United States Court of Appeals

for the Fifth Circuit ____________

No. 23-40072

____________

United States of America, 

Plaintiff—Appellee, 

versus

Jonathan Rolando Ortiz-De Leon, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:22-CR-716-1 

______________________________

Before Richman, Chief Judge, Stewart, Circuit Judge, and Hanks, 

District Judge.*

Per Curiam:**

On September 14, 2022, Jonathan Rolando Ortiz-De Leon pleaded

guilty to hostage taking in violation of 18 U.S.C. § 1203. His charge 

originated in his kidnapping a four-year-old child and demanding a ransom 

from the child’s father, as part of a larger business to smuggle persons over 

the United States-Mexico border. The district court sentenced Ortiz-De 

_____________________

* District Judge for the Southern District of Texas, sitting by designation.

** This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

February 6, 2024

Lyle W. Cayce

Clerk

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Leon to 174 months of imprisonment. On appeal, he argues that the district 

court plainly erred by imposing a three-level sentencing enhancement under

U.S.S.G. § 2A4.1(b)(6), which applies if “the victim is a minor and, in 

exchange for money or other consideration, was placed in the care or custody 

of another person who had no legal right to such care or custody of the 

victim.” We affirm the district court’s judgment.

I

A

Nayelie Fabiola Mejia-Lopez paid approximately $7,000 for her and 

her four-year-old son, L.Z.R.M., to be smuggled into the United States from 

Mexico. Mejia-Lopez and her son were housed in a stash house in the United 

States for eleven days with minimal food and no electricity or running water. 

The smugglers forcibly removed L.Z.R.M. from his mother at the request of 

the boy’s father (Sabdi Minyamin Roblero-Bravo) who separately paid 

$2,500 to have his son transported to him. Approximately one week later, an 

individual involved with the smuggling enterprise told Roblero-Bravo that he 

would not release L.Z.R.M. until an additional $6,000 was paid, an amount 

that was later raised to $6,500.

Homeland Security Investigations (HSI) in Houston received 

information about L.Z.R.M. The same day, an undercover HSI agent posed 

as the boy’s uncle and contacted the smuggler at the phone number RobleroBravo provided. The smuggler demanded a ransom payment of $6,500 and 

implied that if the money was not paid, L.Z.R.M. would be harmed.

The undercover HSI agent contacted the suspects and proposed to 

meet at an IKEA parking lot to exchange the ransom money for L.Z.R.M. 

The suspects agreed on the condition that they would first receive the cash, 

and L.Z.R.M. would be delivered later. Agents also tracked a phone, that 

proved to be Ortiz-De Leon’s, to locate L.Z.R.M.

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On the same day that agents tracked that phone, Ortiz-De Leon was 

seen driving a blue Nissan SUV with paper tags. Agents surveilled the 

vehicle, leading them to an apartment complex in Stafford, Texas. At the 

complex, the agents witnessed Ortiz-De Leon interacting with children, one 

of whom matched the description of L.Z.R.M. Agents then stopped OrtizDe Leon’s vehicle (in which Ortiz-De Leon and Carlos Oyervides were 

riding) in the apartment parking lot. The agents called the number they had 

been using to communicate with the suspects and heard a phone ring inside 

the vehicle. Subsequently, the agents arrested Ortiz-De Leon and Oyervides.

Following the arrest, officers from the Houston Police Department 

conducted a “knock and talk” at the apartment complex. While there, the 

officers spoke with Ortiz-De Leon’s wife, Evelyn Serna, who consented to a 

search of the apartment. The officers found L.Z.R.M. in the apartment.

Ortiz-De Leon waived his Miranda rights and confessed, claiming this 

was the first time he was involved in taking a minor hostage. He admitted 

that he kept L.Z.R.M. in his home and that he was to be paid $1,000 for doing 

so. Ortiz-De Leon also admitted that he requested Roblero-Bravo pay $6,500 

for the return of L.Z.R.M. However, he denied contacting the child’s uncle 

(the undercover agent) on the day of his arrest and instead placed the blame 

on Oyervides.

Ortiz-De Leon outlined the events leading up to his arrest. He related 

that Oyervides and Gilbert Montez contacted him and requested that he pick 

up a child at a Houston Kroger. Ortiz-De Leon picked up L.Z.R.M. and was 

supposed to contact the child’s father but could not reach him.

Consequently, Ortiz-De Leon brought L.Z.R.M. home and placed him in the 

care of his wife. His wife was angry at him and informed him that he was 

committing a crime.

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Ortiz-De Leon said that on the day of his arrest, Montez contacted 

him. In this conversation, Montez instructed Ortiz-De Leon not to deliver 

L.Z.R.M. because “law enforcement had disrupted his operations down 

south.” Instead, Oyervides came to Ortiz-De Leon’s home and said they 

would send someone else to deliver L.Z.R.M. Text messages from Ortiz-De 

Leon’s phone indicate that he offered Carlos Catalan $200 to deliver 

L.Z.R.M.

