     Case: 12-40572     Document: 00512021512         Page: 1     Date Filed: 10/16/2012




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

                                                                            FILED
                                                                         October 16, 2012
                                     No. 12-40572
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FERNANDO SERGIO SERNA-RIVERA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-73-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Fernando Sergio Serna-Rivera
challenges his sentence on the ground that the district court engaged in double
counting by using his prior drug-trafficking conviction to increase both his
offense level and his criminal history score. Serna-Rivera raises the issue to
preserve it for possible further review but concedes that his argument is
foreclosed by United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001), and
United States v. Box, 50 F.3d 345, 359 (5th Cir. 1995). See United States v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40572   Document: 00512021512     Page: 2   Date Filed: 10/16/2012

                                No. 12-40572

Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Accordingly, the Government’s
motion for summary affirmance is GRANTED, the Government’s alternative
motion for an extension of time to file a brief is DENIED, and the judgment of
the district court is AFFIRMED.




                                      2
