     Case: 11-10719       Document: 00511888333          Page: 1    Date Filed: 06/15/2012




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

                                                                             FILED
                                                                            June 15, 2012

                                         No. 11-10719                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

SHAWN DANIEL SERFASS,

                                                   Defendant-Appellant



                      Appeal from the United States District Court
                           for the Northern District of Texas


Before JONES, Chief Judge, and WIENER and GRAVES,* Circuit Judges.
WIENER, Circuit Judge:
        Defendant-Appellant Shawn Daniel Serfass pleaded guilty to possessing
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
The district court applied a two-level sentencing enhancement under United
States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(5)1 based on the
government’s         proof    that   the    offense      involved    the   importation       of
methamphetamine. The court did so despite Serfass’s insistence that the
enhancement          is   inapplicable     because       he   did   not    know   that   the


        *
            Judge Graves concurs in the judgment only.
        1
        Before the 2010 amendments to the Guidelines, this enhancement was found at §
2D1.1(b)(4).
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                                        No. 11-10719

methamphetamine he possessed was imported. We affirm the sentence and hold
that the enhancement under § 2D1.1(b)(5) applies irrespective of whether the
defendant knew that the possessed methamphetamine had been unlawfully
imported.


                                I. Facts & Proceedings
      Serfass was arrested in Fort Worth, Texas after a search of his car
revealed a bag containing methamphetamine. In a proffer interview, Serfass
admitted that he bought methamphetamine from a named individual on
approximately 24 occasions, purchasing two to three ounces each time, and that
he sold this methamphetamine to three other persons. Serfass pleaded guilty
to possessing methamphetamine with intent to distribute, a violation of 21
U.S.C. § 841(a)(1). Over Serfass’s objection at sentencing, the district court
applied a two-level enhancement under U.S.S.G. § 2D1.1(b)(5). The district
court calculated a Guidelines range of 151 to 188 months of imprisonment and
sentenced Serfass to 160 months of imprisonment and three years of supervised
release. Serfass timely appealed his sentence.


                                II. Standard of Review
      We review the district court’s interpretation of the Sentencing Guidelines
de novo, and review the district court’s factual findings for clear error.2 “There
is no clear error if the district court’s finding is plausible in light of the record as
a whole.”3 A finding of fact is clearly erroneous only if, after reviewing all the




      2
          United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      3
          Id. (quoting United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008)).

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                                       No. 11-10719

evidence, we are left with “the definite and firm conviction that a mistake has
been committed.”4


                  III. Interpretation of Sentencing Guidelines
       Serfass contends that the two-level sentencing enhancement provided in
U.S.S.G. § 2D1.1(b)(5) applies only if the defendant knew that the
methamphetamine he possessed was unlawfully imported. That guideline
authorizes a two-level increase if:
       the offense involved the importation of amphetamine or
       methamphetamine or the manufacture of amphetamine or
       methamphetamine from listed chemicals that the defendant knew
       were imported unlawfully . . . .5

       We have not previously ruled whether the qualification, “that the
defendant knew were imported unlawfully,” in this guideline enhancer applies
only to “the manufacture of amphetamine or methamphetamine from listed
chemicals,” or if it also applies to “the importation of amphetamine or
methamphetamine.”6 Serfass insists that knowledge of unlawful importation is
required for the finished product as well as for the ingredients: He would have


       4
         United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (quoting United States
v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005)).
       5
           Emphasis added.
       6
         In previous cases, we have declined to reach this question, holding that even if
knowledge of importation of methamphetamine is required for the enhancement to apply, the
defendants had such knowledge in those cases. See United States v. Rodriguez, 666 F.3d 944,
947 (5th Cir. 2012); United States v. Vasquez-Munoz, 236 Fed.Appx. 989, 990 (5th Cir. 2007)
(unpublished); United States v. Rodriguez-Monge, 218 Fed.Appx. 352, 353 (5th Cir. 2007)
(unpublished). The Tenth Circuit has indicated in dicta, however, that the guideline “appears
to impose a scienter requirement only when ‘the offense involved . . . the manufacture of . . .
methamphetamine from listed chemicals that the defendant knew were imported unlawfully.’
When the offense is the importation of methamphetamine, the Guideline is silent regarding
knowledge of the drug’s foreign origination.” United States v. Beltran-Aguilar, 412 Fed.Appx.
171, 175 n.2 (10th Cir. 2011) (unpublished) (not reaching issue because defendant had
knowledge that methamphetamine was imported).

