Case: 15-10841      Document: 00513496286         Page: 1    Date Filed: 05/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10841
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 6, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

FERNANDO C. ESQUIVEL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-90-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Fernando C. Esquivel pleaded guilty to one count of conspiracy to possess
with intent to distribute 50 grams or more of a mixture or substance containing
methamphetamine, and he received a within-guidelines sentence of 70 months
in prison.    On appeal, he argues that the district court clearly erred by
imposing a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(5) based on
a conclusion that the methamphetamine was imported. Esquivel argues that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 15-10841

the enhancement should not apply because there was no evidence showing that
he knew that the methamphetamine had been imported.              In addition, he
maintains that the court wrongly applied the enhancement because the
conspiracy offense did not require proof of importation and because there was
insufficient evidence to show that the fact of importation could be considered
as relevant conduct under U.S.S.G. § 1B1.3.
      The Government moves for summary affirmance, asserting that the
importation enhancement was properly applied.             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, e.g., United
States v. Houston, 

, 873 n.2 (5th Cir. 2010) (noting the denial of
summary affirmance where an issue was not foreclosed). As Esquivel does not
concede that his arguments are foreclosed, summary affirmance is
inappropriate.
      Esquivel’s challenge to the court’s imposition of the guidelines
enhancement is a challenge to the procedural reasonableness of his sentence.
United States v. Delgado-Martinez, 

, 752 (5th Cir. 2009). “[The]
district court’s interpretation or application of the Sentencing Guidelines is
reviewed de novo, and its factual findings . . . are reviewed for clear error.”
United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008) (internal
quotation marks and citation omitted).
      Pursuant to § 2D1.1(b)(5), a two-level upward adjustment should be
assessed if the offense of conviction “involved the importation of amphetamine
or methamphetamine.”        We have held that the enhancement applies
“regardless of whether the defendant had knowledge of that importation.”
United States v. Serfass, 

, 552 (5th Cir. 2012). Although Esquivel
asserts that Serfass was wrongly decided, one panel of this court may not



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                                 No. 15-10841

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, 

, 313 & n.34 (5th Cir. 2002).
As for Esquivel’s assertion that the Government was required to prove that the
importation constituted relevant conduct attributable to him, “distribution (or
possession with intent to distribute) of imported methamphetamine, even
without more, may subject a defendant to the § 2D1.1(b)(5) enhancement.”
United States v. Foulks, 

, 915 (5th Cir. 2014) (citations omitted).
      As Esquivel has not shown that the district court erred in imposing the
two-level enhancement, the judgment of the district court is AFFIRMED. The
Government’s motion for summary affirmance and the alternative motion for
an extension of time to file an appellate brief is DENIED.




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