alternatively, an extension of time to file a brief.
As Avila acknowledges, his argument is foreclosed by United States v.
Serfass, 684 F.3d 548, 552 (5th Cir. 2012), which held that the § 2D1.1(b)(5)
enhancement applies “regardless of whether the defendant had knowledge
of [the drug] importation.” Accordingly, the Government’s motion for
summary affirmance is GRANTED, the Government’s alternative motion
for an extension of time to file a brief is DENIED, and the judgment of the
district court is AFFIRMED.
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