     Case: 12-41122      Document: 00512497836         Page: 1    Date Filed: 01/13/2014




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

                                                                              FILED
                                    No. 12-41122                       January 13, 2014
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN DE DIOS CEDILLO-NARVAEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:11-CR-1599-1


Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Juan de Dios Cedillo-Narvaez (Cedillo) pleaded guilty to count five of a
third superseding indictment charging him with conspiring to seize and detain
with threats certain aliens in order to compel a third person to pay a sum of
money for their release. A co-defendant, Jose Angel Lopez, pleaded guilty to
count one of the third superseding indictment, conspiring to harbor illegal
aliens. The charges arose from a scheme, organized and planned by Cedillo


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-41122     Document: 00512497836       Page: 2   Date Filed: 01/13/2014


                                    No. 12-41122

and Lopez, to seize a group of illegal aliens from another alien smuggling
operation and hold them while extorting money from family members in
exchange for the aliens’ safe release. In setting a sentence for Cedillo, the
district court departed downward from the guidelines range of life
imprisonment to a term of 180 months of imprisonment based on a U.S.S.G.
§ 5K1.1 motion by the Government. Sentencing Lopez on the harboring illegal
alien charge, the district court imposed a lower sentence of 120 months of
imprisonment.
      Cedillo contends that the unwarranted disparity between his sentence
and Lopez’s lower sentence requires that his sentence be vacated and this
matter remanded for resentencing. Generally, we review the reasonableness
of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007). However, as Cedillo concedes, he did not raise this argument in the
district court and we therefore review only for plain error. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Cedillo contends that, in
granting the § 5K1.1 motion but only departing downwardly to the extent it
did, the district court failed to account sufficiently for the danger faced by him
and his family because of his cooperation with the Government. Additionally,
he avers that, in considering the sentence disparity and the 18 U.S.C. § 3553(a)
factors, the district court failed to adequately account for the facts that Lopez
had a higher criminal history score than Cedillo, that Lopez was on supervised
release at the time of the instant offense, and that Lopez was more culpable in
the instant offense than Cedillo.
      At sentencing, the Government noted that Cedillo had initially been
helpful with the investigation, but then refused to testify against Lopez, forcing
the Government to permit Lopez to plead only to harboring illegal aliens. The
Government recognized that Cedillo’s cooperation had permitted it to charge



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                                  No. 12-41122

other individuals as well, but also argued that Cedillo was ultimately more
culpable than Lopez because Lopez had been the “mastermind” while Cedillo
had been the main actor and enforcer of their plan. Although the Government
recognized the disparity with Lopez’s sentence, the Government did not
recommend a further departure. In light of the district court’s consideration
of the Government’s arguments and recommendation, which was entitled to
substantial weight, Cedillo’s unsupported and conclusory assertions are
insufficient to show that the district court clearly or obviously erred in setting
his sentence. See Puckett v. United States, 556 U.S. 129, 134-35 (2009); Peltier,
505 F.3d at 391-92; United States v. Johnson, 33 F.3d 8, 9 (5th Cir. 1994). As
to Cedillo’s challenge to the extent of the downward departure he received, he
did not allege that the departure was a violation of law and thus failed to show
that the district court acted outside of its discretion in departing to 180 months
of imprisonment. See United States v. Hashimoto, 193 F.3d 840, 843 (5th Cir.
1999). The judgment of the district court is AFFIRMED.




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