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                                         No. 11-10719

us read the guideline as providing for an enhancement for the finished products
only if “the defendant knew [they] were imported unlawfully” to the same extent
that it requires knowledge of the unlawful importation of the listed ingredients.
The government, by contrast, maintains that the phrase, “that the defendant
knew were imported unlawfully,” applies only when the amphetamine or
methamphetamine was manufactured from the listed chemicals, but that the
enhancement for an offense involving “the importation of amphetamine or
methamphetamine”–the finished product–has no scienter requirement.
       In interpreting the Sentencing Guidelines, we apply the ordinary rules of
statutory construction.7 When the language of the guideline is unambiguous, the
plain meaning of that language is controlling unless it creates an absurd result.8
Only if that language is ambiguous does the rule of lenity apply in the
defendant’s favor.9
       We conclude that the plain language of § 2D1.1(b)(5) unambiguously limits
the qualification, “that the defendant knew were imported unlawfully,” to such
contraband that was manufactured from one or more of the listed chemicals; it
does not apply to “the importation of amphetamine or methamphetamine,” i.e.,
the end products of such manufacturing. We reach this conclusion by applying
the basic rules of English grammar.10
       In constructing the phrase, “that the defendant knew were imported
unlawfully,” the drafters of the Guidelines employed the plural verb, “were.”
That plural verb matches the plural noun, “chemicals.” The enhancement



      7
           United States v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007).
       8
           Id.
      9
           United States v. Bustillos-Pena, 612 F.3d 863, 868-69 (5th Cir. 2010).
      10
         See Flores–Figueroa v. United States, 556 U.S. 646, 650 (2009) (applying “ordinary
English grammar” to interpret scienter requirement in criminal statute).

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obviously applies when the offense involves “the manufacture of amphetamine
or methamphetamine from listed chemicals that the defendant knew were
imported unlawfully.” By contrast, however, there is no other plural noun in the
subject guideline to which the verb “were” could apply. In particular, that plural
verb cannot apply to the sentence’s disjunctive subject, “amphetamine or
methamphetamine,” because–according to the rules of grammar–“[i]f the subject
consists of two or more singular words that are connected by or . . . the subject
is singular and requires a singular verb.”11 Although they are of indefinite
quantity, the nouns “amphetamine” and “methamphetamine” are singular, just
as, for example, are the words “sugar” and “flour.” If, hypothetically, the clause
had been drafted to read “amphetamine or methamphetamine were imported,”
it would not have been grammatically correct. Simply put, then, the actual
phrase, “that the defendant knew were imported unlawfully,” cannot apply to
“the importation of amphetamine or methamphetamine.”
      In addition to being grammatically flawed, Serfass’s proffered reading
would render the language of § 2D1.1(b)(5) unnecessarily repetitive. Under his
interpretation, the guideline would apply to an offense involving “the
importation of amphetamine or methamphetamine . . . that the defendant knew
[was] imported unlawfully[.]” This redundant combination of “importation” and
“imported” is not only awkward; it is almost certainly not what the Sentencing
Commission intended.
      As we noted more than two decades ago, “[t]he guidelines drafters have
been explicit when they wished to import a mens rea requirement.”12 Here, the
drafters expressly included a knowledge element for an offense involving the



      11
        GREGG REFERENCE MANUAL: A MANUAL OF STYLE, GRAMMAR, USAGE, AND
FORMATTING 297 (William A. Sabin ed., 11th ed., 2011) (emphasis in original).
      12
           United States v. Singleton, 946 F.2d 23, 25 (5th Cir. 1991).

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                                       No. 11-10719

importation of the raw materials, i.e. the listed chemicals, used to manufacture
amphetamine or methamphetamine. The drafters did not, however, include
such a scienter requirement for the importation of the end products, i.e.,
amphetamine or methamphetamine. The inclusion of a knowledge requirement
in one portion of the guideline confirms that its omission from another portion
of the same guideline was intentional.13 Thus, the § 2D1.1(b)(5) sentencing
enhancement applies if “the offense involved the importation of amphetamine
or methamphetamine” regardless of whether the defendant had knowledge of
that importation.
       Moreover, this interpretation does not lead to absurd results. We have
indicated that “exposing a drug trafficker to liability for the full consequences,
both expected and unexpected, of his own unlawful behavior” is a rational
deterrent to criminal activity.14 Thus, it is not absurd to impose an enhancement
when an offense involves the importation of amphetamine or methamphetamine,
even if the defendant was unaware of that importation. On the other hand, if
the defendant possessed amphetamine or methamphetamine that was
manufactured domestically using unlawfully imported chemicals, the
requirement of knowledge of such importation makes sense.
       True, it is argued that the Sentencing Commission would have had no
reason to treat offenses involving the importation of methamphetamine more
harshly–by not requiring knowledge of such importation–than offenses involving
the manufacture of methamphetamine from imported precursor chemicals like
pseudoephedrine.         The unlawful importation of already manufactured


       13
         See Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507
U.S. 163, 168 (1993) (“Expressio unius est exclusio alterius.”).
       14
         United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999) (punishing
defendant according to the penalties associated with the drug he was actually carrying, rather
than the drug he thought he was carrying, did not violate due process) (quoting United States
v. Strange, 102 F.3d 356, 361 (8th Cir. 1996)).

