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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                  No. 12-41214                      July 30, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                          Plaintiff - Appellee
v.

LUIS FERNANDO CEDILLO-NARVAEZ,

                                          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
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                                  No. 12-41214
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.




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                                 No. 12-41214
      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




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                                        No. 12-41214
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 (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



       1Juan Cedillo pleaded guilty to conspiracy to hostage taking in violation of 18 U.S.C.
§ 1203(a) & 2 and was sentenced to 180 months of imprisonment with no term of supervised
release. However, at Luis Cedillo’s sentencing, the Government noted that Juan Cedillo,
unlike Luis Cedillo, cooperated in the investigation or prosecution of others.
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                                  No. 12-41214
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 also FED. 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


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                                          No. 12-41214
(1993) (quotations and citation omitted) (alteration in original); see also
Johnson v. United States, 520 U.S. 461, 469–70 (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 also 18 U.S.C. § 1203(a). Conspiracy to commit that offense
“requires direct or indirect agreement to commit hostage taking, knowledge




       2 The parties dispute whether we should review this issue and the Vulnerable Victim
Enhancement issue de novo or for plain error. Although Luis Cedillo objected to the
imposition of the Ransom and Vulnerable Victim Enhancements before the district court, he
only objected to the factual predicate; he did not make the legal argument he now advances.
Because Luis Cedillo failed to raise these legal arguments before the district court, we review
the application of these enhancements for plain error. See Dominguez-Alvarado, 695 F.3d at
327–28 (applying plain error review where a defendant “failed to raise his claim of error in a
manner that could have placed the district court on notice of the error he now asserts”);
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (“A party must raise
a claim of error with the district court in such a manner so that the district court may correct
itself and thus, obviate the need for our review.” (citation and quotations omitted)). However,
even if we were to review these issues de novo, we would conclude that the district court did
not err.

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                                       No. 12-41214
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 offense of hostage taking under 18
U.S.C. § 1203 is equivalent to a ransom demand, but we have previously
rejected that argument, and concluded that “[a] ransom demand is not an
element of the offense under 18 U.S.C. § 1203.” United States v. Rivera-Benito,
136 F. App’x 690, 691 (5th Cir. 2005) (unpublished). 3 We are persuaded by our
holding in Rivera-Benito: “Because the fact of a ransom demand is not taken
into account by the base offense level set forth for that offense at § 2A4.1(b)(1),
there was no impermissible double counting.” 4 Id.
b.     Vulnerable Victim Enhancement
       Luis Cedillo also contends that the district court erred in applying the
Vulnerable      Victim     Enhancement        because     the    illegal   status     of   the
undocumented aliens in this case was already “incorporated in the offense
guideline.” 5 U.S.S.G. § 3A1.1 cmt. n.2.


       “An unpublished opinion issued after January 1, 1996 is not controlling precedent,
       3

but may be persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).

       4Even if a demand for ransom was an element of the offense, Luis Cedillo’s argument
would nonetheless fail because double counting is not prohibited here. “[D]ouble counting is
prohibited only if the particular guidelines at issue specifically forbid it.” United States v.
Barraza, 655 F.3d 375, 384 (5th Cir. 2011) (quotations omitted); see also United States v.
Godfrey, 25 F.3d 263, 264 (5th Cir. 1994). While the Sentencing Guidelines forbid “double
counting” for certain enhancements, § 2A4.1 contains no such prohibition. See, e.g., U.S.S.G.
§ 3A1.1 cmt. n.2; U.S.S.G. § 2C1.1 cmt. n.6. Luis Cedillo cites several cases in which this
court concluded that the district court had engaged in impermissible “double counting,” but
each of these cases involved “double counting” specifically prohibited by the Sentencing
Guidelines. See, e.g., United States v. Medina-Argueta, 454 F.3d 479, 482–83 (5th Cir. 2006)
(concluding that district court’s application of § 3A1.1 was impermissible double counting).

