United States v. Anthony Foulks , 747 F.3d 914 ( 2014 )

Case: 13-10399 Document: 00512556631 Page: 1 Date Filed: 03/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-10399 FILED
March 11, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff – Appellee
v.
ANTHONY DALE FOULKS,
Defendant – Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:
Anthony Dale Foulks pleaded guilty to conspiracy to distribute and to
possess with the intent to distribute methamphetamine. The district court
sentenced him to 185 months in prison, and he now appeals.
In his sole point of error, Foulks argues that the district court erred by
imposing a two-level enhancement pursuant to § 2D1.1(b)(5) of the United
States Sentencing Guidelines, which applies if, inter alia, the offense “involved
the importation of . . . methamphetamine.” We review the application of the
Guidelines de novo and factual findings for clear error. United States v.
Serfass, 684 F.3d 548, 550 (5th Cir.), cert. denied, 133 S. Ct. 623 (2012).
In United States v. Rodriguez, 666 F.3d 944, 946 (5th Cir. 2012), we
explained that “[t]he scope of actions that ‘involve’ the importation of drugs is
Case: 13-10399 Document: 00512556631 Page: 2 Date Filed: 03/11/2014
No. 13-10399
larger than the scope of those that constitute the actual importation.” We
concluded that the defendant’s “proximity, familiarity, and repeated business
with the importers justifie[d] the enhancement.” Id. at 946-47. Based on
Rodriguez, Foulks argues that the enhancement applies only if a defendant
has “proximity, familiarity, and repeated business with the importers.”
However, Rodriguez did not hold that these factors were required.
More importantly, in Serfass we held that the enhancement applied to a
defendant who possessed and distributed imported methamphetamine, even
absent any showing that he knew it was imported. See 684 F.3d at 549-50, 553
(“[A] defendant who possesses methamphetamine that had itself been
unlawfully imported is subject to the enhancement, whether or not he knew of
that importation.”). Furthermore, we applied the enhancement even though
the person from whom the defendant purchased the methamphetamine had
not personally imported it. See id. at 553-54. We now make explicit what was
at least implied in Serfass, and what has been recognized in at least two of our
subsequent unpublished opinions and by the Ninth Circuit: distribution (or
possession with intent to distribute) of imported methamphetamine, even
without more, may subject a defendant to the § 2D1.1(b)(5) enhancement. See
United States v. Rodden, 481 F. App’x 985, 985 (5th Cir. 2012) (“The fact that
the methamphetamine was imported was enough to warrant the
enhancement.”); United States v. Castillo, 536 F. App’x 500, 501 (5th Cir. 2013);
United States v. Biao Huang, 687 F.3d 1197, 1206 (9th Cir. 2012) (“[A]
defendant need not be personally involved in the importation of illegal drugs
to receive an enhancement under § 2D1.1(b)(5); it is enough for the government
to show that the drugs were imported.”). Because the methamphetamine
Foulks possessed was imported from Mexico, the enhancement was properly
applied. The judgment of the district court is AFFIRMED.
2