United States v. Ricky Madrigal ( 2016 )

Case: 15-11273 Document: 00513781722 Page: 1 Date Filed: 12/02/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11273 FILED
Summary Calendar December 2, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICKY MADRIGAL,
Defendant-Appellant
Cons. w/No. 15-11275
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICHARD MADRIGAL,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 2:98-CR-11-1
USDC No. 2:15-CR-70-1
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Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Richard Madrigal, also known as Ricky Madrigal, pleaded guilty to
conspiracy to possess with intent to distribute 500 grams or more of a mixture
or substance containing methamphetamine in violation of 21 U.S.C. § 846. The
district court sentenced Madrigal to 262 months of imprisonment followed by
a 5-year term of supervised release. Immediately after sentencing, Madrigal
pleaded “true” to having violated the terms of his supervised release in a prior
criminal case. The district court revoked his supervised release and sentenced
him to 12 months of imprisonment to run consecutively to the sentence
imposed in the conspiracy case.
On appeal, Madrigal challenges the district court’s application of the
importation enhancement under U.S.S.G. § 2D1.1(b)(5). Madrigal argues that
there is no evidence, direct or inferential, that he had knowledge that the
methamphetamine attributed to him came from Mexico. He further argues
that the enhancement should not apply because any importation did not
constitute relevant conduct under U.S.S.G. § 1B1.3.
Madrigal also appealed the revocation judgment, but his appellate brief
does not present any challenge to the revocation of his supervised release or
the resulting sentence. As such, he has waived any argument he may have
had on appeal with respect to revocation. United States v. Martinez, 263 F.3d
436, 438 (5th Cir. 2001).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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The Government has moved for summary affirmance asserting that
Madrigal’s challenges to the applicability of § 2D1.1(b)(5) are foreclosed by
United States v. Serfass, 684 F.3d 548 (5th Cir. 2012) and by United States v.
Foulks, 747 F.3d 914 (5th Cir. 2014). This court’s summary affirmance
procedure is generally reserved for cases in which the parties concede that the
issues are foreclosed by circuit precedent. See United States v. Houston, 625
F.3d 871, 873 n.2 (5th Cir. 2010). Madrigal does not concede that his
arguments are foreclosed; therefore, summary affirmance is not appropriate
here.
Under § 2D1.1(b)(5), a two-level upward adjustment should be assessed
if the offense of conviction “involved the importation of amphetamine or
methamphetamine.” This court has held that the enhancement applies
“regardless of whether the defendant had knowledge of that importation.”
Serfass, 684 F.3d at 552. Therefore, the Government was under no obligation
to show that Madrigal knew or should have foreseen that the
methamphetamine was imported. See Serfass, 684 F.3d at 551-53; see also
Foulks, 747 F.3d at 915. Although Madrigal argues that Serfass was wrongly
decided, one panel of this court cannot 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 Madrigal’s argument that the enhancement should only be applied
if the importation qualifies as relevant conduct under § 1B1.3, this court has
held that “distribution (or possession with intent to distribute) of imported
methamphetamine, even without more, may subject a defendant to the
§ 2D1.1(b)(5) enhancement.” Foulks, 747 F.3d at 915 (citations omitted).
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Because the methamphetamine Madrigal possessed was imported from
Mexico, the enhancement was properly applied. See id.
The judgments of the district court are AFFIRMED. The Government’s
motion for summary affirmance is DENIED and its alternative motion for an
extension of time to file an appellate brief is DENIED as unnecessary.
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