IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11515

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CARLOS VALDEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CR-122-16

Before JONES, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Carlos Valdez pleaded guilty to conspiracy to possess, with intent to 

distribute, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

846. The district court imposed, inter alia, a within-Guidelines sentence of 57 

months’ imprisonment. Valdez challenges the court’s application of a 

sentencing enhancement under Guideline § 2D1.1(b)(5) for importation of 

“liquid methamphetamine”, and its rejection of a “minor participant” role 

reduction under Guideline § 3B1.2.

 

* 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

August 2, 2017

Lyle W. Cayce

Clerk

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2

Although post-Booker, the Sentencing Guidelines are advisory only, the 

district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 48–51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

preserved in district court, its application of the Guidelines is reviewed de novo; 

its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

A minor-participant decision is a factual finding. United States v. TorresHernandez, 843 F.3d 203, 207 (5th Cir. 2016). Regarding the assertion that 

the court erred in finding Valdez was not a minor-participant, the court was 

“not required to expressly weigh each factor” listed in the commentary to 

Guideline § 3B1.2. Id. at 209 (citing U.S.S.G. § 3B1.2). Implicit consideration 

of the factors is sufficient where the court’s finding is plausibly supported by 

the record. Id. In the light of Valdez’ level of involvement in the brokerage 

and distribution of a substantial amount of methamphetamine, his actions to 

obtain customers for the conspiracy, and the remuneration he received, the 

court’s finding against a minor-participant reduction was plausible based on 

the record. Therefore, the court did not clearly err in finding Valdez did not 

qualify as a minor participant in the conspiracy. See id. at 209–10.

As for Valdez’ other contention, Guideline § 2D1.1(b)(5)’s importation 

enhancement applies if the offense involved (1) the importation of 

“methamphetamine”, or (2) the manufacture of methamphetamine from “listed 

chemicals” defendant knew were imported unlawfully. United States v. 

Serfass, 684 F.3d 548, 550–52 (5th Cir. 2012) (distinguishing “listed chemicals” 

from the “end product” of “methamphetamine”). Therefore, knowledge of the 

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importation is required only if the conviction is based on listed chemicals, 

rather than the end product of methamphetamine. See id. at 551–52. 

Valdez maintains the “liquid methamphetamine”, for which he was 

convicted, is a precursor chemical rather than an end product of manufactured

methamphetamine because it had not yet been crystalized at the time of 

importation. Valdez, however, takes Serfass out of context; our court has not 

distinguished between liquid and crystalline methamphetamine for the 

purpose of Guideline § 2D1.1(b)(5). See Serfass, 684 F.3d at 551–52; see also 

§ 2D1.1(b)(5) cmt. n.8(D) (listing chemicals involved the manufacture of 

methamphetamine). Accordingly, the court properly applied the first portion 

of § 2D1.1(b)(5), determining Valdez’ conspiracy involved the importation of 

methamphetamine, not precursor chemicals. 

In the light of the foregoing, Valdez’ other challenges to § 2D1.1(b)(5) are 

also unavailing. Because his conviction was for liquid methamphetamine, it is 

immaterial whether there was any evidence of Valdez’ knowledge of the 

importation. Serfass, 684 F.3d at 551―53. In addition, despite Valdez’ 

assertion there was insufficient evidence of his relevant conduct in regard to 

the importation, we have held, as here, “possession with intent to 

distribute . . . imported methamphetamine, even without more, may subject a 

defendant to the § 2D1.1(b)(5) enhancement”. United States v. Foulks, 747 

F.3d 914, 915 (5th Cir. 2014). Finally, Valdez’ due-process challenge also fails, 

based on our court’s precedent. See Serfass, 684 F.3d at 553 (rejecting the 

contention that imposition of the enhancement without a defendant’s 

knowledge of importation violated due process).

AFFIRMED.

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