United States Court of Appeals

for the Fifth Circuit

No. 21-50197

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Ricky Rosa, Jr., 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:20-CR-162-1

Before Owen, Chief Judge, and Southwick and Wilson, Circuit 

Judges.

Per Curiam:*

Ricky Rosa, Jr. appeals his within-guidelines sentence of 324 months’

imprisonment imposed for his conviction of possession with the intent to 

distribute fifty grams or more of actual methamphetamine. He argues that 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 29, 2021

Lyle W. Cayce

Clerk

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the district court incorrectly calculated both his total offense level and his 

criminal history score. 

In addressing a preserved claim of procedural error, we review the 

district court’s application of the Sentencing Guidelines de novo and its 

factual findings for clear error. United States v. Robinson, 741 F.3d 588, 598-

99 (5th Cir. 2014). Rosa’s preserved challenge to his two-level enhancement 

under U.S.S.G. § 2D1.1(b)(5) is foreclosed because his offense involved the 

importation of methamphetamine. See United States v. Foulks, 747 F.3d 914, 

915 (5th Cir. 2014) (citing United States v. Serfass, 684 F.3d 548, 549-50, 553-

54 (5th Cir. 2012)).

Because Rosa failed to object in the district court to the calculation of 

his criminal history score, we review his arguments under the plain error 

standard. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 

2009). Rosa argues that the district court erred in calculating his criminal 

history score when it assessed him eight criminal history points, rather than 

the maximum of four, for his prior sentences under U.S.S.G. § 4A1.1(c). 

That argument is belied by the record. The district court assessed Rosa only 

four points, in compliance with § 4A1.1(c)’s four-point cap, in its final 

calculation. Thus, the district court did not plainly err in calculating Rosa’s

criminal history score under § 4A1.1(c). See Puckett v. United States, 556 U.S. 

129, 135 (2009).

Rosa also argues that the district court erred under U.S.S.G. 

§ 4A1.2(a)(2) and (c)(1) in its treatment of his prior sentence for failing to 

identify as a fugitive. Although the Texas offense of failure to identify may 

be similar to an offense listed in § 4A1.2(c)(1), the subsection dictates that 

the offense was properly counted in calculating Rosa’s criminal history score

because the sentence of imprisonment was at least thirty days. See

§ 4A1.2(c)(1)(A). Accordingly, the district court did not plainly err when it

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counted the failure to identify offense in Rosa’s criminal history score. See

§ 4A1.2(c)(1)(A); Puckett, 556 U.S. at 135.

Lastly, Rosa asserts that the district court erred in calculating his 

criminal history score by failing to treat his sentences for failing to identify as 

a fugitive and driving while intoxicated as a “single sentence” under 

§ 4A1.2(a)(2). Because these offenses were separated by an intervening 

arrest, they were properly counted as separate sentences under

§ 4A1.2(a)(2). The district court did not plainly err in treating the sentences 

as separate sentences. See Puckett, 556 U.S. at 135.

The judgment of the district court is AFFIRMED.

Case: 21-50197 Document: 00516148054 Page: 3 Date Filed: 12/29/2021