       5 The Government argues that Luis Cedillo waived his objection to the application of
the Vulnerable Victim Enhancement because he failed to renew his written objection at the
sentencing hearing. However, this court has previously rejected this precise argument. In
Bender v. Brumnley, 1 F.3d 271 (5th Cir. 1993), the defendants argued that the plaintiff had
failed to preserve an issue for appeal despite filing a written objection, because “he did not
lodge oral on-the-record objections.” Id. at 277. We concluded that the plaintiff’s failure to
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                                       No. 12-41214
       We conclude that the district court did not plainly err in applying the
Vulnerable Victim Enhancement.                Section 3A1.1(b)(1) of the Sentencing
Guidelines provides: “[i]f the defendant knew or should have known that a
victim of the offense was a vulnerable victim, increase by 2 levels.” “Vulnerable
victim” is defined as a victim of the offense of conviction “who is unusually
vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2.
This enhancement should not be applied “if the factor that makes the person a
vulnerable victim is incorporated in the offense guideline.” Id.
       Luis Cedillo argues that the district court plainly erred in applying the
Vulnerable Victim Enhancement based on the illegal status of the
undocumented aliens. He cites a series of cases in which this court has held
that, “[b]ecause an alien’s illegal status is a prerequisite to the crime of alien
smuggling, it is error for a district court to find unusual vulnerability based on
that status.”     Medina-Argueta, 454 F.3d at 482; see also United States v.
Angeles-Mendoza, 407 F.3d 742, 747–48 (5th Cir. 2005); United States v. Dock,
426 F.3d 269, 273 (5th Cir. 2005). These cases are inapposite because Luis
Cedillo was convicted of conspiracy to hostage taking, not alien smuggling. An
alien’s illegal status is not a prerequisite to the offense at issue here, and that
characteristic is not already accounted for in the base offense level. Compare
8 U.S.C. § 1324(a)(1)(A), with 18 U.S.C. § 1203(a); compare U.S.S.G. § 2L1.1
with U.S.S.G. § 2A4.1.           In Angeles-Mendoza, we acknowledged that an
undocumented alien’s illegal status could be the basis for a “vulnerable victim”
finding for offenses that do not necessarily involve illegal aliens:


renew his objection orally was “immaterial” and stated: “We recognize that error is preserved
for appeal so long as the complaining party states his assertion to the trial court prior to the
time when the court invites on-the-record objections.” Id. (citation omitted); see also Lang v.
Tex. & Pac. Ry. Co., 624 F.2d 1275, 1279 (5th Cir. 1980).

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                                 No. 12-41214
            This is not to say that the inherent vulnerability of
            smuggled aliens may never be used as a qualifying
            vulnerability for purposes of a § 3A1.1 upward
            adjustment; other crimes that do not necessarily
            involve smuggled aliens might involve more depravity
            and thus might render the defendant eligible for the
            adjustment where the crime is directed toward aliens
            to take advantage of their inherent vulnerabilities.
407 F.3d at 748 n.7; see also United States v. Garza, 429 F.3d 165, 173 (5th Cir.
2005) (“[N]one of the offenses at issue here . . . necessarily involve
undocumented aliens. The status of Garza’s victims as undocumented aliens
was not taken into account by the base-level offense and consequently would
not be an improper consideration under Angeles-Mendoza.”); United States v.
Sierra-Velasquez, 310 F.3d 1217, 1220 (9th Cir. 2002)(noting that “the crime of
hostage taking is not limited to taking aliens as hostages”). Because the status
of the hostages was not included in the base offense level, we conclude that the
district court did not plainly err in determining that the undocumented aliens
were “vulnerable victims” under § 3A1.1(b)(1) based on their illegal status.
c.    Minor Victim Enhancement
      Luis Cedillo further argues that the district court erred in applying the
Minor Victim Enhancement because that enhancement does not apply “when
a fellow conspirator in the hostage taking has retained the taken child in his
or her custody and the consideration received is no more than the conspirator’s
expected share of the ransom.” United States v. Alvarez-Cuevas, 415 F.3d 121,
122 (1st Cir. 2005)(emphasis added).
      The parties dispute the standard of review for this enhancement.
Although the district court in passing stated that “this might be an appellate
point to pursue,” it is undisputed that Luis Cedillo never objected to the
application of this enhancement. He did not provide the analysis and cases
now presented to our court to the district court. Luis Cedillo’s argument that

