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Enhancement Without a Cause: United States v. Serfass and its Erasure of the Scienter Requirement

The current application of the United States Guidelines § 2D1.1(b)(5) importation enhancement in the Fifth Circuit is problematic—it has led to disproportionate sentencing for drug offenses across the nation. In United States v. Serfass, the Fifth Circuit effectively erased the scienter requirement for United States Sentencing Guidelines § 2D1.1(b)(5), which provides for a two-level enhancement if the offense “involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or of methamphetamine from listed chemicals that the defendant knew were imported unlawfully.” Since Serfass in 2012, defendants under the jurisdiction of the Fifth Circuit have received sentencing enhancements for conduct that was not reasonably foreseeable to them, that they were not involved in, and that they had no knowledge of. To date, no other federal circuit has joined the Fifth Circuit in this interpretation of United States Sentencing Guidelines § 2D1.1(b)(5). 
 
This Article addresses the issues stemming from the Serfass holding. This Article also sets forth what this author believes is the correct reading and statutory interpretation of United States Sentencing Guidelines § 2D1.1(b)(5). Lastly, this Article proposes an amendment that should be made to United States Sentencing Guidelines § 2D1.1(b)(5) to clarify that the scienter requirement applies to the importation of both finished-product amphetamine or methamphetamine and precursor chemicals used to manufacture amphetamine or methamphetamine.