     Case: 09-60710 Document: 00511294034 Page: 1 Date Filed: 11/15/2010




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

                                                 FILED
                                                                         November 15, 2010

                                       No. 09-60710                         Lyle W. Cayce
                                                                                 Clerk

ABEL FERNANDEZ-HERNANDEZ,

                                                   Petitioner
v.

UNITED STATES PAROLE COMMISSION,

                                                   Respondent




                        Appeal from the Determination of the
                         United States Parole Commission
                                 No. 18 USC 4106A


Before D EMOSS, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Abel Fernandez-Hernandez (Fernandez) appeals the United States Parole
Commission’s determination of his release date. 18 U.S.C. § 4106A directs the
Parole Commission to “determine the release date for prisoners convicted under
the laws of a foreign country and transferred to the United States pursuant to
[the Prisoner Transfer T]reaty to serve [their] sentence for the foreign
conviction.” Hansen v. U.S. Parole Comm’n, 904 F.2d 306, 308 (5th Cir. 1990).
Fernandez was convicted under Mexican law for kidnapping, aggravated

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60710

kidnapping, and escape from prison and property damage. He was sentenced to
forty years and nine months’ imprisonment. Several years after his convictions,
Fernandez requested a transfer to serve his sentences in the United States. To
determine his release date, the Parole Commission applied the United States
Sentencing Guidelines (U.S.S.G.) as if Fernandez was convicted in a United
States district court for the same offenses. See id. The Parole Commission
calculated a guideline range of 151 to 188 months and set Fernandez’s release
date for November 13, 2019, after the service of 156 months of imprisonment.
Fernandez timely appealed the release date determination.
                                         A.
      Fernandez argues that the Parole Commission erred in applying a two-
level adjustment to his offense level for abuse of trust. U.S.S.G. § 3B1.3 provides
for a two-level increase to a defendant’s offense level “[i]f the defendant abused
a position of public or private trust . . . in a manner that significantly facilitated
the commission or concealment of the offense.” The adjustment also applies in
the situation where a defendant provided a sufficient indicia to the victim that
he legitimately held a position of trust even if he did not, in fact, hold such a
position. U.S.S.G. § 3B1.3 cmt. background.
      For the first time on appeal, Fernandez avers that the Parole Commission
erred in applying the adjustment because the kidnapers did not provide a
sufficient indicia to the victims that they were police officers such that the
indicia of authority helped facilitate the offense. Because Fernandez failed to
raise this issue to the Parole Commission, we review for plain error. Jacobs v.
U.S. Parole Comm’n, 29 F.3d 624, at *1 (5th Cir. 1994) (unpublished table
decision); see 5 TH C IR. R. 47.5.3. To establish plain error, Fernandez must first
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes
such a showing, this court may exercise its discretion to correct the error but

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                                   No. 09-60710

only if it “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” See id. (citation omitted) (alternation in original).
         As to the kidnapping, the record indicates that Fernandez and one of his
accomplices approached the victims, informing the victims that they were
judicial police. They demanded that the victims exit their vehicle and go with
them. The victims complied. The record also indicates that as to the aggravated
kidnapping, the victims were driving when Fernandez or one of his accomplices
told the victims that they were judicial police and demanded that they pull over.
The driver indicated that he did not want to comply but the other individuals in
his vehicle persuaded him to obey, reasoning that they had done nothing wrong.
The Parole Commission’s finding that Fernandez abused a position of trust and
that abuse of trust significantly facilitated the commission of the offense is not
clearly erroneous. See United States v. Fisher, 7 F.3d 69, 70-71 (5th Cir. 1993).
Fernandez has failed to establish plain error.
                                        B.
         Fernandez also argues that the Parole Commission erred in determining
his release date by failing to give him credit for the days he spent in custody in
connection with the kidnapping offenses before the commencement of his
sentences. Fernandez seeks credit for the time he spent in custody in the United
States while awaiting extradition for the kidnapping offenses from December 17,
1999 to December 5, 2001. Fernandez failed to seek this relief before the Parole
Commission. Accordingly, we review for plain error. See Jacobs, 29 F.3d 624,
at *1.
         18 U.S.C. § 4105(b) provides that a “transferred offender shall be given
credit toward service of the sentence for any days, prior to the date of
commencement of the sentence, spent in custody in connection with the offense
or acts for which the sentence was imposed.” Here, Fernandez was incarcerated
in the United States while awaiting extradition for the kidnapping offenses from

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                                   No. 09-60710

December 17, 1999 to December 5, 2001 and did not receive credit toward the
service of his sentences for this time he spent in custody. Arguably, there is
error that is clear and obvious under current law.
      Fernandez has, however, failed to establish that the error affected his
substantial rights. To establish that an error affected his substantial rights,
Fernandez must show a reasonable probability that, but for the error, he would
have received an earlier release date. See United States v. Davis, 602 F.3d 643,
647 & n.6 (5th Cir. 2010). The Parole Commission indicated that it used the
bottom of the guidelines range to determine Fernandez’s sentence because he did
not begin to receive credit for time served on the pertinent offenses until 2006,
despite having been incarcerated prior to 2006. Using the upper end of the
guideline range and giving Fernandez credit for the time he was incarcerated
awaiting extradition, the Parole Commission could have determined the same
release date for Fernandez. Fernandez has failed to demonstrate error that
affected his substantial rights.
      AFFIRMED.




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