In a two-page opinion, the panel holds the two-level enhancement
for an offense that involved the importation of meth, U.S.S.G. § 2D1.1(b)(5),
applies under a strict liability theory.
Even if the defendant did not know the meth was imported or was not
personally involved in the importation, the enhancement applies as long as meth
in question was imported.
Here, it was sufficient that “the methamphetamine Foulks
possessed was imported from Mexico.”
In United States v. Serfass
, “the enhancement
applied to a defendant who possessed and distributed imported methamphetamine,
even absent any showing that he knew it was imported” and even though he was at
least one transaction removed from the importation.
F.3d 548, 550 (5th Cir.), cert. denied
133 S. Ct. 623 (2012).
In United States v. Rodriguez
, the Fifth
Circuit concluded that the enhancement applied because of the defendant’s “proximity,
familiarity, and repeated business with the importers justifie[d] the enhancement.
666 F.3d 944, 946-47 (5th Cir. 2012).
panel clarifies that Rodriguez
did not hold that those factors were required, and that the enhancement applies
even where proximity, familiarity, and repeated business do not justify the
So, for now, the enhancement will apply whenever the
Government can prove the meth in question was imported.
Of course, that does not mean that the
application results in a reasonable sentence or that the enhancement itself is