IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40747

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE A GARZA-ROBLES, also known as Jose Alberto Garza-Robles, also

known as Betio, also known as Beto;

HECTOR HERRERA-SIFUENTES, also known as Checo

Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Texas

Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Two codefendants appeal from their convictions for kidnapping and

conspiracy to kidnap. Both argue the evidence is insufficient to sustain their

convictions, while one claims an error in sentencing. We AFFIRM.

FACTS

Ramone Santiago Hernandez, Jr. was a drug trafficker living in Laredo,

Texas. In June 2006, Hernandez was in the border city of Miguel Aleman,

Mexico, which is joined with Roma, Texas by a bridge over the Rio Grande. He

was attempting to set up a drug transaction. While there, Hernandez met one

United States Court of Appeals

Fifth Circuit

F I L E D

November 29, 2010

Lyle W. Cayce

Clerk

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of the defendants, Jose Garza-Robles. The latter introduced Hernandez to

Eulalio Suarez-Sifuentes, who was known as “Lalo.” Hernandez was aware that

Lalo and Garza-Robles were members of a drug cartel known as the Gulf Cartel,

and that Lalo was a high-ranking member.

Lalo and Hernandez developed a professional relationship – in a criminal

sense. Eventually, Lalo asked Hernandez to obtain new customers in the United

States for his marijuana. Hernandez arranged for the sale of about 650 pounds

of marijuana to Samuel Gonzalez in Houston, Texas. Hernandez was to be a

middleman in the transaction, delivering Lalo’s drugs to Gonzalez and

Gonzalez’s money to Lalo. Prior to the delivery, Hernandez traveled to Houston

and visited Gonzalez’s house seven or eight times to determine whether

Gonzalez could be trusted. After Hernandez met Gonzalez but before the

marijuana was delivered, Lalo told Garza-Robles to go to Houston so that he

could assist Hernandez with the transaction and protect Lalo’s interest.

The marijuana shipment arrived in Houston in late August 2006.

Hernandez loaded it into a Chevrolet Yukon belonging to Gonzalez’s cousin.

Gonzalez was not home when Garza-Robles and Hernandez arrived at night with

the drugs. They parked the Yukon with its cargo in Gonzalez’s garage, planning

to return the next morning to collect $110,500 owed to Lalo.

The next day, the pair returned to Gonzalez’s house and learned he had

fled with his family, the Yukon, and the marijuana. Garza-Robles and

Hernandez unsuccessfully searched for Gonzalez that day. In the afternoon,

Garza-Robles finally called Lalo and explained what had occurred. When

Hernandez got on the telephone, Lalo told him that he wanted both men to come

to Mexico and explain the situation in person.

Later that night, Lalo called and initially spoke to both men on a speaker

phone. At some point, Lalo told Garza-Robles to turn off the speaker phone, and

the two spoke privately. While on the phone with Lalo, Garza-Robles turned to

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Hernandez and encouraged him to travel to Miguel Aleman, Mexico. Hernandez

stated that he was scared to face Lalo. Garza-Robles said they would be in

trouble and that he also was scared. They left for Mexico the next day. Lalo

called several times while they were driving to ensure they were en route.

Along the way, Hernandez tried to arrange for police to arrest him so he

would not have to face Lalo. Hernandez called the Texas state police from a rest

area when Garza-Robles stopped to take a nap. He told the police officer that

Garza-Robles had a small amount of drugs on him and gave the police the

vehicle description and license plate number. Hernandez’s attempts to be

apprehended before entering Mexico were unsuccessful.

Prior to crossing the border, the two men stopped in Laredo so Hernandez

could take a shower and change his clothes. At that time, Hernandez called his

father who advised him to meet with Lalo to show good faith and to convince him

of what happened. While in Laredo, Hernandez again told Garza-Robles that he

did not want to see Lalo. Garza-Robles responded that they needed to explain

the situation together.

