# United States Court of Appeals

f or 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* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 29, 2021 Lyle W. Cayce Clerk Case: 21-50197 Document: 00516148054 Page: 1 Date Filed: 12/29/2021No. 21

- 50197

2 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 e r ror 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 )

. T hat argument is belied by the record. T he district court assessed Ros a only four points, in compliance with § 4A1.1(c)’s four

- point cap, i n it s final calculation. Thus, the district court did not plainly err in calculat ing Rosa’s criminal history score under § 4A1.1 (c)

. See Puckett v. United States , 556 U.S. 129, 135 (200 9)

. 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. Alt hough 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 co urt did not plainly err when it Case: 21-50197 Document: 00516148054 Page: 2 Date Filed: 12/29/2021No. 21

- 50197

3 count ed 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 faili ng 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 unde r § 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.

T he judgment of the district court is AFFIRMED

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