     Case: 14-40499      Document: 00513095580         Page: 1    Date Filed: 06/26/2015




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

                                    No. 14-40499                                  FILED
                                  Summary Calendar                            June 26, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ONAN HERRERA-SANCHEZ, also known as Frank,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 7:13-CR-566


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Onan Herrera-Sanchez pleaded guilty to conspiracy to take a hostage.
The district court sentenced Herrera-Sanchez to 240 months in prison and a 4
year term of supervised release. Herrera-Sanchez argues that his sentence is
procedurally flawed because the district court misapplied the guidelines and is
substantively unreasonable because the district court failed to consider that he
was coerced into his role in the offense when determining the length of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40499

sentence. Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we engage
in a bifurcated review of the sentence imposed by the district court. United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, this court
considers whether the district court committed a “significant procedural error,”
such as miscalculating the advisory guidelines range. Id. If there is no error
or the error is harmless, this court may proceed to the second step and review
the substantive reasonableness of the sentence imposed for an abuse of
discretion. Id. at 751-53.
      The district court’s denial of a mitigating role reduction is a factual
finding reviewed for clear error. United States v. Villanueva, 408 F.3d 193, 203
(5th Cir. 2005). It is the defendant’s burden to show that his role in the offense
was minor or minimal. See United States v. Garcia, 242 F.3d 593, 597 (5th Cir.
2001). On appeal, Herrera-Sanchez has not identified any evidence in the
record indicating that he is entitled to a mitigating role reduction under
U.S.S.G. § 3B1.2. At most he suggests that there were others in the conspiracy
who had leading roles in the offense. Based on the record, it is not clearly
erroneous that the district court found that Herrera-Sanchez knew about the
hostage taking and had conspired with his codefendant in furtherance of the
scheme in advance of the event. Herrera-Sanchez has not shown that he was
a minor participant “peripheral to the advancement of the illicit activity,”
Villanueva, 408 F.3d at 204, much less a minimal participant, entitled to a
mitigating role reduction.
      Herrera-Sanchez argues that his 240-month sentence is substantively
unreasonable because the district court failed to consider that he was coerced
into his role in the offense. Sentences are reviewed for reasonableness in light
of the sentencing factors in 18 U.S.C. § 3553(a). United States v. Mares, 402
F.3d 511, 519-20 (5th Cir. 2005).      Sentences are ordinarily reviewed for



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                                  No. 14-40499

substantive reasonableness under an abuse-of-discretion standard. United
States v. Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010). When a defendant
fails to preserve a claim of error, however, we apply the plain error standard.
United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).         In this case,
Herrera-Sanchez argued the coercion issue at sentencing, but he failed to
object in the district court to the reasonableness of his sentence. We need not
decide the standard-of-review issue as Herrera-Sanchez’s sentence can be
affirmed under either a plain-error or an abuse-of-discretion standard of
review.
      When the district court imposes a sentence within a properly calculated
guidelines range, the sentence is presumptively reasonable. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Although Herrera-Sanchez argues
that the district court failed to consider his assertion of coercion in determining
his sentence, he concedes and the record supports that the district court not
only considered the evidence supporting the coercion claim but rejected the
factual basis for the claim as incredible. Therefore, he has failed to show that
his sentence does not account for a factor that should receive significant
weight, gives significant weight to an irrelevant or improper factor, or
represents a clear error of judgment in balancing sentencing factors. See
Cooks, 589 F.3d at 186. Mere disagreement with the propriety of his sentence
or with the weight given to § 3553(a) factors does not suffice to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Herrera-Sanchez
has not shown any abuse of the district court’s discretion, much less plain
error. The judgment of the district court is AFFIRMED.




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