On September 1, the two arrived at Lalo’s estate in Miguel Aleman,

Mexico, which was called Casa Amarilla. Between 10 and 15 heavily-armed men

were present when Hernandez and Garza-Robles arrived. Among them was

Lalo’s cousin, the defendant Hector Herrera-Sifuentes. Lalo arrived a half-hour

later armed with a machine gun and hand grenades. Lalo initially appeared

friendly as Hernandez explained what happened. Lalo then told Hernandez he

would have to pay $110,500 for the lost drugs, and that Hernandez could not

leave until he paid. At Lalo’s signal, the gates to Casa Amarilla shut. Lalo

threatened Hernandez that his family would be killed if he left. He also

instructed the guards to shoot Hernandez if he tried to escape.

During his 16-day detention, Hernandez was under constant guard. He

was threatened and brutalized. The defendants Garza-Robles and Herrera3

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Sifuentes guarded Hernandez at various times during his detention. Both were

present when Hernandez was blindfolded, hit in the face with a gun, kicked in

the ribs, and threatened with death while someone made the sign of a cross on

him with a gun. Because he was blindfolded, Hernandez did not know which

guards were beating him. Among other forms of abuse, he was punched and

kicked, beaten with two-by-fours across his bare buttocks, sliced behind the ear

with razors, wrapped in plastic wrap and beaten, had a gun shoved in his mouth,

and had guns fired very close to his ears.

While detained, Hernandez was permitted to use his cell phone to arrange

payments to Lalo. Hernandez’s father collected $57,500 of Hernandez’s money

but understandably refused to take it to Mexico. On September 2, Lalo sent

Garza-Robles to get the money from Hernandez’s father in Roma, Texas. The

payment was collected without incident. Hernandez also arranged for his

girlfriend in Texas to make another payment on September 16. Lalo sent

another of his operatives, Licensiado, to meet Hernandez’s girlfriend in Roma

and escort her and the money to Miguel Aleman.

At some point between the two payments, Hernandez’s family notified the

FBI that he was being held for ransom in Mexico. Prior to their entering Mexico,

the FBI detained Hernandez’s girlfriend and Licensiado. The FBI had

Licensiado call Lalo to tell him they were detained and that the FBI knew Lalo

was holding Hernandez. After first pretending to be confused, Lalo eventually

permitted Hernandez to walk across the international bridge from Miguel

Aleman to Roma.

Lalo instructed Hernandez to tell the FBI that he had not been kidnapped

and warned Hernandez that Lalo would come after him if he did not return to

Miguel Aleman with the rest of the money. Hernandez agreed to follow Lalo’s

instructions and return with the money. FBI agents met Hernandez halfway

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across the bridge, searched him for weapons, and brought him to Laredo for

debriefing. Hernandez agreed to cooperate with the FBI.

At the FBI’s direction, Hernandez told Lalo over the telephone he would

return to pay the remainder of the debt. Lalo explained that he was in trouble

with his drug cartel superiors. They thought Hernandez had paid Lalo $200,000

for the missing marijuana. His superiors also were upset that Lalo did not seek

permission for the kidnapping. Lalo told Hernandez to return to Miguel Aleman

and explain that he had not been kidnapped and that he only had paid $57,500.

Lalo informed Hernandez he would send Herrera-Sifuentes to Laredo and bring

Hernandez back to Miguel Aleman. Herrera-Sifuentes and Garza-Robles

traveled to Laredo to pick up Hernandez. As the meeting was about to start, the

FBI moved in and arrested the defendants.

Both defendants were charged with kidnapping and conspiring to kidnap

Hernandez in foreign commerce from the United States to Mexico. See 18 U.S.C.

§ 1201. Garza-Robles also was charged with receipt of ransom money. See id.

§ 1202. They were jointly tried and convicted on all counts. They received life

sentences for the kidnapping and conspiracy convictions. Garza-Robles received

an additional 120-month sentence to run concurrently with his life sentence for

the receipt of ransom money conviction. Both filed timely notices of appeal.

DISCUSSION

A. Sufficiency of the Evidence

Garza-Robles and Herrera-Sifuentes challenge the sufficiency of the

evidence supporting their convictions for kidnapping and conspiracy.

Where defendants have preserved a challenge to the sufficiency of the

evidence, as Garza-Robles and Herrera-Sifuentes have, we review the denial of

a judgment of acquittal de novo. United States v. Burns, 162 F.3d 840, 847 (5th

Cir. 1998) (citation omitted). We determine whether, when viewing the evidence

in the light most favorable to the verdict, “a rational trier of fact could have

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found that the evidence established the essential elements of the offense beyond

a reasonable doubt.” United States v. Ferguson, 211 F.3d 878, 882 (5th Cir.

