     Case: 15-40940   Document: 00513762056   Page: 1   Date Filed: 11/16/2016




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

                              No. 15-40940
                                                                       Fifth Circuit

                                                                     FILED
                            Summary Calendar                 November 16, 2016
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk


                                        Plaintiff-Appellee

v.

JULIO VARGAS-HERNANDEZ,

                                        Defendant-Appellant
…………………………………………
Consolidated With
Case No. 15-40968

UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee

v.

OSIRIS BULOS-GONZALEZ,

                                        Defendant-Appellant
     Case: 15-40940      Document: 00513762056         Page: 2    Date Filed: 11/16/2016


                                   No. 15-40940
                          Cons. w/ 15-40968 and 15-41020

…….……………………………………
Consolidated With
Case No. 15-41020

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GUSTAVO MORALES-MANRIQUEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:14-CR-253-1
                            USDC No. 7:14-CR-898-1
                            USDC No. 7:14-CR-253-2


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendants-Appellants Julio Vargas-Hernandez, Osiris Bulos-Gonzalez,
and Gustavo Morales-Manriquez (“Appellants”) pleaded guilty to hostage
taking in violation of 18 U.S.C. § 1203. The district court sentenced each of
them to 262 months of imprisonment.                In this consolidated appeal, the
Appellants contend that the district court clearly erred by increasing their
offense levels because of the vulnerability of the victims. Additionally, Bulos-




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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    Case: 15-40940     Document: 00513762056     Page: 3   Date Filed: 11/16/2016


                                No. 15-40940
                       Cons. w/ 15-40968 and 15-41020
Gonzalez maintains that the district court clearly erred by refusing to reduce
his offense level based on his mitigating role in the offense.
      We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).           “[T]he
determination of whether a victim is vulnerable is a factual finding that the
district court is best-suited to make.” United States v. Wilcox, 631 F.3d 740,
753-54 (5th Cir. 2011).    A factual finding is not clearly erroneous if it is
plausible in light of the record as a whole. Id. at 753.
      The district court’s determinations that the victims in this case were
vulnerable based on their illegal status and the pregnancy of one of the victims
were not clearly erroneous and are entitled to due deference on appeal. See
United States v. Cedillo-Narvaez, 761 F.3d 397, 403-04 (5th Cir. 2014); Wilcox,
631 F.3d at 753-54. Because the hostages constituted vulnerable victims, and
because the vulnerability of the victims was not taken into account in the
guideline for the underlying offense, the district court did not err by increasing
the Appellants’ offense levels by two pursuant to U.S.S.G. § 3A1.1(b)(1). See
Cedillo-Narvaez, 761 F.3d at 404.
      A sentencing court’s denial of a mitigating role adjustment is a factual
finding reviewed for clear error. United States v. Fernandez, 770 F.3d 340, 345
(5th Cir. 2014). A reduction under U.S.S.G. § 3B1.2 only applies when a
defendant is “substantially less culpable than the average participant.” United
States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir. 2005) (quoting § 3B1.2,
comment. (n.3(A))). “It is not enough that a defendant does less than other
participants; in order to qualify as a minor participant, a defendant must have
been peripheral to the advancement of the illicit activity.” Id. at 204 (internal
quotation marks and citation omitted).



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    Case: 15-40940     Document: 00513762056     Page: 4   Date Filed: 11/16/2016


                                 No. 15-40940
                        Cons. w/ 15-40968 and 15-41020
      The district court’s determination that Bulos-Gonzalez was equally
culpable with the other defendants is plausible in light of the record as a whole.
See Wilcox, 631 F.3d at 753. Bulos-Gonzalez’s participation was not peripheral
to the advancement of the criminal activity, so the district court did not err by
denying his request for a mitigating role reduction. See Villanueva, 408 F.3d
at 204.
      AFFIRMED.




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