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                                        No. 11-10719

methamphetamine, however, may well be more problematic than the unlawful
importation of precursor chemicals.             Indeed, the mere possession of those
precursor chemicals is not unlawful unless and until they are turned into
methamphetamine.
       In back-tracing a defendant’s responsibility under § 2D1.1(b)(5) for the
route that the methamphetamine he possesses traveled, even without his
knowledge, his responsibility might logically begin at the point at which the
precursor chemicals are actually manufactured into methamphetamine. Thus,
a defendant who possesses methamphetamine that had itself been unlawfully
imported is subject to the enhancement, whether or not he knew of that
importation, but a defendant who possesses domestic methamphetamine is
subject to the enhancement only if he knew that the chemicals from which it was
made were unlawfully imported. Whether such a distinction should make a
difference might be subject to debate, but it is not absurd–and the plain
language of the guideline controls when it (1) is not ambiguous and (2) produces
a result that is not absurd.
       Neither does the imposition of a sentencing enhancement under §
2D1.1(b)(5) without requiring knowledge of importation violate due process.
Even though some strict liability crimes have been struck down on due process
grounds,15 we have held that strict liability sentencing enhancements do not
violate due process: Such enhancements “do[] not create a crime where one
otherwise would not exist” and are consistent with a court’s traditional power to
consider evidence at sentencing even if that evidence would not have been




       15
          See, e.g., Lambert v. California, 355 U.S. 225 (1957) (felon registration ordinance was
unconstitutional when applied to person who had no knowledge of the requirement); United
States v. Anderson, 885 F.2d 1248 (5th Cir. 1989) (defendant could not be convicted of violation
of National Firearms Act without knowing that the guns in question were firearms under that
statute).

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                                         No. 11-10719

admissible during the guilt-innocence phase of a trial.16 Thus, applying the
sentencing enhancement that is authorized by § 2D1.1(b)(5) when “the offense
involved the importation of . . . methamphetamine”–whether or not the
defendant knew that the methamphetamine was imported–does not violate due
process.17 And, because § 2D1.1(b)(5) applies regardless of whether Serfass knew
that the methamphetamine he possessed was imported, we need not, and
therefore do not, address his assertion that he had no such knowledge.


                       IV. Importation of Methamphetamine
       Finally, Serfass contends that there is not sufficient evidence to prove
that the methamphetamine he possessed was in fact imported. The
government must prove the facts underlying a sentencing enhancement by a
preponderance of the evidence.18 At Serfass’s sentencing, Drug Enforcement
Administration Task Force Officer Kevin Brown testified that Serfass
obtained the methamphetamine from an individual, and Officer Brown
identified that person by name. Indeed, Serfass admitted in a proffer
interview that he obtained the methamphetamine from that individual.
Officer Brown further testified that the same individual stated in a proffer
interview that his source of supply was another individual, one Fernando
Lopez, who brought the methamphetamine to him from Mexico. The district


       16
          Singleton, 946 F.2d at 26. Serfass contends that Singleton, which concerned the
enhancement under U.S.S.G. § 2K2.1(b)(4) for an offense involving a stolen firearm, is
inapposite because, in light of registration requirements, it is easier to determine whether a
firearm was stolen than to determine whether drugs were imported. There is, however, no due
process requirement that the facts underlying a sentencing enhancement be easy to determine.
       17
         Serfass does not raise, and we therefore do not address, an issue raised by the
defendant in United States v. Rodriguez, 666 F.3d 944, 946 (5th Cir. 2012), viz., the extent to
which possession of imported methamphetamine constitutes an offense that “involved the
importation of . . . methamphetamine” for purposes of § 2D1.1(b)(5).
       18
            United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011).

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                                 No. 11-10719

court did not clearly err in finding that the methamphetamine involved in
this case was unlawfully imported.


                                V. Conclusion
      We hold today that the two-level sentencing enhancement of U.S.S.G. §
2D1.1(b)(5) applies when “the offense involved the importation of . . .
methamphetamine,” even if the defendant did not know that the
methamphetamine was imported. As the district court did not clearly err in
finding that the methamphetamine possessed by Serfass was in fact
imported, we affirm that court’s enhancement of Serfass’s sentence on the
authority of § 2D1.1(b)(5).
      AFFIRMED.




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