2000).

1. Kidnapping

The elements under this kidnapping statute are: “(1) the transportation

in interstate [or foreign] commerce (2) of an unconsenting person who is (3) held

for ransom or reward or otherwise, (4) such acts being done knowingly and

willfully.” United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001) (citation

omitted); see 18 U.S.C. § 1201(a)(1). There must be proof that the victim was

unlawfully seized, confined, inveigled, kidnapped, abducted, or carried away. 18

U.S.C. § 1201(a). Lack of consent is the only element in dispute.

The Government had to show Hernandez was transported in foreign

commerce after he was seized or confined involuntarily in some manner. See

United States v. McRary, 665 F.2d 674, 678 (5th Cir. 1982). “[N]on-physical

restraint – for instance, fear or deception – can be sufficient to restrain a person

against [his] will.” United States v. Carrion-Caliz, 944 F.2d 220, 225 (5th Cir.

1991). The Government presented two theories on this question. One was that

Hernandez was inveigled into accompanying Garza-Robles into Mexico. The

other was that Hernandez went to Mexico only out of fear for his own and his

family’s safety. The Government urged both theories in its closing argument:

There were two things going on there. One was [Hernandez’s]

fear. He had to go. Trying to think of any way he could be stopped

from going . . . .

The other thing [that] was operating was Lalo’s, on his face,

the words that he was saying, “Come on over here and we’ll talk

about it, and you tell us what is going on.”

Jurors were given an instruction that Hernandez would have crossed the

international border involuntarily if he was either seized or inveigled. The

general verdict jurors reached did not reveal which theory was accepted. If the

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evidence was sufficient to support one theory, the fact that the evidence was

insufficient to support another of the theories does not negate the verdict.

Griffin v. United States, 502 U.S. 46, 59-60 (1991); United States v. Edwards,

303 F.3d 606, 641 (5th Cir. 2002). We examine each theory.

We first look at the evidence that Hernandez was inveigled into Mexico.

The word “inveigle,” a jury instruction stated, “means to lure, or entice, or lead

the person astray by false representations or promises, or other deceitful

means.” The Government argued that Hernandez was inveigled into

accompanying Garza-Robles to Mexico under the false belief that he simply was

going to explain to Lalo in person what happened to the lost load of drugs.

The evidence does not support the Government’s theory. The jurors could

not reasonably find that Hernandez was oblivious to the risks awaiting him in

Mexico. Though he testified he was unaware he would be detained and

brutalized, meaning he did not know the exact form his troubles might assume,

he knew that he and his family were at significant risk. After Garza-Robles told

Lalo of the lost drugs, Garza-Robles turned to Hernandez and said, “We’re going

to be in trouble, you know.” Hernandez repeatedly told Garza-Robles he was

scared and did not want to go to Miguel Aleman. Hernandez testified that he

knew more or less what to expect by going to Mexico. He hoped, though, that

meeting Lalo in person might give him “a chance,” apparently meaning a chance

to live. He admitted he knew he would be held accountable for the value of the

lost drugs.

Acting FBI Supervisor Arturo Fuentes testified that the Gulf Cartel

frequently committed drug-related kidnappings. Fuentes testified that “if you

lose a drug load, if you are working for the Gulf Cartel, they expect you to pay

that money back. And if you don’t pay it back, your family members or you will

be kidnapped until you pay that money back.” He stated the propensity to

kidnap sets the Gulf Cartel apart from other Mexican drug cartels. Hernandez

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was aware he was working for the Gulf Cartel, and as we have indicated, he

knew he faced substantial risks whether or not he went to Mexico to face Lalo.

There was evidence that Lalo sought to deceive Hernandez, but there was

insufficient evidence that the deception was successful and that Hernandez

voluntarily journeyed to Mexico. If the evidence had supported that deception

caused Hernandez to cross the border, we would then need to address the impact

of our precedents that conclude this kidnapping offense does not occur by the

“entirely voluntary act of a victim in crossing a state line even though it is

induced by deception.” United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir.

1979); see also McRary, 665 F.2d at 677. The Government argues this rule is

limited to situations in which the victim took himself across a state line.

