United States v. Cedillo-Narvaez

• Decision Date: 30 July 2014
• Docket Number: No. 12–41214.,12–41214.
• Citation: 761 F.3d 397
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Luis Fernando CEDILLO–NARVAEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

761 F.3d 397

UNITED STATES of America, Plaintiff–Appellee

v.Luis Fernando CEDILLO–NARVAEZ, Defendant–Appellant.

No. 12–41214.

United States Court of Appeals,Fifth Circuit.

July 30, 2014.

Terri–Lei O'Malley (argued), Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Michael Martin Essmyer, Sr., Esq. (argued), Essmyer & Daniel, P.C., Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, HAYNES, and GRAVES, Circuit Judges.

HAYNES, Circuit Judge:

Luis Fernando Cedillo–Narvaez (“Luis Cedillo”) appeals the district court's entry of final judgment of sentence and conviction. We AFFIRM.

I. Background

Juan De Dios Cedillo–Narvaez (“Juan Cedillo”) and Jose Angel Lopez (“Lopez”) planned and organized a conspiracy to kidnap a group of undocumented aliens from an alien-smuggling organization in an attempt to extort monies from the family members of the undocumented aliens in exchange for their safe release. Juan Cedillo recruited his brother, Luis Cedillo, and others to participate in the conspiracy. Pursuant to that conspiracy, Lopez and other members of the conspiracy, but not Luis Cedillo, forcibly kidnapped 18 undocumented aliens from a stash house operated by the alien-smuggling organization and transported them to the residence of Martha Quiroga (“Quiroga”). Quiroga was paid $500 for her assistance in caring for and feeding the undocumented aliens, which included J.A.M.N., a 14–year–old boy. There is no evidence that Quiroga knew that the undocumented aliens were being held as hostages, and she was not prosecuted for any crime that would require such knowledge.

Thereafter, members of the conspiracy, including Luis Cedillo, held the undocumented aliens against their will, and contacted their family members with ransom demands. The family members were told that their kidnapped relatives would be killed if they failed to pay. In addition to making ransom demands, Luis Cedillo fed and guarded the undocumented aliens. During these duties, Luis Cedillo carried a pellet gun in his waistband, which he used to intimidate the undocumented aliens. A few days after the kidnapping, a family member of one of the undocumented aliens contacted police investigators, and provided the police investigators with information that led them to Quiroga's residence, where they discovered the 18 undocumented aliens being held captive. Luis Cedillo, Juan Cedillo, Lopez, and several other co-conspirators were arrested. Luis Cedillo was charged with: (1) one count of conspiracy to harbor aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), (a)(1)(A)(iii) & (a)(1)(B)(i); (2) three counts of harboring an alien for commercial advantage or private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II) & (a)(1)(B)(i); and (3) one count of conspiracy to hostage taking in violation of 18 U.S.C. § 1203(a) & 2 (“Count Five”). Luis Cedillo pleaded guilty to Count Five pursuant to a plea agreement with the Government.

Luis Cedillo's Presentence Investigation Report (“PSR”) calculated that his total offense level was 42, which included:

(a) a six-level enhancement pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2A4.1(b)(1) (2011) for a ransom demand (the “Ransom Enhancement”);

(b) a two-level enhancement pursuant to U.S.S.G. § 2A4.1(b)(3) for the use of a dangerous weapon (the “Dangerous Weapon Enhancement”);

(c) a two-level enhancement pursuant to U.S.S.G. § 2A4.1(b)(6) for a minor victim (the “Minor Victim Enhancement”); and

(d) a two-level enhancement pursuant to U.S.S.G. § 3A1.1(b)(1) for a vulnerable victim (the “Vulnerable Victim Enhancement”).

The PSR also calculated Luis Cedillo's criminal history category to be I. As a result, it concluded that Luis Cedillo's range of imprisonment under the Sentencing Guidelines was 360 months to life.

