United States v. Jorge Abiles , 588 F. App'x 387 ( 2014 )

Case: 14-10066 Document: 00512883620 Page: 1 Date Filed: 12/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10066
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 29, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-10066 Document: 00512883620 Page: 2 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 non-
firearm 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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