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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20521

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SBANY MENDOZA-ROJAS, also known as Jose Luis Maldonado,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:08-CR-64-1

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Sbany Mendoza-Rojas (Mendoza) appeals the sentence imposed following

his guilty plea conviction under 8 U.S.C. § 1324 for conspiracy to transport and

harbor undocumented aliens for commercial advantage or private financial gain.

Mendoza argues that the district court erred by applying a four-level

enhancement pursuant to U.S.S.G. § 2L1.1(b)(5)(B) for “brandishing” a firearm

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2009

Charles R. Fulbruge III

Clerk
No. 08-20521

Mendoza does concede, however, that he was subject to the lesser two-level 1

enhancement under U.S.S.G. § 2L1.1(b)(5)(C) for “possessing” a gun during the offense.

U.S.S.G. § 1B1.1, cmt. n.1(C) (2007). 2

2

during the offense. Mendoza maintains that the evidence presented in the 1

presentence report (PSR) did not show that he “brandished” a weapon because

there was no evidence that he either intended to or did in fact intimidate anyone.

He asserts that the evidence showed only the possibility that he brandished a

firearm.

The information in the PSR revealed that Mendoza and his co-defendant

Leobardo Ayala-Diaz (Ayala) performed a staged kidnaping of a group of

smuggled aliens who were aware that Mendoza was armed during the drama.

One of the smuggled aliens, Antonio Cruz Tercero-Aguilera, reported that two

vehicles sandwiched the vehicle that the aliens were in – and that an armed

Mendoza and Ayala entered the aliens’ vehicle and absconded with them. A

second alien, Edbin Marin, described how Mendoza had worn a black mask and

had had a gun during the kidnaping. Marin further stated that – after the

kidnaping – Mendoza and Ayala acted as guards at the apartment where the

smuggled aliens were kept. A third smuggled alien, Juan Manuel LinaresMedina, stated that he did not feel free to leave the apartment where he was

held after the kidnaping and that Mendoza had participated in the kidnaping.

Ayala (the co-defendant) later admitted that he and Mendoza had committed the

kidnaping and guarded the smuggled aliens at the apartment. 

At sentencing, the district court enhanced Mendoza’s offense level

pursuant to Guideline § 2L1.1(b)(5)(B), which provides: “If a dangerous weapon

(including a firearm) was brandished or otherwise used,” the base level should

be increased by four levels. The Guidelines define “brandished” as making a

dangerous weapon “known to another person, in order to intimidate that person,

regardless of whether the weapon was directly visible to that person.” The 2
No. 08-20521

R. at 87. 3

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 4

Cf. United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995); see also United States v.

5

Fuentes-Jaimes, 301 F. App’x 379, 382 (5th Cir. 2008) (unpublished) (“[Defendant] preserved

this issue in district court by objecting to the upward adjustment on the grounds that his

conduct did not meet the definition of ‘brandished’ under the Guidelines. For this factual

issue, we review for clear error.”).

Cisneros-Gutierrez, 517 F.3d at 764. 6

But see United States v. Fuentes-Jaimes, 301 F. App’x at 382 (unpublished) (upholding

7

– on virtually identical facts to the ones here in Mendoza’s case – the district court’s

application of the brandishing enhancement under U.S.S.G. § 2L1.1).

3

district court overruled Mendoza’s objection that he had not used “the weapon

in a way that intimidated.”3

We review the district court’s interpretation or application of the

Guidelines de novo and its factual findings for clear error. The district court’s 4

determination that Mendoza brandished a firearm during the offense is a factual

finding, so we review it for clear error. In a futile effort to increase our level of 5

scrutiny over the district court, Mendoza urges that the brandishing

enhancement requires a specific intent element. But, assuming without deciding

that Mendoza is correct, our focus merely becomes whether Mendoza had made

the dangerous weapon known to the aliens in order to intimidate them – still a

factual issue. Consequently, if the district court’s findings are plausible in light

of the record as a whole, then there is no clear error.6

Although we are unable to locate binding authority directly addressing

what constitutes “brandished” under Guideline § 2L1.1(b)(5)(B), we determine 7

– given the totality of the circumstances surrounding this offense and the plain

language of the Guideline – that the district court did not clearly err in imposing

the enhancement. Indeed, the information in the PSR showed that Mendoza –

while wearing a black mask and displaying a firearm – participated in a

roadway kidnaping. He subsequently imprisoned the kidnaped aliens. It was
No. 08-20521

See United States v. Garcia-Mendez, 420 F.3d 454, 455-56 (5th Cir. 2005). 8

See Cisneros-Gutierrez, 517 F.3d at 764. 9

4

reasonable for the district court to infer that Mendoza had – in these volatile

situations – made his weapon known to the smuggled aliens in order to

intimidate them.

Mendoza also half-heartedly argues that the statements of the smuggled

aliens found in the PSR are unreliable as a matter of law, because the smuggled

aliens were potential criminal defendants (based on their illegal entry into the

United States). We review this question deferentially – for either plain or clear

error. First, Mendoza failed to raise this argument in the district court –

triggering plain error. Second, the alleged unreliability of the smuggled aliens’ 8

statements has to do with credibility – a factual question triggering clear error.9

Mendoza fails – under either standard of review – to meet the heavy burden of

showing that the district court erred in relying upon the statements of the

smuggled aliens.

AFFIRMED.