     Case: 15-10726      Document: 00513618579         Page: 1    Date Filed: 08/01/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-10726
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                  August 1, 2016
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

v.

ERICA AYALA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-22-1


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Erica Ayala pleaded guilty to one count of conspiracy to possess with
intent to distribute a controlled substance—here, methamphetamine—in
violation of 21 U.S.C. § 846 and § 841. She appeals her sentence. Ayala first
argues that the district court erred in imposing a two-level enhancement under
U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in connection with the offense.
Ayala did not object to this enhancement below, so we review for plain error.
See United States v. Lopez, 923 F.2d 47, 49 (5th Cir. 1991).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-10726

      In imposing the enhancement, the district court relied on the
Presentence Report (PSR), which stated that Ayala was arrested “in possession
of a Remington shotgun and ammunition, while also in possession of
methamphetamine, ‘dope’ notes, and drug paraphernalia.” Ayala asserts that
she acquired the shotgun for personal protection after she had withdrawn from
the conspiracy. Her attorney made the same claim at the sentencing hearing—
without evidence—and offered it only in mitigation, not as an objection to the
enhancement itself. Because Ayala did not present evidence establishing how
or when she acquired the shotgun, she failed to “factually develop in the
district court all arguments concerning application of the guidelines [she]
believed might persuade the judge to alter the sentence [she] now challenges.”
Lopez, 923 F.2d at 50. Her argument on appeal does not present a question of
law, but rather, is an attempt to attack the factual underpinnings of the
enhancement—a question that could have been resolved by the district court
if she had raised an objection based on supporting evidence. See United States
v. Harris, 702 F.3d 226, 231 (5th Cir. 2012) (“Requiring a defendant to object
to the accuracy or reliability of the factual recitation puts the district court on
notice that those facts are contested.”). Because “[q]uestions of fact capable of
resolution by the district court upon proper objection at sentencing can never
constitute plain error,” her argument fails. Lopez, 923 F.2d at 50. Even if we
could consider the factual challenge Ayala now seeks to raise, it would not
demonstrate that the district court committed an obvious error in finding that
Ayala possessed the firearm during and in connection with the drug
conspiracy. The firearm was found during the arrest of Ayala when she also
was in possession of methamphetamine and notes related to drug trafficking.
      Ayala next argues that the district court erred in imposing a two-level
enhancement under U.S.S.G. § 2D1.1(b)(5), because the government did not



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                                     No. 15-10726

prove that she knew the methamphetamine in her possession was imported. 1
Ayala acknowledges that her argument is foreclosed in this circuit by United
States v. Serfass, 684 F.3d 548, 554 (5th Cir. 2012).
       AFFIRMED.




      1 The PSR stated that federal agents had “determined, via another investigation, that
the methamphetamine supplied to [Ayala] . . . was imported from Mexico.”



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