Because of our holding that there was insufficient evidence to support the

inveiglement theory, the legal issues are moot.

Before deciding to defer issues that arise under McInnis and McRary, we

considered that the Supreme Court has distinguished between a general verdict

that might be based on a factually unsupported theory and one possibly based

on a legally inadequate theory. Griffin, 502 U.S. at 59. Because jurors “are well

equipped to analyze the evidence” and reject factually unsupported grounds –

indeed, such is a key role for jurors – a verdict of guilt should be sustained as

presumably not being based on a ground for which there was insufficient proof.

Id. (emphasis omitted). Conversely, jurors would not have reason to consider

whether a theory was legally flawed; consequently, their own good judgment

would not have saved them from an error about the law. Id. We have held,

though, that a general verdict is sustainable when the theory that was factually

unsupported was also legally unavailable. United States v. Wilson, 116 F.3d

1066, 1080 (5th Cir. 1997), rev’d on other grounds, United States v. Brown, 161

F.3d 256, 257 n.1 (5th Cir. 1998) (en banc). We conclude that jurors in the

present case would have rejected the unsupported theory due to insufficient

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evidence, a rejection in no way made more or less likely because of the legal

inadequacy that may also exist.

We now examine the sufficiency of the evidence to support the other

theory. It was not necessary that Hernandez be “physically restrained or

confined,” as non-physical restraint arising from fear is enough to support a

kidnapping conviction. Carrion-Caliz, 944 F.2d at 225. Being restrained against

one’s will is the key. Id. A person’s will can be overcome physically or by mental

inducements such as threats. Chatwin v. United States, 326 U.S. 455, 460

(1946). Hernandez’s being sufficiently frightened to travel to Mexico against his

will supports a jury finding that he was seized or confined. A jury instruction

explained that to kidnap meant to “hold, keep, detain, and confine the person

against that person’s will. Involuntariness or coercion in connection with

detention” were part of the offense.

From the beginning, Hernandez told Garza-Robles he was scared to

accompany him to Mexico. Hernandez insisted that Garza-Robles drive to

Mexico because Hernandez was too nervous to drive. Hernandez testified that

he had no choice but to meet Lalo in person because “if you don’t show your face,

they’re going to come and kill your family. That’s the way they work.” On the

way to Mexico, Hernandez called the Texas state police in an attempt to be

arrested. Hernandez testified he told a police officer that he “was being kind of

forced [to] go[] to Mexico, that [he] didn’t want to go because [he] was scared [he]

was not going to come back.” The attempt to be apprehended was unsuccessful.

When questioned why he did not just get out of the truck and run, Hernandez

responded, “I was scared.”

Prior to crossing the border, the pair stopped in Laredo, and Hernandez

again told Garza-Robles he did not want to go see Lalo. Garza-Robles insisted

that Hernandez had to explain in person what happened with the lost drugs.

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When Garza-Robles and Hernandez reached the border, Hernandez did

not inform the border patrol agent of his predicament. Hernandez explained,

“You know, I wanted to get out . . . at that time; I mean, I didn’t want to cross to

Miguel Aleman, but I was just scared about everything, that they were going to

come and get my family.”

Rational jurors could conclude that Hernandez’s travel to Mexico was not

voluntary. They could reasonably find that Hernandez, seized by fear of what

could happen to him and his family, traveled to Mexico against his will.

Accordingly, the evidence was sufficient to support Garza-Robles’ and HerreraSifuentes’ convictions for kidnapping.

2. Conspiracy to Kidnap

Garza-Robles challenges his conviction for conspiracy to commit

kidnapping. He contends that even if there were a conspiracy to kidnap

Hernandez, there is no evidence he was aware of it when he transported

Hernandez in foreign commerce.

To prove conspiracy to commit kidnapping, the Government must

establish: (1) the existence of an agreement between two or more people to

pursue the offense of kidnapping; (2) the defendant knew of the agreement; and

(3) the defendant voluntarily participated in the conspiracy. See United States

v. Montgomery, 210 F.3d 446, 449 (5th Cir. 2000) (citation omitted); 18 U.S.C. §

1201(c). “Direct evidence of a conspiracy is unnecessary; each element may be

inferred from circumstantial evidence.” United States v. Mitchell, 484 F.3d 762,

768-69 (5th Cir. 2007) (citation omitted).

