     Case: 16-11544      Document: 00514069433         Page: 1    Date Filed: 07/12/2017




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

                                    No. 16-11544                                  FILED
                                  Summary Calendar                            July 12, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KACEY CROXTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-119-2


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Kacey Croxton pleaded guilty to conspiracy to possess with intent to
distribute a mixture and substance containing a detectable amount of
methamphetamine. After granting the Government’s motion for a downward
departure pursuant to U.S.S.G. § 5K1.1, the district court sentenced Croxton
below the applicable guidelines range to 180 months of imprisonment, to be
followed by three years of supervised release. She now appeals her sentence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11544    Document: 00514069433     Page: 2   Date Filed: 07/12/2017


                                 No. 16-11544

      Croxton challenges the district court’s application of a two-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(5). Croxton does not dispute
that the methamphetamine in this case was imported from Mexico, but rather,
she asserts that no evidence established that she knew that the drugs had been
imported, as required by the Guideline.         She further argues that the
enhancement should not apply because any importation did not constitute
relevant conduct under U.S.S.G. § 1B1.3. We review these arguments for plain
error only as Croxton did not preserve the issue in the district court. See
United States v. Benitez, 809 F.3d 243, 248-49 (5th Cir. 2015), cert. denied, 136
S. Ct. 1694 (2016).
      This court has held that the § 2D1.1(b)(5) enhancement applies
“regardless of whether the defendant had knowledge of that importation.”
United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012). Thus, Croxton’s
argument that she had no knowledge of the importation of the drugs is
foreclosed by binding precedent which we decline to revisit herein. Id.; see also
United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002) (holding
that a panel of this court may not overrule 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). As for Croxton’s argument that
the enhancement should only be applied if the importation qualifies as relevant
conduct under § 1B1.3, this court has held that “distribution (or possession
with intent to distribute) of 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). Because the methamphetamine
Croxton possessed was imported from Mexico, the enhancement was properly
applied. See id.




                                       2
    Case: 16-11544     Document: 00514069433    Page: 3   Date Filed: 07/12/2017


                                 No. 16-11544

      Croxton also argues that her sentence is substantively unreasonable
because the Guideline governing trafficking of methamphetamine, U.S.S.G.
§ 2D1.1, is not empirically based and produces sentencing ranges that are
overly severe and that do not fulfill the goals of 18 U.S.C. § 3553(a). We review
this argument, which is raised for the first time on appeal, for plain error. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).        Croxton’s
contention that the district court should have taken into account the empirical
basis for the methamphetamine Guideline is foreclosed. See, e.g., United States
v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009). Furthermore, her general
disagreement with the propriety of the sentence imposed does not suffice to
show substantive unreasonableness. See United States v. Ruiz, 621 F.3d 390,
398 (5th Cir. 2010).
      The judgment of the district court is AFFIRMED.




                                       3
