United States v. Mario Miranda-Ontiveros ( 2019 )

Case: 18-40392 Document: 00515233836 Page: 1 Date Filed: 12/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40392 FILED
Summary Calendar December 12, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO RAYMUNDO MIRANDA-ONTIVEROS ,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:16-CR-178-3
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
A jury convicted Mario Raymundo Miranda-Ontiveros of conspiring to
possess with the intent to distribute methamphetamine in violation of 21
U.S.C. § 846. The district court sentenced him to 360 months in prison. For
the first time on appeal, he challenges the district court’s application of the
two-level importation enhancement under U.S.S.G. § 2D1.1(b)(5). We review
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40392 Document: 00515233836 Page: 2 Date Filed: 12/12/2019
No. 18-40392
Miranda-Ontiveros’s argument that § 2D1.1(b)(5) has a mens rea
requirement is foreclosed by United States v. Serfass, 684 F.3d 548, 552 (5th
Cir. 2012), and United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014).
Because Miranda-Ontiveros’s remaining arguments regarding the
§ 2D1.1(b)(5) enhancement raise factual issues which could have been resolved
by the district court upon proper objection at sentencing, he cannot show plain
error. See Serfass, 684 F.3d at 553-54; United States v. Lopez, 923 F.2d 47, 50
(5th Cir. 1991).
The judgment of the district court is AFFIRMED.
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