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                                       No. 12-41214
the earlier presentation of this issue at the separate sentencing hearing of his
brother preserved the issue is unavailing as such an objection by a different
defendant in a prior proceeding “is not relevant nor is it an acceptable method
of preserving an issue for appellate review.” United States v. Triplett, 922 F.2d
1174, 1183 (5th Cir. 1991). The purpose of the plain error rule is “to enforce the
requirement that parties object to errors at trial in a timely manner so as to
provide the trial judge an opportunity to avoid or correct any error, and thus
avoid the costs of reversal.” United States v. Guerrero-Robledo, 565 F.3d 940,
946 (5th Cir. 2009) (citation and quotations omitted). Because Luis Cedillo
“did not truly afford the district court an opportunity to correct” the purported
error, we review this issue for plain error. Id. However, even if we were to
review this issue de novo, it would not change the outcome.
       We conclude that the district court did not plainly err in applying the
Minor Victim Enhancement.                It is well established that this court’s
“interpretation of the Sentencing Guidelines is subject to the ordinary rules of
statutory construction.” United States v. Carbajal, 290 F.3d 277, 283 (5th Cir.
2002) (citation omitted). If the language of the particular guideline at issue is
unambiguous, “our inquiry begins and ends with an analysis of the plain
meaning of that language.”            Id.    Section 2A4.1(b)(6) of the Sentencing
Guidelines provides: “[i]f the victim is a minor and, in exchange for money or
other consideration, 6 was placed in the care or custody of another person who
had no legal right to such care or custody of the victim, increase by 3 levels.”
This language unambiguously applies to this case: (a) J.A.M.N. is a minor; (b)
J.A.M.N. was placed in the care 7 or custody of Quiroga, who had no legal right


       6   The concurring opinion construes this “consideration” very narrowly. We see
nothing in the guideline or commentary that supports such a narrow interpretation.

       7  At the very least, it cannot be considered “plain” that the term “care” excludes the
care that Quiroga gave, nor does it appear “plain” that the guideline means “exclusive” care
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                                      No. 12-41214
to such care or custody; and (c) Quiroga was paid $500 for her assistance in
caring for and feeding the undocumented aliens, including J.A.M.N.
       Luis Cedillo argues that the Minor Victim Enhancement is inapplicable,
citing Alvarez-Cuevas, which held that the Minor Victim Enhancement does
not apply “when a fellow conspirator in the hostage taking has retained the
taken child in his or her custody and the consideration received is no more than
the conspirator’s expected share of the ransom.” 415 F.3d at 122. However,
this case is factually distinguishable from Alvarez-Cuevas. Here, Quiroga was
not a charged co-conspirator in conspiracy to hostage taking; 8 in fact, there is
no indication that Quiroga was even aware that J.A.M.N. was being held as a
hostage. Moreover, Quiroga was not compensated with an expected share of
the ransom; rather, she was paid $500 to care for and feed the undocumented
aliens, including J.A.M.N., at her residence.             Alvarez-Cuevas is therefore
inapplicable here. We conclude that, under the specific factual circumstances
of this case, the district court did not plainly err in applying the Minor Victim
Enhancement.
d.     Reasonableness
       Luis Cedillo finally argues that the district court’s sentence of 180
months of imprisonment was substantively unreasonable.




or custody as suggested by the concurring opinion. Whatever the policy considerations
underlying this guideline, we look to the plain language of the guideline and conclude that
the district court did not plainly err in applying it.

       8Unlike Juan Cedillo, Luis Cedillo, and Lopez, Quiroga was not indicted on conspiracy
to hostage taking. She pleaded guilty to 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).

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                                      No. 12-41214
       We conclude that the district court did not plainly err in its sentencing
decision, as it was not substantively unreasonable. 9 A district court is required
to impose “a sentence sufficient, but not greater than necessary, to comply
with” the purposes of federal sentencing, in light of the Sentencing Guidelines
and other § 3553(a) factors. 18 U.S.C. § 3553(a); see Freeman v. United States,
131 S. Ct. 2685, 2692 (2011). Similarly, the “reasonableness inquiry on appeal
must be guided by the sentencing considerations set forth in 18 U.S.C.
§ 3553(a).” Smith, 440 F.3d at 706. Luis Cedillo argues that his sentence is
unreasonable because it reflects an unwarranted sentence disparity between
him and many of his co-defendants. See 18 U.S.C. § 3553(a)(6). Specifically,
he notes that, with the exception of his brother, his co-defendants were
sentenced to between 24 and 120 months of imprisonment.                       Because he
received neither an aggravating role adjustment pursuant to U.S.S.G. § 3B1.1
nor a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2, Luis Cedillo
contends that he was an average participant in the offense, and should have
been sentenced to an average sentence, or 72 months of imprisonment.
       However, none of the other defendants, with the exception of Juan
Cedillo who was also sentenced to 180 months of imprisonment, were convicted
of conspiracy to hostage taking in violation of 18 U.S.C. § 1203(a) & 2. Rather,
each of the other defendants were convicted 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). Section
3553(a)(6) “requires the district court to avoid only unwarranted disparities
between similarly situated defendants nationwide, and it does not require the
district court to avoid sentencing disparities between co-defendants who might
not be similarly situated.” United States v. Guillermo Balleza, 613 F.3d 432,


