HAYNES, Circuit Judge:
Julio Cesar Fernandez appeals his conviction and sentence, arguing the district court erred while calculating his range of imprisonment under the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"). Fernandez argues the district court erred both by applying a six-level enhancement for making a ransom demand and by declining to apply a two-, three-, or four-level reduction for Fernandez's role in the offense. We AFFIRM.
Fernandez, along with Roman Rivera Guillen, Israel Flores, Jose Molina, Bernadino Sanchez, and Alfonso Villasana, planned and executed a conspiracy to abduct an older man in an attempt to collect a drug debt from him. Guillen recruited Flores to abduct the man and showed Flores the location of the man's residence on the day before the abduction. In turn, Flores enlisted the remaining co-conspirators, including Fernandez, to help him execute the abduction.
Flores, Fernandez, Molina, Sanchez, and Villasana drove to the apartment complex specified by Guillen,
The next day, Fernandez and the other co-conspirators met Guillen at a car wash and handed C.G. over to a different group of kidnappers. C.G. was asked whether his family would pay ransom for his release. That same day, C.G.'s father, Daniel Gress, reported C.G.'s abduction to authorities. Daniel Gress told authorities he received phone calls from a Spanish-speaking male earlier that day demanding $700,000 and informing him that C.G. would be harmed if he did not pay the ransom. C.G.'s new abductors kept him overnight, then abandoned him on a dirt road. Guillen, Flores, Fernandez, Sanchez, Molina, and Villasana were arrested.
Fernandez was charged with: (1) one count of conspiracy to take a hostage in violation of 18 U.S.C. § 1203 ("Count One"); and (2) one count of hostage taking in violation of 18 U.S.C. §§ 1203 & 2. Fernandez pleaded guilty to Count One pursuant to a plea agreement with the Government.
Fernandez's Presentence Investigation Report ("PSR") calculated that his total offense level was 38, which included, among other things, a six-level enhancement pursuant to U.S.S.G. § 2A4.1(b)(1) for a ransom demand (the "Ransom Enhancement"). The PSR did not assess a
In his written objections, Fernandez protested that the Ransom Enhancement should not apply because he "was unaware of any ransom demand made by other co-defendants," instead believing "the kidnapping was related to a debt owed by the father, not for a ransom demand." Therefore, he argued the ransom demand was not foreseeable to him and was outside the scope of the conspiracy. Fernandez also requested the district court give him a Mitigating Role Reduction because he lacked any knowledge of the ransom demand.
At sentencing, the district court overruled Fernandez's objections, finding that because Fernandez believed the kidnapping was related to a debt owed by the victim's father, the kidnapping was performed "to compel satisfaction of that debt in whole or in part." The district court applied the Ransom Enhancement, reasoning that the definition of ransom encompasses kidnapping a third party to compel payment of a debt. The district court also declined to apply a Mitigating Role Reduction, noting Fernandez was one of the co-conspirators physically present to break into C.G.'s apartment and forcibly abduct him, and that Fernandez provided part of the "muscle in this kidnapping." The court therefore concluded Fernandez was a "general participant," not a minor participant.
After granting the Government's motion to increase the reduction for acceptance of responsibility from two to three levels pursuant to U.S.S.G. § 3E1.1(b), the district court determined that Fernandez's offense level was 37, his criminal history category was I, and his range of imprisonment was 210 to 262 months under the Guidelines. The district court sentenced Fernandez to 234 months of imprisonment and three years of supervised release. Fernandez timely appealed.
We review 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, we determine whether the district court committed any significant procedural errors, such as "failing to calculate (or improperly calculating) 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, we review 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 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,
Fernandez contends the district court erred in applying the Ransom Enhancement because it was unforeseeable to him that a ransom demand would be made on a third party. Fernandez claims his relevant conduct should only include his intent to abduct the man who owed a debt, not the abduction of C.G., a third party, and ransom demands later made to C.G.'s father.
We conclude that the Ransom Enhancement properly applies to Fernandez. We have not explicitly defined the term "ransom" in U.S.S.G. § 2A4.1(b)(1) in a published opinion. In an unpublished opinion, we interpreted the term according to its plain meaning to denote "`a consideration paid or demanded for the release of someone or something from captivity.'" United States v. Pantoja-Rosales, 494 Fed.Appx. 453, 456 (5th Cir.2012) (unpublished) (quoting Merriam-Webster, http://www.merriam-webster.com).
Fernandez's argument that we should apply the rule of lenity in defining ransom also lacks merit under any standard of review.
The Guidelines provide for a two-, three-, or four-level reduction in a defendant's offense level if the defendant was a minor or minimal participant in the offense. See U.S.S.G. § 3B1.2. Commentary on the Guidelines specifies that the decision of whether to apply these Mitigating Role Reductions "is based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case." U.S.S.G. § 3B1.2 cmt. n.3(C). A minimal participant, eligible for a four-level reduction under § 3B1.2(a), includes "defendants who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. § 3B1.2 cmt. n.4 (noting a "defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant"). A minor participant, eligible for a two-level reduction under § 3B1.2(b), encompasses "a defendant [who plays a part in committing the offense that makes him substantially less culpable than the average participant, and] who is less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2 cmt. n.5.
Fernandez argues the district court erred in refusing to apply a Mitigating Role Reduction, implying that the district court impermissibly relied exclusively on the PSR,
In explaining Fernandez's sentence and its decision not to apply the Mitigating Role Reduction, the district court committed no plain error that affects Fernandez's substantial rights. See Mondragon-Santiago, 564 F.3d at 361-62; see also Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (describing plain error review and noting "there must be an error or defect — some sort of [d]eviation from a legal rule" that is "clear or obvious" (internal citations and quotation marks omitted)). The district court gave a full and adequate explanation for its decision not to apply a Mitigating Role Reduction at sentencing.
AFFIRMED.
In making its overall sentencing decision and in considering the Mitigating Role Reduction, Fernandez asked that the district court not consider a violent incident in which he was involved at a detention center. To the extent Fernandez's citation about exclusively relying on the PSR is meant to refer to reliance on information about the detention-center incident, Fernandez's argument fails. He has not briefed that argument and has failed to present the district court or this court with any information rebutting the PSR's version of events involving the detention center. See Stalnaker, 571 F.3d at 439-40; United States v. Scher, 601 F.3d 408, 413 (5th Cir.2010) (noting that "[i]n making factual determinations at sentencing, the district court is entitled to rely upon the information in the PSR as long as the information bears some indicia of reliability" and that "[t]he defendant bears the burden of presenting rebuttal evidence to demonstrate that the information in the PSR is inaccurate or materially untrue"). As described in the body of this opinion, this court finds no clear error in the district court's refusal to apply a Mitigating Role Reduction. Among other things, the district court found Fernandez was a direct participant in the forcible kidnapping of C.G.