     Case: 15-10406      Document: 00513424952         Page: 1    Date Filed: 03/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-10406                                 FILED
                                  Summary Calendar                         March 15, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL CADENA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-163


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Michael Cadena pleaded guilty to conspiracy to
possess with intent to distribute more than 50 grams of a mixture and
substance containing a detectable amount of methamphetamine. Following a
contested sentencing hearing, the district court sentenced him to a term of
imprisonment of 150 months, the middle of the guidelines range, to be followed
by a supervised release term of four years. Cadena contends on appeal that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10406

the district court clearly erred when it enhanced his sentence on the basis of
U.S.S.G. § 2D1.1(b)(5) & (b)(12).
      According to the presentence report (PSR), Cadena met Narcisco
Rodriguez, his codefendant, in 2012. Soon thereafter, Cadena began supplying
Rodriquez with quarter ounce quantities of cocaine for resale. In July 2013, a
confidential source (CS) met Rodriguez at a gas station and purchased a
quarter ounce of cocaine, that had been supplied by Cadena, with the
expectation of conducting a larger transaction at a later date. Approximately
two weeks later, Rodriguez agreed to sell one pound of methamphetamine to
the CS. Although Rodriguez initially agreed to meet the CS at a second gas
station, he changed his mind after speaking to Cadena, and the sale was
cancelled. The next month, Rodriguez again agreed to sell one pound of
methamphetamine to the CS and to conduct the transaction at the second gas
station. Rodriguez and Cadena traveled to the gas station in different vehicles,
and Cadena, who had supplied the methamphetamine, served as a lookout
while Rodriguez completed the sale. When tested, the methamphetamine
weighed 439.3 grams and was 98.6 percent pure. Given this quantity and
purity, an FBI agent advised the probation officer that the methamphetamine
was more likely than not imported from Mexico. The agent based his opinion
on his training and experience and his conversations with the DEA.
      Cadena’s complaint about the district court’s imposition of the two
guideline enhancements is a challenge to the procedural reasonableness of his
sentence. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
“[The] district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, and its factual findings . . . are reviewed for
clear error.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008) (internal quotation marks and citation omitted). Facts used to determine



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a sentence must be supported “by a preponderance of the relevant and
sufficiently reliable evidence.” United States v. Alaniz, 726 F.3d 586, 619 (5th
Cir. 2013) (internal quotation marks and citation omitted). As long as a factual
finding is plausible in light of the record as a whole, it is not clearly erroneous
and should be upheld. Id. at 618.
      Pursuant to U.S.S.G. § 2D1.1(b)(5), a two-level upward adjustment
should be assessed if the offense of conviction “involved the importation of
amphetamine or methamphetamine.” We have held that this enhancement
applies “regardless of whether the defendant had knowledge of that
importation.” United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012).
      Cadena advances that the enhancement may only be applied if (1)
importation qualifies as relevant conduct and (2) U.S.S.G. § 1B1.3 requires his
personal involvement in the importation or his reasonable foreseeability that
the methamphetamine would be or was imported. He contends that such
requirements cannot be satisfied in this case. That argument is foreclosed by
Serfass. 684 F.3d at 552; see United States v. Foulks, 747 F.3d 914, 915 (5th
Cir. 2014) (defendant need not know of or participate in importation) (citing
Serfass, 684 F.3d at 549-50, 553-54).
      Finally, Cadena insists that our decision in Serfass was wrongly decided.
He should know, however, that one panel of this court is precluded from
overruling a decision made by a prior panel absent en banc consideration, a
change in relevant statutory law, or an intervening decision by the Supreme
Court. See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002).
The district court did not clearly err in applying the two-level enhancement
under § 2D1.1(b)(5). See Serfass, 684 F.3d at 552.
      Next, § 2D1.1(b)(12) authorizes a two-level enhancement if the
defendant maintained a premises for the purpose of manufacturing or



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distributing a controlled substance, including storage of a controlled substance
for the purpose of distribution. Cadena does not contest the district court’s
finding that he used an apartment for the receipt, storage, and distribution of
cocaine. Rather, he argues that the district court erred in assessing the drug-
premises enhancement because his distribution of cocaine was unrelated to his
distribution of methamphetamine and thus did not qualify as relevant conduct
under § 1B1.3.
      In determining whether application of an enhancement is warranted, “a
court may consider, as ‘relevant conduct,’ acts in addition to those underlying
the offense of conviction.” United States v. Dickson, 632 F.3d 186, 192 (5th Cir.
2011). Relevant conduct includes “all acts and omissions . . . that were part of
the same course of conduct or common scheme or plan as the offense of
conviction.” § 1B1.3(a)(2). Factors to be considered in determining whether
two offenses qualify as “the same course of conduct” or “a common scheme or
plan” include similarity, regularity, and temporal proximity. § 1B1.3, cmt.
n.9(B) (2014 ed.); United States v. Culverhouse, 507 F.3d 888, 896 (5th Cir.
2007). We review the district court’s factual findings regarding a defendant’s
relevant conduct for clear error. See United States v. Solis, 299 F.3d 420, 461
(5th Cir. 2002).
      The district court concluded that Cadena’s distribution of cocaine
qualified as relevant conduct because (1) Cadena and Rodriguez jointly agreed
to distribute narcotics, including both cocaine and methamphetamine; (2) the
sale of methamphetamine to the CS was part of that broader agreement; and
(3) the joint distribution of narcotics occurred over three or four months, during
which time Cadena supplied Rodriguez with cocaine on at least 10 occasions.
Cadena misconstrues the record when he contends that the district court’s
findings are clearly erroneous because the methamphetamine transaction was



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                                  No. 15-10406

temporally distinct from his sales of cocaine to Rodriguez, and the offenses
were dissimilar. Cadena supplied Rodriguez with the cocaine sold to the CS in
July 2013. That sale was made with the expectation that a larger sale of
cocaine would follow. One month later, Rodriguez negotiated the sale of the
methamphetamine, which Cadena also supplied. Given the similarity and
temporal proximity of the cocaine and methamphetamine sales to the CS, the
district court’s relevant conduct finding is not implausible in light of the record
as a whole, see Culverhouse, 507 F.3d at 896, and application of the drug
premises enhancement was not clearly erroneous.
      AFFIRMED.




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