Petition for certiorari filed at, 07/10/2014
Appeal from the United States District Court for the Northern District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX.
For ANTHONY DALE FOULKS, Defendant - Appellant: Leigh Warren Davis, Bedford, TX.
Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
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, 184 L.Ed.2d 404 (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 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now make explicit what was at least implied in Serfass, and what has been recognized in at least two of our subsequent unpublished opinions and by the Ninth Circuit: distribution (or possession with intent to distribute) of imported methamphetamine, even without more, may subject a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.Appx. 985, 985 (5th Cir. 2012) (" The fact that the methamphetamine was imported was enough to warrant the enhancement." ); United States v. Castillo, 536 F.Appx. 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 ...