United States v. Luna ( 2023 )

Case: 22-40606 Document: 00516731729 Page: 1 Date Filed: 04/28/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40606
FILED
April 28, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Victor Yazmani Luna,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-1296-4
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Victor Yazmani Luna was resentenced after this court affirmed his
conviction for aiding and abetting kidnapping but vacated another conviction
and both of his original sentences. On remand, the district court sentenced
Luna to a below-guidelines term of 304 months in prison, which represents
an increase from the original sentence for the kidnapping count but a decrease
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40606 Document: 00516731729 Page: 2 Date Filed: 04/28/2023
No. 22-40606
from the original total sentence. Luna now appeals his new sentence on two
grounds. For the following reasons, we affirm.
Luna first contends that the district court lacked authority to increase
the term of imprisonment imposed for the kidnapping. However, he fails to
identify any clear basis for this contention. Luna does not argue that the
district court acted beyond the scope of the mandate on remand. See United
States v. Lee, 358 F.3d 315, 320-21 (5th Cir. 2004). Nor does he show that the
court’s authority to impose a lawful sentence was otherwise constrained.
This argument accordingly fails.
The remaining issue is whether the district court erred by applying an
enhancement under U.S.S.G. § 3B1.5. As Luna acknowledges, our review is
for plain error only. Puckett v. United States, 556 U.S. 129, 135 (2009). To
establish plain error, a defendant must show (1) an error (2) that is clear or
obvious and (3) that affected his substantial rights. Id. Because we conclude
that Luna fails to make the required showing, we do not address the
Government’s argument that he forfeited this issue by failing to raise it in his
initial appeal. See United States v. Stanford, 883 F.3d 500, 504-05 (5th Cir.
2018).
Luna contends that § 3B1.5 is inapplicable because federal kidnapping
is not a “crime of violence.” An application note defines that term for
purposes of § 3B1.5 by reference to 18 U.S.C. § 16. § 3B1.5, comment. (n.1).
Luna does not dispute that federal kidnapping falls within the crime-of-
violence definition at § 16(b), and he fails to show that use of that definition
is plainly erroneous here. See United States v. Godoy, 890 F.3d 531, 540 (5th
Cir. 2018). Thus, he has not carried his burden of showing that any error was
clear or obvious. See Puckett, 556 U.S. at 135.
AFFIRMED.
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