USA v. Kacey Croxton

Filing

UNPUBLISHED OPINION FILED. [16-11544 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 08/02/2017 for Appellant Kacey Croxton [16-11544]

Case: 16-11544

Document: 00514069433

Page: 1

Date Filed: 07/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11544
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

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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.

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