     Case: 16-11515       Document: 00514099922         Page: 1     Date Filed: 08/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                     No. 16-11515                                  FILED
                                   Summary Calendar                           August 2, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CARLOS VALDEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:16-CR-122-16


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Carlos Valdez pleaded guilty to conspiracy to possess, with intent to
distribute, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
846. The district court imposed, inter alia, a within-Guidelines sentence of 57
months’ imprisonment.           Valdez challenges the court’s application of a
sentencing enhancement under Guideline § 2D1.1(b)(5) for importation of
“liquid methamphetamine”, and its rejection of a “minor participant” role
reduction under Guideline § 3B1.2.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-11515     Document: 00514099922      Page: 2   Date Filed: 08/02/2017


                                  No. 16-11515

      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      A minor-participant decision is a factual finding. United States v. Torres-
Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). Regarding the assertion that
the court erred in finding Valdez was not a minor-participant, the court was
“not required to expressly weigh each factor” listed in the commentary to
Guideline § 3B1.2. Id. at 209 (citing U.S.S.G. § 3B1.2). Implicit consideration
of the factors is sufficient where the court’s finding is plausibly supported by
the record. Id. In the light of Valdez’ level of involvement in the brokerage
and distribution of a substantial amount of methamphetamine, his actions to
obtain customers for the conspiracy, and the remuneration he received, the
court’s finding against a minor-participant reduction was plausible based on
the record. Therefore, the court did not clearly err in finding Valdez did not
qualify as a minor participant in the conspiracy. See id. at 209–10.
      As for Valdez’ other contention, Guideline § 2D1.1(b)(5)’s importation
enhancement applies if the offense involved (1) the importation of
“methamphetamine”, or (2) the manufacture of methamphetamine from “listed
chemicals” defendant knew were imported unlawfully.             United States v.
Serfass, 684 F.3d 548, 550–52 (5th Cir. 2012) (distinguishing “listed chemicals”
from the “end product” of “methamphetamine”). Therefore, knowledge of the

                                        2
    Case: 16-11515    Document: 00514099922      Page: 3   Date Filed: 08/02/2017


                                 No. 16-11515

importation is required only if the conviction is based on listed chemicals,
rather than the end product of methamphetamine. See id. at 551–52.
      Valdez maintains the “liquid methamphetamine”, for which he was
convicted, is a precursor chemical rather than an end product of manufactured
methamphetamine because it had not yet been crystalized at the time of
importation. Valdez, however, takes Serfass out of context; our court has not
distinguished between liquid and crystalline methamphetamine for the
purpose of Guideline § 2D1.1(b)(5). See Serfass, 684 F.3d at 551–52; see also
§ 2D1.1(b)(5) cmt. n.8(D) (listing chemicals involved the manufacture of
methamphetamine). Accordingly, the court properly applied the first portion
of § 2D1.1(b)(5), determining Valdez’ conspiracy involved the importation of
methamphetamine, not precursor chemicals.
      In the light of the foregoing, Valdez’ other challenges to § 2D1.1(b)(5) are
also unavailing. Because his conviction was for liquid methamphetamine, it is
immaterial whether there was any evidence of Valdez’ knowledge of the
importation.   Serfass, 684 F.3d at 551―53.        In addition, despite Valdez’
assertion there was insufficient evidence of his relevant conduct in regard to
the importation, we have held, as here, “possession with intent to
distribute . . . imported methamphetamine, even without more, may subject a
defendant to the § 2D1.1(b)(5) enhancement”. United States v. Foulks, 747
F.3d 914, 915 (5th Cir. 2014). Finally, Valdez’ due-process challenge also fails,
based on our court’s precedent. See Serfass, 684 F.3d at 553 (rejecting the
contention that imposition of the enhancement without a defendant’s
knowledge of importation violated due process).
      AFFIRMED.




                                        3
