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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-40940
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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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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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