B

A three-count indictment was filed against Ortiz-De Leon in the 

Southern District of Texas. For this appeal, the relevant count is Count 3: 

hostage taking in violation of 18 U.S.C. § 1203. Ortiz-De Leon entered into 

a plea agreement. In exchange for pleading guilty to Count 3, the 

Government agreed to (a) not oppose his request for full credit for his 

acceptance of responsibility and to (b) dismiss any remaining counts.

Subsequently, the Probation Office prepared a Presentence 

Investigation Report (PSR) for Ortiz-De Leon’s sentencing. Ortiz-De 

Leon’s base offense level was 32, pursuant to U.S.S.G. § 2A4.1(a). Several 

upward adjustments were assessed. First, a six-level increase pursuant to 

U.S.S.G. § 2A4.1(b)(1) was proposed because Ortiz-De Leon demanded a 

ransom. Second, a one-level increase pursuant to U.S.S.G. § 2A4.1(b)(4)(B) 

was proposed because Ortiz-De Leon did not release L.Z.R.M. before seven 

days had elapsed. Third, a three-level increase pursuant to U.S.S.G. 

§ 2A4.1(b)(6) was proposed because “the victim is a minor and, in exchange 

for money or other consideration, was placed in the care or custody of 

another person who had no legal right to such care or custody of the victim.” 

Fourth, a two-level increase pursuant to U.S.S.G. § 3A1.1(b)(1) was 

proposed because Ortiz-De Leon knew or should have known that a victim of 

the offense was a vulnerable victim. The total adjusted offense level was 44. 

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The probation officer recommended a one-level reduction, pursuant to 

U.S.S.G. Ch. 5, Pt. A, Commentary to Sentencing Table, cmt. n.2. The 

resulting total offense level was 43, and Ortiz-De Leon’s criminal history 

category was I based on his prior conviction in 2015 for assault of a family 

member.

The district court did not fully adopt the PSR’srecommendations. As 

Ortiz-De Leon accepted responsibility, the district court applied a three-level 

reduction pursuant to U.S.S.G. § 3E1.1(a) and (b). While that reduction 

should have brought the total to level 40, the district court incorrectly 

reported the number as 41. Next, the district court rejected the two-level 

vulnerable victim enhancement pursuant to U.S.S.G. § 3A1.1(b)(1),resulting 

in the total offense level 39. The district court overruled Ortiz-De Leon’s 

objection to the one-level increase pursuant to § 2A4.1(b)(4)(B) because 

L.Z.R.M. was held longer than seven days.

At this point, the total offense level calculated by the district court was 

39, and Ortiz-De Leon’s criminal history category was I. The corresponding 

sentencing guidelines range was 262 to 327 months of imprisonment. The 

district court granted the Government’s motion for downward departure but 

refused to “do more than what they recommend” because of the “very 

serious offense.” The district court sentenced Ortiz-De Leon to 174 months 

of imprisonment. Ortiz-De Leon timely appealed.

II

Ortiz-De Leon argues that the district court committed reversible 

error by applying the sentencing enhancement under U.S.S.G. 

§ 2A4.1(b)(6). He contends that the enhancement does not apply and relies 

on the First Circuit’s interpretation of § 2A4.1(b)(6) in United States v. 

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Alvarez-Cuevas,

1 which held that the enhancement is inapplicable “when a 

fellow conspirator in the hostage taking has retained the taken child in his or 

her custody and the consideration received is no more than the conspirator’s 

expected share of the ransom.”2

The Government argues that neither our circuit nor other circuits 

have adopted the First Circuit’s interpretation of § 2A4.1(b)(6) in AlvarezCuevas. Second, the Government contends that the facts of this case “are 

easily distinguished from those of Alvarez-Cuevas.” Third, the Government 

stresses that Ortiz-De Leon did not satisfy the fourth prong of plain error 

review.

Although Ortiz-De Leon filed several objections to the PSR, he did 

not object to the three-level enhancement pursuant to § 2A4.1(b)(6). 

Consequently, Ortiz-De Leon concedes that he failed to preserve a 

sentencing error and that plain error review applies.

Ortiz-De Leon must show (1) an error, (2) that is clear or obvious, and 

(3) that affected substantial rights.

3

 A sentencing error affects a defendant’s 

substantial rights if “he can show a reasonable probability that, but for the 

district court’s misapplication of the Guidelines, he would have received a 

lesser sentence.”4 Even if the defendant makes such a showing, this court 

has discretion to correct the error only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.”5

 Ortiz-De Leon has 

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1 415 F.3d 121 (1st Cir. 2005).

