IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11273

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICKY MADRIGAL,

Defendant-Appellant

Cons. w/No. 15-11275

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICHARD MADRIGAL,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 2:98-CR-11-1

USDC No. 2:15-CR-70-1

United States Court of Appeals

Fifth Circuit

FILED

December 2, 2016

Lyle W. Cayce

Clerk

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No. 15-11273

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Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Richard Madrigal, also known as Ricky Madrigal, pleaded guilty to 

conspiracy to possess with intent to distribute 500 grams or more of a mixture 

or substance containing methamphetamine in violation of 21 U.S.C. § 846. The 

district court sentenced Madrigal to 262 months of imprisonment followed by 

a 5-year term of supervised release. Immediately after sentencing, Madrigal 

pleaded “true” to having violated the terms of his supervised release in a prior 

criminal case. The district court revoked his supervised release and sentenced 

him to 12 months of imprisonment to run consecutively to the sentence 

imposed in the conspiracy case.

On appeal, Madrigal challenges the district court’s application of the 

importation enhancement under U.S.S.G. § 2D1.1(b)(5). Madrigal argues that 

there is no evidence, direct or inferential, that he had knowledge that the 

methamphetamine attributed to him came from Mexico. He further argues 

that the enhancement should not apply because any importation did not 

constitute relevant conduct under U.S.S.G. § 1B1.3.

Madrigal also appealed the revocation judgment, but his appellate brief 

does not present any challenge to the revocation of his supervised release or 

the resulting sentence. As such, he has waived any argument he may have

had on appeal with respect to revocation. United States v. Martinez, 263 F.3d 

436, 438 (5th Cir. 2001).

 

* 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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The Government has moved for summary affirmance asserting that 

Madrigal’s challenges to the applicability of § 2D1.1(b)(5) are foreclosed by 

United States v. Serfass, 684 F.3d 548 (5th Cir. 2012) and by United States v. 

Foulks, 747 F.3d 914 (5th Cir. 2014). 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 United States v. Houston, 625 

F.3d 871, 873 n.2 (5th Cir. 2010). Madrigal does not concede that his 

arguments are foreclosed; therefore, summary affirmance is not appropriate 

here.

Under § 2D1.1(b)(5), a two-level upward adjustment should be assessed 

if the offense of conviction “involved the importation of amphetamine or 

methamphetamine.” This court has held that the enhancement applies 

“regardless of whether the defendant had knowledge of that importation.” 

Serfass, 684 F.3d at 552. Therefore, the Government was under no obligation 

to show that Madrigal knew or should have foreseen that the 

methamphetamine was imported. See Serfass, 684 F.3d at 551-53; see also

Foulks, 747 F.3d at 915. Although Madrigal argues that Serfass was wrongly 

decided, one panel of this court cannot 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, 

299 F.3d 303, 313 & n.34 (5th Cir. 2002).

As for Madrigal’s argument that the enhancement should only be applied 

if the importation qualifies as relevant conduct under § 1B1.3, this court has 

held that “distribution (or possession with intent to distribute) of imported 

methamphetamine, even without more, may subject a defendant to the 

§ 2D1.1(b)(5) enhancement.” Foulks, 747 F.3d at 915 (citations omitted). 

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Because the methamphetamine Madrigal possessed was imported from 

Mexico, the enhancement was properly applied. See id.

The judgments of the district court are AFFIRMED. The Government’s 

motion for summary affirmance is DENIED and its alternative motion for an 

extension of time to file an appellate brief is DENIED as unnecessary.

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