Luis Cedillo filed written objections to the Ransom Enhancement and the Vulnerable Victim Enhancement, but did not object in writing to the Dangerous Weapon Enhancement or the Minor Victim Enhancement. At sentencing, the district court overruled Luis Cedillo's objections to the Ransom Enhancement and the Vulnerable Victim Enhancement. The district court increased the Minor Victim Enhancement to a three-level enhancement, but noted that its applicability “might be an appellate point to pursue.” Cedillo did not object to or otherwise raise any concerns about its application at the sentencing hearing. The district court also granted the Government's motion to increase the reduction for acceptance of responsibility from two to three levels. After recalculation, the district court determined that Luis Cedillo's total offense level was 42 and his criminal history category was I, resulting in a range of imprisonment of 360 months to life under the Sentencing Guidelines.

However, the district court agreed with Luis Cedillo that the application of this range of imprisonment would result in an unwarranted sentence disparity between him and his brother, Juan Cedillo; it therefore sentenced him to 180 months of imprisonment with no term of supervised release.¹ After final judgment was entered, Luis moved for leave to file a late appeal. The district court granted the motion, such that Luis Cedillo's appeal is considered timely.

II. Standard of Review

This court reviews a district court's sentencing decision for reasonableness in a bifurcated review. See United States v. Dominguez–Alvarado, 695 F.3d 324, 327 (5th Cir.2012). First, the court must determine whether the district court committed any significant procedural errors, such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Ortiz, 613 F.3d 550, 554 (5th Cir.2010). For properly preserved claims, this court reviews the district court's interpretation and application of the Sentencing Guidelines de novo. See United States v. Goncalves, 613 F.3d 601, 604–05 (5th Cir.2010); United States v. Norris, 159 F.3d 926, 929 (5th Cir.1998). A district court's findings of fact and its application of the Sentencing Guidelines to those findings of fact are reviewed for clear error. See Goncalves, 613 F.3d at 605; Norris, 159 F.3d at 929. A factual finding is “not clearly erroneous as long as it is plausible in light of the record read as a whole.” United States v. McMillan, 600 F.3d 434, 457–58 (5th Cir.2010) (quotations and citation omitted).

If the court finds no procedural error, it then reviews the substantive reasonableness of a district court's sentencing decision for abuse of discretion, assuming the claim has been properly preserved. See Ortiz, 613 F.3d at 554; Dominguez–Alvarado, 695 F.3d at 327. This reasonableness inquiry “must be guided by the sentencing considerations set forth in 18 U.S.C. § 3553(a).” United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006) (citation omitted). A sentence outside the Sentencing Guidelines “unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” Id. at 708 (citations omitted).

If, however, a defendant has failed to properly preserve a sentencing error, this court reviews the reasonableness of the district court's sentencing determination only for plain error. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir.2010); Dominguez–Alvarado, 695 F.3d at 327; see alsoFed.R.Crim.P. 52(b). In such circumstances, the court may correct the sentencing determination only if: (1) there is error; (2) it is plain; and (3) it affects substantial rights. See United States v. Escalante–Reyes, 689 F.3d 415, 419 (5th Cir.2012)(en banc). If these three prongs are met, then we have the discretion to remedy the forfeited error, but we should not exercise that discretion unless “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotations and citation omitted) (alteration in original); see also Johnson v. United States, 520 U.S. 461, 469–70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

III. Discussion

a. Ransom Enhancement

Luis Cedillo asserts that the district court erred in applying the Ransom Enhancement because a ransom demand is an included characteristic of the offense enumerated in Count Five. He maintains that this resulted in impermissible “double counting,” raising his total offense level under the Sentencing Guidelines by six levels.

We conclude that the district court did not plainly err in applying the Ransom Enhancement to Luis Cedillo.² A demand for ransom is not an element of the offense of conspiracy to hostage taking under 18 U.S.C. § 1203. The elements of the offense of hostage taking are: (1) the seizure or detention of another person; (2) a threat to kill, injure or continue to detain that person; and (3) with the purpose of compelling a third person or government entity to act in some way. See United States v. De Jesus–Batres, 410 F.3d 154, 160 (5th Cir.2005); see also18 U.S.C. § 1203(a). Conspiracy to commit that offense “requires direct or indirect agreement to commit hostage taking, knowledge that the purpose of the agreement was unlawful and joinder in the agreement to further its unlawful purpose.” De Jesus–Batres, 410 F.3d at 160. Luis Cedillo asserts that the third element of the...