     Case: 18-31266      Document: 00515381400         Page: 1    Date Filed: 04/14/2020




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

                                    No. 18-31266                              FILED
                                  Summary Calendar                        April 14, 2020
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUSTIN FRY,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 2:17-CR-121-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Justin Fry pleaded guilty to one count of kidnapping in violation of 18
U.S.C. § 1201(a)(1). The district court sentenced him to 292 months in prison.
Fry now argues the district court erred when it imposed a six-level
enhancement to his guidelines range under U.S.S.G. § 2A.1(b)(1), which
applies “if a ransom demand . . . was made.” “Ransom” means “a consideration
paid or demanded for the release of someone or something from captivity.”


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31266

United States v. Fernandez, 770 F.3d 340, 343 (5th Cir. 2014). Because Fry did
not object to this enhancement in the district court, our review is for plain
error. See Puckett v. United States, 556 U.S. 129, 135 (2009). To show plain
error, Fry must demonstrate an error that is clear or obvious and that affects
his substantial rights. See id. If he makes such a showing, we have the
discretion to correct the error and should do so if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (citation
omitted; cleaned up).
      Specific-offense characteristics, including the ransom enhancement, are
determined on the basis of “relevant conduct,” including “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant,” U.S.S.G. § 1B1.3(a)(1)(A), and “in the case
of a jointly undertaken criminal activity . . . all acts and omissions of others”
that were “within the scope” and “in furtherance” of the jointly undertaken
criminal activity and “reasonably foreseeable,” id. § 1B1.3(a)(1)(B); see United
States v. Rocha, 916 F.2d 219, 244 (5th Cir. 1990).
      The district court did not err. Fry argues that it was a codefendant who
“orchestrated” the ransom demand and that the enhancement was therefore
inappropriate. But the un-objected-to presentence report reflects that Fry
knowingly participated in demanding ransom. For example, he helped create
a video in which ransom was demanded of the victim’s family. While it was not
Fry himself who made the demand or recorded the video, he actively
participated in demanding the ransom. For example, in a video sent to the
victim’s family, Fry punches the victim’s face shortly after a codefendant tells
Fry that she is recording.
      Fry also contends his sentence is substantively unreasonable. Because
his sentence was within the properly calculated guidelines range, it is entitled



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                                 No. 18-31266

to a rebuttable presumption of reasonableness. See United States v. Simpson,
796 F.3d 548, 557 (5th Cir. 2015). Fry has not rebutted that presumption
because he fails to show that the district court failed to consider a significant
factor, considered an improper factor, or made a clear error of judgment in
balancing the relevant factors. See id. at 557–58.
      AFFIRMED.




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