     Case: 18-40392      Document: 00515233836         Page: 1    Date Filed: 12/12/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                    No. 18-40392                         FILED
                                  Summary Calendar               December 12, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIO RAYMUNDO MIRANDA-ONTIVEROS ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CR-178-3


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       A jury convicted Mario Raymundo Miranda-Ontiveros of conspiring to
possess with the intent to distribute methamphetamine in violation of 21
U.S.C. § 846. The district court sentenced him to 360 months in prison. For
the first time on appeal, he challenges the district court’s application of the
two-level importation enhancement under U.S.S.G. § 2D1.1(b)(5). We review
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40392    Document: 00515233836     Page: 2   Date Filed: 12/12/2019


                                 No. 18-40392

      Miranda-Ontiveros’s argument that § 2D1.1(b)(5) has a mens rea
requirement is foreclosed by United States v. Serfass, 684 F.3d 548, 552 (5th
Cir. 2012), and United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014).
Because    Miranda-Ontiveros’s     remaining     arguments     regarding     the
§ 2D1.1(b)(5) enhancement raise factual issues which could have been resolved
by the district court upon proper objection at sentencing, he cannot show plain
error. See Serfass, 684 F.3d at 553-54; United States v. Lopez, 923 F.2d 47, 50
(5th Cir. 1991).
      The judgment of the district court is AFFIRMED.




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