2 Id. at 122.

3 United States v. Brown, 437 F.3d 450, 451 (5th Cir. 2006).

4 United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam).

5 Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 

507 U.S. 725, 736 (1993)); see also United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th 

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the burden to demonstrate that all four prongs are met,6 and the Supreme 

Court has instructed that “[m]eeting all four prongs is difficult, ‘as it should 

be.’”7

We agree with the Government that Ortiz-De Leon’s reliance on the 

First Circuit’s interpretation of § 2A4.1(b)(6) in Alvarez-Cuevas is 

insufficient. First, a single out-of-circuit case does not establish plain error.

Ortiz-De Leon has not shown that any error on the part of the district court 

was “clear or obvious, rather than subject to reasonable dispute.”8 

Moreover, in United States v. Cedillo-Narvaez,9 our court declined to adopt 

the First Circuit’s interpretation due to distinguishable facts. The “lack of

binding authority is often dispositive in the plain-error context.”10 Although 

a defendant “need not show that the specific factual and legal scenario has 

been addressed,” he “must at least show error in the ‘straightforward 

applications of case law.’”11 Ortiz-De Leon appears to request an extension 

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Cir. 2012) (en banc) (“Additionally, we do not view the fourth prong as automatic if the 

other three prongs are met.”).

6 United States v. Lavalais, 960 F.3d 180, 186 (5th Cir. 2020) (“The defendant has 

the burden to demonstrate that all four prongs of plain error review are met.”).

7 Puckett, 556 U.S. at 135 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 

83 n. 9 (2004)).

8 Puckett, 556 U.S. at 135.

9 761 F.3d 397, 405 (5th Cir. 2014) (noting that the case was factually 

distinguishable from Alvarez-Cuevas).

10 United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015); see also United States 

v. Acuna-Ramirez, 673 F. App’x 463, 464 (5th Cir. 2017) (per curiam) (unpublished) (“In 

the absence of binding precedent, or even clear analogous precedent, this court will not find 

plain error in this case.”).

11 United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012) (quoting United 

States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009)).

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of our case law, but “an error is not plain if it requires the extension of 

precedent.”12

Second, the facts of the First Circuit’s decision in Alvarez-Cuevas are 

distinguishable from the present case. In Alvarez-Cuevas, the defendant and 

his co-conspirators kidnapped a man and his six-year-old step-daughter, left 

the child with two other (indicted) co-conspirators, and demanded a 

$500,000 ransom for the safe return of the child.13 Ultimately, the First 

Circuit held that the enhancement under § 2A4.1(b)(6) is inapplicable 

“when a fellow conspirator in the hostage taking has retained the taken child 

in his or her custody and the consideration received is no more than the 

conspirator’s expected share of the ransom.”14

Unlike Alvarez-Cuevas wherein the only compensation to the 

defendant was a share of the ransom money,15 Ortiz-De Leon was supposed 

to receive $1,000 for keeping L.Z.R.M. in his home. This situation resembles 

Cedillo-Narvaez wherein the caretaker was not compensated with an 

expected share of the ransom but rather was paid a flat fee ($500) for her 

services.16 Additionally, the minor in the present case was left in the custody 

of not only Ortiz-De Leon but also his wife. Ortiz-De Leon’s case is factually 

distinguishable from Alvarez-Cuevas, and here as in Cedillo-Narvaez, the 

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12 Id.; see also Jimenez v. Wood Cnty., 660 F.3d 841, 847 (5th Cir. 2011) (en banc) 

(“Indeed, we have previously held that even where an argument merely requires extending 

existing precedent, the district court’s failure to do so cannot be plain error.”).

13 United States v. Alvarez-Cuevas, 415 F.3d 121, 122 (1st Cir. 2005).

14 Id.

15 Id. at 124.

16 United States v. Cedillo-Narvaez, 761 F.3d 397, 405 (5th Cir. 2014).

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district court did not plainly err by applying the enhancement under 

§ 2A4.1(b)(6).

III

Lastly, Ortiz-De Leon’s appeal fails because he has not made a 

showing for the fourth prong of plain error, namely that the purported error 

“seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.”17 As previously mentioned, the defendant bears the burden of 

demonstrating that all four prongs are satisfied.18 Although Ortiz-De Leon 

mentions the fourth prong in passing, he does not explain how it applies to 

the facts of his case.

* * *

For the foregoing reasons, the district court’s judgment is 

AFFIRMED. 

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17 Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 

507 U.S. 725, 736 (1993)).

18 United States v. Lavalais, 960 F.3d 180, 186 (5th Cir. 2020) (“The defendant has 

the burden to demonstrate that all four prongs of plain error review are met.”); see also

United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013) (“Importantly, the 

burden is on the defendant to demonstrate that the error affects the fairness, integrity, or 

public reputation of judicial proceedings.”).

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