       9We review this issue for plain error because Luis Cedillo failed to object to the
reasonableness of his sentence before the district court. See Ruiz, 621 F.3d at 398; Peltier,
505 F.3d at 391–92.
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                                 No. 12-41214
435 (5th Cir. 2010).    Luis Cedillo was not similarly situated to these co-
defendants, because they had been convicted of different offenses. See id.
(“[S]entence disparities between co-defendants who were convicted of different
charges . . . are not unwarranted disparities under § 3553(a)(6).”).
      AFFIRMED.




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                                 No. 12-41214
JAMES E. GRAVES, JR., Circuit Judge, concurring:
      Although I agree with the rest of the majority’s analysis, I would hold
that the district court plainly erred in applying the § 2A4.1(b)(6) enhancement.
The enhancement applies “[i]f the victim is a minor and, in exchange for money
or other consideration, was placed in the care or custody of another person who
had no legal right to such care or custody of the victim.” The majority finds
the enhancement to be warranted because Luis Cedillo and his co-conspirators
paid Martha Quiroga $500 to house and feed the hostages, including J.A.M.N.,
a minor. The presentence report explains that this money was “in exchange
for the use of [Quiroga’s] residence to harbor undocumented aliens and for her
services to cook for the individuals for approximately two days.”
      I have two objections to the majority’s affirmance of the enhancement on
these facts.   First, in my view, the only reasonable interpretation of
§ 2A4.1(b)(6) is that the defendant must receive money or consideration in
exchange for placing a minor in the care of custody of some unauthorized
person. Here, because Luis Cedillo and his co-conspirators received no money
or other consideration for placing J.A.M.N. in anyone’s care or custody, the
enhancement is not applicable.     Second, even assuming the enhancement
would apply in a situation where a kidnapper or hostage-taker pays a third
party to exercise “care or custody” over a minor victim, J.A.M.N. was never in
the “care or custody” of Martha Quiroga.
                                       I
      “The Sentencing Guidelines are subject to the rules of statutory
construction.” United States v. Rocha, 916 F.2d 219, 243 (5th Cir. 1990). “[T]he
common mandate of statutory construction [is] to avoid absurd results.”
Waggoner v. Gonzales, 488 F.3d 632, 638 (5th Cir. 2007).          The guideline
specifies that there must be an “exchange [of] money or other consideration,”
but, as the First Circuit has noted, “does not specify in which direction the
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                                   No. 12-41214
exchange of money or other consideration must go.” United States v. Alvarez-
Cuevas, 415 F.3d 121, 126 (1st Cir. 2005).
        The language of § 2A4.1(b)(6) . . . most easily fits a kidnap-for-hire
        situation, where the child is kidnapped, by special order, to be
        turned over to the custody of a third party who has no custody
        rights and who has paid the kidnappers to do the job. There, the
        minor, “in exchange for money or other consideration,” is placed
        into the care or custody of a third party who has no custody rights.
        The third party, for example, may be a parent whose custodial
        rights have been terminated. It may also be someone who is
        childless but wants to raise a child, or, even more sadly, a house of
        prostitution.
Id.    However, the literal language of the guideline would also apply to a
kidnapper who hires a babysitter to watch a kidnapped child for an hour: the
kidnapper pays money to the babysitter, and in exchange, the child is placed
into the “care or custody” of the babysitter (who has no legal right to the care
or custody of the child) .
        In my view, it would be absurd to apply a three-level enhancement
equally to both scenarios. The kidnapper-for-hire is clearly more culpable. For
the same reasons that the guidelines punish kidnapping more harshly when a
ransom demand is made, see § 2A4.1(b)(1), it makes sense that a defendant
who kidnaps a child for monetary gain should be punished more harshly than
a defendant who does so for reasons unrelated to monetary gain. However, it
is difficult to understand why a defendant who kidnaps a child is deserving of
an additional three-level enhancement simply for having paid someone to take
care of the child. If anything, such a thing should be encouraged:
        The child does need someone to care for her during the period of
        the kidnapping. There should be no incentive for kidnappers to
        hide or even abandon children (thus avoiding responsibility for
        their custody or care). Such children may fall into even greater
        harm’s way before they are found.



