UNITED STATES v. MIRANDA ONTIVEROS (2019)

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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

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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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.