The record contains sufficient evidence from which the jury could infer

Garza-Robles was aware of and acted in accordance with a plan to kidnap

Hernandez. We highlight some of that evidence, though we have also discussed

it earlier. Lalo wanted Garza-Robles to go to Houston and assist Hernandez

with the drug transaction and protect Lalo’s interest. After the drug load was

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lost, Garza-Robles telephoned Lalo and informed him of what happened.

According to Hernandez, Lalo spoke with Garza-Robles privately for an extended

period of time. Garza-Robles then handed the telephone to Hernandez. Lalo

told Hernandez that he and Garza-Robles needed to come to Miguel Aleman and

explain the situation in person. Lalo called back later that evening. GarzaRobles initially had Lalo on speaker phone, but Lalo requested he turn off the

speaker phone. During the private conversation, Garza-Robles turned to

Hernandez and said, “You know what, let’s go. Let’s go.”

Lalo repeatedly called Garza-Robles as the pair traveled to Mexico. When

Hernandez expressed his concern of facing Lalo, Garza-Robles insisted he had

to go with him to Mexico. After arriving at Casa Amarilla, Lalo informed

Hernandez he would be confined there until he paid for the lost load. Hernandez

testified that Garza-Robles was one of the guards who watched him and was

present during many of his beatings. Garza-Robles also went to Texas to pick

up ransom money from Hernandez’s father. In addition, FBI Supervisor Fuentes

testified to the Gulf Cartel’s propensity to commit kidnappings. Garza-Robles

did not dispute he was a member of the Gulf Cartel.

Herrera-Sifuentes has not briefed a challenge to his conspiracy conviction

on appeal. We simply note that because Herrera-Sifuentes admitted that he

guarded Hernandez at Casa Amarilla, there is sufficient evidence he entered the

kidnapping conspiracy at least by the time Hernandez was in Mexico. Joining

a conspiracy after a victim has been transported in foreign commerce creates

criminal responsibility for the prior acts. See United States v. BarksdaleContreras, 972 F.2d 111, 114 (5th Cir. 1992).

There is sufficient evidence from which a rational jury could conclude that

Garza-Robles and Herrera-Sifuentes knew of the conspiracy and were acting in

furtherance of that conspiracy when Garza-Robles transported Hernandez in

foreign commerce and when they both guarded Hernandez in Mexico.

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B. Sentence Enhancement

Garza-Robles argues that the district court erred in imposing a two-level

enhancement for inflicting serious bodily injury upon Hernandez. Garza-Robles

claims that although Hernandez was treated inhumanely and in a manner that

shocks the conscience, he did not sustain “serious bodily injuries” as this term

is defined in the Sentencing Guidelines.

This court reviews a district court’s factual findings in sentencing for clear

error. United States v. Jimenez, 323 F.3d 320, 322 (5th Cir. 2003). “A factual

finding is not clearly erroneous as long as it is plausible in light of the record as

a whole.” Id. at 322-23.

A defendant convicted of kidnapping can receive a two-level enhancement

“if the victim sustained serious bodily injury” while detained. U.S. Sentencing

Guidelines Manual § 2A4.1(b)(2)(B). The Guidelines define “serious bodily

injury” as “injury involving extreme physical pain or the protracted impairment

of a function of a bodily member, organ, or mental faculty; or requiring medical

intervention such as surgery, hospitalization, or physical rehabilitation.” U.S.

Sentencing Guidelines Manual § 1B1.1 app. n.1(L). Even if the defendant did

not inflict the serious bodily injury, he can still be assessed the enhancement as

long as he knew such injuries were being inflicted. See United States v. Davis,

19 F.3d 166, 171 (5th Cir. 1994).

The presentence report indicates that Hernandez had been assaulted

repeatedly resulting in a broken rib, bruised buttocks, and cuts behind the ears.

It was plausible for the district court to conclude these injuries involved

“extreme pain” and therefore qualified as serious bodily injuries.

Based on these injuries, the district court’s finding that Hernandez

suffered serious bodily injury is “plausible in light of the record as a whole.”

Jimenez, 323 F.3d at 323.

AFFIRMED.

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