Case: 21-40623 Document: 00516505851 Page: 1 Date Filed: 10/12/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-40623 October 12, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Yesenia Yvette Armendariz,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-71-3
Before Southwick, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Yesenia Yvette Armendariz appeals her 210–month sentence
following her guilty plea and conviction of possession with intent to distribute
500 grams or more of methamphetamine. Armendariz argues that the district
court erred when it increased her offense level by two levels pursuant to
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40623 Document: 00516505851 Page: 2 Date Filed: 10/12/2022
No. 21-40623
U.S.S.G. § 2D1.1(b)(5), which applies if the offense involved the importation
of methamphetamine. Specifically, Armendariz contends that the
information contained within the presentence report (“PSR”), upon which
the district court relied in applying this enhancement, was vague and
uncorroborated.
We review de novo a district court’s interpretation or application of
the Sentencing Guidelines and its factual findings for clear error. See United
States v. Muniz, 803 F.3d 709, 712 (5th Cir. 2015). “[I]n determining whether
an enhancement applies, a district court is permitted to draw reasonable
inferences from the facts, and these inferences are fact-findings reviewed for
clear error as well.” United States v. Ramos-Delgado, 763 F.3d 398, 400 (5th
Cir. 2014) (internal quotation and citation omitted). Further, the district
court may “adopt the facts contained in a PSR without further inquiry if
those facts have an adequate evidentiary basis with sufficient indicia of
reliability and the defendant does not present rebuttal evidence or otherwise
demonstrate that the information in the PSR is unreliable.” United States v.
Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002).
A defendant’s offense level may be increased by two levels if the
Government shows by a preponderance of the evidence that the offense
“involved the importation of . . . methamphetamine” and the defendant did
not receive a mitigating role adjustment. § 2D1.1(b)(5); see United States v.
Arayatanon, 980 F.3d 444, 452 (5th Cir. 2020), cert. denied, 142 S. Ct. 378
(2021). The enhancement “applies when ‘the offense involved the
importation of . . . methamphetamine,’ even if the defendant did not know
that the methamphetamine was imported.” United States v. Serfass, 684 F.3d
548, 554 (5th Cir. 2012) (quoting § 2D1.1(b)(5)).
Here, the PSR included sufficient evidence for the district court to
rule, factually, that the methamphetamine Armendariz possessed was
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Case: 21-40623 Document: 00516505851 Page: 3 Date Filed: 10/12/2022
No. 21-40623
imported. First, although Armendariz argues that the district court erred in
relying on a statement obtained from the case agent and contained in the PSR
that the methamphetamine was imported from Michoacan, Mexico, she has
not offered any evidence to rebut this fact or demonstrate its unreliability. See
Cabrera, 288 F.3d at 173-74.
Moreover, other information in the PSR further supports the district
court’s fact determination, including statements obtained from Armendariz
and her co-defendants indicating that Armendariz took possession of 14
kilograms of 97-99%-pure methamphetamine which had been concealed in
the tires of a Chevrolet Silverado. See United States v. Cadena, 642 F. App’x
306, 307-08 (5th Cir. 2016) (explaining that purity and quantity are factors to
consider in determining whether methamphetamine is imported). Similarly,
the PSR noted that Armendariz “corroborated” information from her co-
defendant husband that several men from Michoacan, Mexico came looking
for the drugs.
Accordingly, we cannot say the district court clearly erred in applying
the two-level enhancement under § 2D1.1(b)(5). See Ramos-Delgado, 763
F.3d at 400; Serfass, 684 F.3d at 554.
AFFIRMED.
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