     Case: 13-41026       Document: 00512944273         Page: 1     Date Filed: 02/23/2015




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

                                     No. 13-41026
                                                                                       Fifth Circuit

                                                                                     FILED
                                   Summary Calendar                           February 23, 2015
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


                                                  Plaintiff - Appellee

v.

BERNARDINO SANCHEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:13-CR-19


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Bernardino Sanchez challenges his 210-month sentence, imposed
following his guilty-plea conviction for aiding and abetting hostage taking, in
violation of 18 U.S.C. §§ 1203 and 2. He asserts the court committed reversible
error in enhancing his offense level by six, pursuant to Sentencing Guideline
§ 2A4.1(b)(1) (six-level increase for ransom demand),                based on a ransom
demand of $700,000. Claiming he believed the kidnapping was performed to


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 13-41026

collect a debt the victim’s father owed a co-conspirator, Sanchez asserts a
ransom demand was not reasonably foreseeable, and, therefore, the
enhancement was imposed erroneously.
      As discussed below, this court conducts a bifurcated review of a sentence
for reasonableness. E.g., United States v. Fernandez, 770 F.3d 340, 342 (5th
Cir. 2014). Assessed initially is whether a significant procedural error, such
as improperly calculating the Guidelines-sentencing range, was committed by
the court.    Id.   Along that line, although post-Booker, the Guidelines are
advisory only, and a properly preserved objection to an ultimate sentence is
reviewed for reasonableness under an abuse-of-discretion standard, the
district court must still properly calculate the advisory Guidelines-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its
application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008).
      Guideline § 2A4.1(b)(1) provides for a six-level enhancement of an
offense level if, inter alia, “a ransom demand . . . was made”. A defendant
involved in a “jointly undertaken criminal activity” is subject to the
enhancement for “all reasonably foreseeable acts and omissions of others in
furtherance of . . . [such] activity”. U.S.S.G. § 1B1.3(a)(1)(B).
      As in Fernandez, Sanchez’ claim fails. There, a co-defendant of Sanchez’
made the claim made here by Sanchez: he believed the kidnapping in which
he participated related to a debt owed by the victim’s father; and the ransom
demand was not reasonably foreseeable. 770 F.3d at 342. Our court upheld
application of the enhancement, holding: “the ransom enhancement applies
anytime a defendant demands money from a third party for a release of a



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                                No. 13-41026

victim, regardless of whether that money is already owed to the defendant”.
Id. at 343 (citation and internal quotation marks omitted).       Accordingly,
Fernandez’ belief that he and his co-conspirators would demand repayment of
a debt was a sufficient basis for applying the enhancement. Id.
     AFFIRMED.




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