IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10841

Summary Calendar

UNITED STATES OF AMERICA,

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.

United States Court of Appeals

Fifth Circuit

FILED

May 6, 2016

Lyle W. Cayce

Clerk

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No. 15-10841

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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, 625 F.3d 871, 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, 564 F.3d 750, 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, 517 F.3d 751, 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, 684 F.3d 548, 552 (5th Cir. 2012). Although Esquivel 

asserts that Serfass was wrongly decided, one panel of this court may not 

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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 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, 717 F.3d 914, 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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