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

                                                 FILED
                                                                        September 10, 2009
                                     No. 08-20521
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SBANY MENDOZA-ROJAS, also known as Jose Luis Maldonado,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-64-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Sbany Mendoza-Rojas (Mendoza) appeals the sentence imposed following
his guilty plea conviction under 8 U.S.C. § 1324 for conspiracy to transport and
harbor undocumented aliens for commercial advantage or private financial gain.
Mendoza argues that the district court erred by applying a four-level
enhancement pursuant to U.S.S.G. § 2L1.1(b)(5)(B) for “brandishing” a firearm




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                        No. 08-20521

during the offense.1 Mendoza maintains that the evidence presented in the
presentence report (PSR) did not show that he “brandished” a weapon because
there was no evidence that he either intended to or did in fact intimidate anyone.
He asserts that the evidence showed only the possibility that he brandished a
firearm.
      The information in the PSR revealed that Mendoza and his co-defendant
Leobardo Ayala-Diaz (Ayala) performed a staged kidnaping of a group of
smuggled aliens who were aware that Mendoza was armed during the drama.
One of the smuggled aliens, Antonio Cruz Tercero-Aguilera, reported that two
vehicles sandwiched the vehicle that the aliens were in – and that an armed
Mendoza and Ayala entered the aliens’ vehicle and absconded with them. A
second alien, Edbin Marin, described how Mendoza had worn a black mask and
had had a gun during the kidnaping. Marin further stated that – after the
kidnaping – Mendoza and Ayala acted as guards at the apartment where the
smuggled aliens were kept. A third smuggled alien, Juan Manuel Linares-
Medina, stated that he did not feel free to leave the apartment where he was
held after the kidnaping and that Mendoza had participated in the kidnaping.
Ayala (the co-defendant) later admitted that he and Mendoza had committed the
kidnaping and guarded the smuggled aliens at the apartment.
      At sentencing, the district court enhanced Mendoza’s offense level
pursuant to Guideline § 2L1.1(b)(5)(B), which provides: “If a dangerous weapon
(including a firearm) was brandished or otherwise used,” the base level should
be increased by four levels. The Guidelines define “brandished” as making a
dangerous weapon “known to another person, in order to intimidate that person,
regardless of whether the weapon was directly visible to that person.” 2 The



      1
       Mendoza does concede, however, that he was subject to the lesser two-level
enhancement under U.S.S.G. § 2L1.1(b)(5)(C) for “possessing” a gun during the offense.
      2
          U.S.S.G. § 1B1.1, cmt. n.1(C) (2007).

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                                         No. 08-20521

district court overruled Mendoza’s objection that he had not used “the weapon
in a way that intimidated.”3
       We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error.4 The district court’s
determination that Mendoza brandished a firearm during the offense is a factual
finding, so we review it for clear error.5 In a futile effort to increase our level of
scrutiny over the district court, Mendoza urges that the brandishing
enhancement requires a specific intent element. But, assuming without deciding
that Mendoza is correct, our focus merely becomes whether Mendoza had made
the dangerous weapon known to the aliens in order to intimidate them – still a
factual issue. Consequently, if the district court’s findings are plausible in light
of the record as a whole, then there is no clear error.6
       Although we are unable to locate binding authority directly addressing
what constitutes “brandished” under Guideline § 2L1.1(b)(5)(B),7 we determine
– given the totality of the circumstances surrounding this offense and the plain
language of the Guideline – that the district court did not clearly err in imposing
the enhancement. Indeed, the information in the PSR showed that Mendoza –
while wearing a black mask and displaying a firearm – participated in a
roadway kidnaping. He subsequently imprisoned the kidnaped aliens. It was



       3
           R. at 87.
       4
           United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
       5
        Cf. United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995); see also United States v.
Fuentes-Jaimes, 301 F. App’x 379, 382 (5th Cir. 2008) (unpublished) (“[Defendant] preserved
this issue in district court by objecting to the upward adjustment on the grounds that his
conduct did not meet the definition of ‘brandished’ under the Guidelines. For this factual
issue, we review for clear error.”).
       6
           Cisneros-Gutierrez, 517 F.3d at 764.
       7
        But see United States v. Fuentes-Jaimes, 301 F. App’x at 382 (unpublished) (upholding
– on virtually identical facts to the ones here in Mendoza’s case – the district court’s
application of the brandishing enhancement under U.S.S.G. § 2L1.1).

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                                           No. 08-20521

reasonable for the district court to infer that Mendoza had – in these volatile
situations – made his weapon known to the smuggled aliens in order to
intimidate them.
         Mendoza also half-heartedly argues that the statements of the smuggled
aliens found in the PSR are unreliable as a matter of law, because the smuggled
aliens were potential criminal defendants (based on their illegal entry into the
United States). We review this question deferentially – for either plain or clear
error.        First, Mendoza failed to raise this argument in the district court –
triggering plain error.8 Second, the alleged unreliability of the smuggled aliens’
statements has to do with credibility – a factual question triggering clear error.9
Mendoza fails – under either standard of review – to meet the heavy burden of
showing that the district court erred in relying upon the statements of the
smuggled aliens.
         AFFIRMED.




         8
             See United States v. Garcia-Mendez, 420 F.3d 454, 455-56 (5th Cir. 2005).
         9
             See Cisneros-Gutierrez, 517 F.3d at 764.

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