     Case: 15-41328      Document: 00513559657         Page: 1    Date Filed: 06/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41328
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 22, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARTIN MARGARITO-CASIMIRO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-100-1


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Martin Margarito-Casimiro appeals the 480-month sentence imposed
following his guilty plea conviction for kidnapping. He argues that the district
court plainly erred in finding that there was a sufficient factual basis to
support his guilty plea because there was no evidence that an instrumentality
of interstate commerce was used in furtherance of the offense. Specifically, he
asserts that the one cell phone call involved in the instant case was not in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-41328     Document: 00513559657      Page: 2   Date Filed: 06/22/2016


                                  No. 15-41328

furtherance of the victim’s kidnapping nor his own ransom demand of
$150,000.
      Margarito-Casimiro did not object to the sufficiency of the factual basis
in the district court. Thus, as he acknowledges, review is for plain error only.
See United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006); Puckett v.
United States, 556 U.S. 129, 135 (2009). Under the plain error standard of
review, Margarito-Casimiro must show the following: (1) a forfeited error; (2)
that is clear or obvious; and (3) that affects his substantial rights. See Puckett,
556 U.S. at 135. If Margarito-Casimiro can satisfy the above three prongs of
plain error review, this court has the discretion to correct the error only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.”    See id. (internal quotation marks and citations omitted).
      It is undisputed that the motive for the victim’s kidnapping was to
retrieve the money owed to a Mexican drug owner. Irrespective of Margarito-
Casimiro’s “own agenda” of wanting more ransom money, Margarito-Casimiro
admitted to kidnapping the victim for ransom and using an instrumentality of
interstate commerce “to-wit, a cellular telephone in committing and in
furtherance of the commission of this offense.” See 18 U.S.C. § 1201(a)(1);
United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001) (en banc).
Accordingly, there was a sufficient factual basis to support Margarito-
Casimiro’s guilty plea. See Puckett, 556 U.S. at 135.
      Even if there was error, Margarito-Casimiro cannot show that the error
affected his substantial rights.     To show an effect on substantial rights,
Margarito-Casimiro must show that, but for the error, there is a reasonable
probability that he would not have pleaded guilty.          See United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v. Castro-Trevino,
464 F.3d 536, 541 (5th Cir. 2006) (factual basis context). As pointed out by the



                                        2
    Case: 15-41328     Document: 00513559657      Page: 3   Date Filed: 06/22/2016


                                  No. 15-41328

Government, Margarito-Casimiro does not brief or argue this point. Further,
Margarito-Casimiro does not make any attempt to show why we should
exercise our discretion under the fourth prong of plain error review.
Accordingly, he has abandoned these issues and his conviction is affirmed. See
United States v. Reyes, 300 F.3d 555, 558 n.2 (5th Cir. 2014); see Puckett, 556
U.S. at 135.
      Margarito-Casimiro does not dispute that his guidelines sentence was
correctly calculated. He does argue, however, that the district court abused its
discretion in not departing from the guidelines on the basis of an
overrepresentation of his criminal history. Margarito-Casimiro further asserts
that the presentence report and the district court’s use of pending charges to
deny his motion for a downward departure resulted in an unreasonable
sentence.
      We lack jurisdiction to review the denial of a downward departure unless
the district court held the mistaken belief that it lacked the authority to depart.
United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). Here, the record does
not reflect that the district court was unaware that it could depart; instead,
the record supports that the district court knew that it could depart, considered
Margarito-Casimiro’s motion for a downward departure on the merits, and
concluded that the motion should be denied because a within-guidelines
sentence was proper. Thus, we lack jurisdiction to consider any argument
challenging the district court’s decision to deny Margarito-Casimiro a
downward departure. See id.
      AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF
JURISDICTION.




                                        3
