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, 

, 550 (5th Cir.), cert. denied, 

(2012).
      In United States v. Rodriguez, 

, 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.” 

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. 

, 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 

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, 

, 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.


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