IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40499

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

June 26, 2015

Lyle W. Cayce

Clerk

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No. 14-40499

2

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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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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