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                                 No. 12-41214
Alvarez-Cuevas, 415 F.3d at 127.        Accordingly, I would hold that the
§ 2A4.1(b)(6) enhancement is intended to apply only when the defendant
receives money or other consideration in exchange for placing a minor in the
care or custody of someone with no legal right.
                                       II
      Even assuming the enhancement would apply in a situation where a
kidnapper or hostage-taker pays a third party to exercise “care or custody” over
a minor victim, it is not applicable here because J.A.M.N. was never in the
“care or custody” of Martha Quiroga. The term “care or custody” is not defined
in § 2A4.1. However, other guidelines use the terms “care” and “custody” in
connection with offenses against minors, and the application notes for these
guidelines are instructive. An unrelated guideline dealing with sexual abuse
of a minor, § 2A3.2(b)(1), provides an enhancement “[i]f the minor was in the
custody, care, or supervisory control of the defendant.” The application notes
explain that this enhancement “is intended to have broad application and is to
be applied whenever the minor is entrusted to the defendant, whether
temporarily or permanently. For example, teachers, day care providers, baby-
sitters, or other temporary caretakers are among those who would be subject
to this enhancement.” Id., comment. (n.2); see also § 2G1.3(b)(1) (parallel
enhancement in guideline for promoting prohibited sexual conduct with a
minor).
      As another court has noted, “[t]eachers, day care providers, and baby-
sitters all act in loco parentis.” United States v. Brooks, 610 F.3d 1186, 1201
(9th Cir. 2010). “Care or custody,” at least in the context of a minor, refers
most naturally to some type of quasi-parental authority or control over the
minor. In this case, J.A.M.N. was traveling with his aunt, Irma Ferrera, who
was attempting to bring him to his father in South Carolina. J.A.M.N. was
therefore in the “care or custody” of Ferrera. Throughout the kidnapping
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                                 No. 12-41214
ordeal, it appears that J.A.M.N. was not separated from Ferrera. It is therefore
at least arguable that J.A.M.N. was never placed in the “care or custody” of the
kidnappers or any third party because he was never separated from the “care
or custody” of his proper guardian.
      Yet even if “custody” is understood in a broader sense, Quiroga clearly
never exercised custody over J.A.M.N. The kidnappers (primarily Luis Cedillo)
exercised physical custody over J.A.M.N. and the other hostages by confining
them in Quiroga’s house for two days under threat of violence, exerting
authority over them, and controlling their movements. However, there is no
suggestion that Quiroga personally exercised any authority or control over the
hostages at all, and the mere fact that her house was used does not place the
hostages in her “custody.” Additionally, although Quiroga helped to take care
of the hostages by cooking meals for them, this does not mean that they were
“placed in her care.” This would be an absurd interpretation of the guideline,
as it would apply to a kidnapper who stops at a restaurant to buy a kidnapped
child a hamburger.
                                       III
      Although I would hold that the district court plainly erred in applying
the § 2A4.1(b)(6) enhancement, I nevertheless conclude that this error did not
affect Luis Cedillo’s substantial rights. See United States v. Escalante-Reyes,
689 F.3d 415, 419 (5th Cir. 2012) (en banc). “A sentencing error affects a
defendant’s substantial rights if he can show a reasonable probability that, but
for the district court’s misapplication of the Guidelines, he would have received
a lesser sentence.” United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir.
2011). The district calculated an offense level of 42 and a criminal history
category of I, giving Luis Cedillo a recommended range of 360 months to life
imprisonment. Absent the § 2A4.1(b)(6) enhancement, the offense level would
have been 39, resulting in a recommended range of 262 to 327 months of
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                                 No. 12-41214
imprisonment.     However, Luis Cedillo was sentenced to 180 months of
imprisonment, far below the correctly calculated minimum sentence.
Moreover, the 180-month sentence was equal to that given to his brother, and
the district court’s sentence was clearly driven by the need to avoid an
unwarranted disparity rather than by any particular guidelines factors.
Because there is no reasonable probability that Luis Cedillo’s sentence would
have been lower under a correctly calculated guidelines range, his substantial
rights have not been affected. Accordingly, I join the majority in affirming Luis
Cedillo’s sentence.




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