IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10066

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JORGE BARRETO ABILES,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CR-141-1

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jorge Barreto Abiles pleaded guilty to possession with intent to 

distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. 

§ 841(a)(1) and carry and use of a firearm in relation to a drug trafficking crime 

under 18 U.S.C. § 924(c)(1)(A). He challenges his 262-month sentence for the 

methamphetamine offense, asserting that the district court erred by imposing 

a U.S.S.G. § 2D1.1(b)(5) importation enhancement because (1) he did not 

* 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

December 29, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-10066 Document: 00512883620 Page: 1 Date Filed: 12/29/2014
No. 14-10066

import the methamphetamine and (2) there was no evidence that he engaged 

in jointly undertaken criminal conduct with the importer. However, the

possession with intent to distribute imported methamphetamine “without 

more” subjects the defendant to the § 2D1.1(b)(5) enhancement. United States 

v. Foulks, 747 F.3d 914, 915 (5th Cir.), cert. denied, 2014 WL 3509481 (Oct. 6, 

2014) (No. 14-5236). Barreto Abiles alternatively asserts that this court erred 

in United States v. Serfass, 684 F.3d 548, 549-50, 553 (5th Cir. 2012), when it

determined that there is no scienter requirement under § 2D1.1(b)(5). We do 

not entertain this argument, as a panel of this court may not overrule the 

decision of another absent a superseding en banc or Supreme Court decision. 

See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002).

Additionally, Barreto Abiles contends that the district court erroneously 

double counted his actions of drawing a firearm while fleeing from law 

enforcement by imposing the U.S.S.G. § 3C1.2 reckless endangerment

enhancement along with the mandatory minimum 60-month sentence under 

§ 924(c) and U.S.S.G. § 2K2.4. Because he did not raise the objection before

the district court, review is for plain error. See United States v. Medina-Torres, 

703 F.3d 770, 773-74 (5th Cir. 2012). Barreto Abiles must show an error that 

is clear or obvious that affects his substantial rights. See Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the 

discretion to correct the error, but only if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. See id.

We find no plain error in the imposition of the the reckless endangerment 

enhancement because any such error would be “subject to reasonable debate” 

and therefore not clear or obvious. See Puckett, 556 U.S. at 135. As a matter 

of first impression, it is not clear that either § 3C1.2 or § 2K2.4 on its face 

specifically prohibits double counting under the circumstances of this case. See

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No. 14-10066

§ 3C1.2, cmt. (n.1); § 2K2.4, cmt. (n.4); United States v. Garcia-Gonzalez, 714 

F.3d 306, 316 (5th Cir. 2013) (“Double counting is prohibited only if the 

particular guidelines at issue specifically forbid it.”). For example, Application 

Note 1 to § 3C1.2 does not expressly apply because Barreto Abiles did not 

receive a second guidelines enhancement based on his conduct of drawing the 

firearm while fleeing. Nor was his 60-month sentence under § 924(c) imposed 

“solely on the basis of the same conduct” as the § 3C1.2 enhancement because 

the § 3C1.2 enhancement was based in part on Barreto Abiles’s conduct in

fleeing from law enforcement. 

Likewise, the commentary to § 2K2.4 expressly bars only enhancements 

“for possession, brandishing, use, or discharge” of a firearm when determining 

the sentence for the underlying offense. § 2K2.4, cmt. (n.4). Barreto Abiles 

contends that this rule extends beyond the enhancements that apply expressly 

to firearms to any enhancement that is related to a firearm in a particular case.

He emphasizes that the district court imposed the reckless endangerment 

enhancement “based on [his] possession and manipulation of a weapon during 

flight” and that the enhancement “could not have applied in the absence of the 

firearm,” without which “there was merely flight.” However, he cites no 

authority showing that the comment to § 2K2.4 has been applied to a nonfirearm enhancement that was not specifically listed as an example in the 

commentary.

For these reasons, the judgment of the district court is AFFIRMED.

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