No Knowledge that Meth Was Imported Necessary to Get +2 Pursuant to § 2D1.1(b)(5) for Offense that “Involved the Importation of” Meth
United States v. Foulks, No. 13-10399 (5th Cir. Mar. 11, 2014) (King, Southwick, Graves) (per curiam)
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. 684 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). The Foulks 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 enhancement.
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 sound.