United States v. Angeles-Mendoza

United States Court of Appeals

Fifth Circuit

F I L E D

In the April 26, 2005

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

_______________

m 04-50118

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DANIEL ANGELES-MENDOZA,

Defendant-Appellant.

***************

_______________

m 04-50119

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FELIPE CERON-ESPINOZA,

Defendant-Appellant.

***************

_______________

m 04-50142

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERIK ANGELES-MENDOZA,

Defendant-Appellant.

_________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________

Before HIGGINBOTHAM, SMITH, and 511 (5th Cir. 2005), petition for cert. filed

BENAVIDES, Circuit Judges. (Mar. 31, 2005) (No. 04-9517), and their

progeny.

JERRY E. SMITH, Circuit Judge:

I.

In these consolidated appeals, defendants Erik Angeles-Mendoza, Felipe Ceron-

challenge adjustments made to their sentencing Espinoza, and Daniel Angeles-Mendoza

ranges under the United States Sentencing pleaded guilty to two counts of conspiracy to

Guidelines.1 Although the district court cor- smuggle, transport, and harbor illegal aliens, 8

rectly decided most of the issues on appeal, it U.S.C. § 1324(a)(1)(A), and a charge of

did err in applying the vulnerable victim adjust- possession of a firearm by an illegal alien, 18

ment, U.S.S.G. § 3A1.1(b)(1). For this rea- U.S.C. § 922(g)(5). According to the factual

son, we vacate and remand for resentencing in basis for the guilty pleas, police discovered

light of United States v. Booker, 125 S. Ct. twenty-nine illegal aliens, including defendants,

738 (2005), United States v. Mares, 402 F.3d at an Austin stash house. The smuggling

operation picked up illegal aliens in Mexico in

1

pickup trucks that had been modified by re-

All references to the guidelines are to the 2002 moving the passenger seats to allow them to fit

version, which were in effect when the criminal

more aliens inside.

conduct took place.

2

Once at the stash house, the smuggled II.

aliens were held until defendants received fees Defendants bring a variety of challenges to

for the transport. To deter escape, defendants the method used to calculate their sentencing

took the aliens’ shoes and socks, and guarded ranges under the guidelines. Although the

them in the boarded-up and locked stash house Court in Booker excised and struck down the

with a shotgun. All three defendants were statutory provisions that made the guidelines

identified by smuggled aliens to be the “enforc- mandatory,2 a district court is still required to

ers” at the house who patrolled with the shot- calculate the guideline range and consider it

gun and made calls to the aliens’ relatives to advisory.3 Under Booker, we still review the

collect fees. district court’s interpretation and application

of the guidelines de novo. United States v.

At sentencing, the district court applied Villegas, 2005 U.S. App. LEXIS 4517, at *8

upward adjustments based on findings that the (5th Cir. Mar. 17, 2005) (per curiam). We

smuggling operation involved over one hun- thus proceed to review each of the challenges

dred aliens, that a weapon was brandished to the district court’s application of the guide-

during the offense, that the aliens were physi- lines.

cally restrained during the offense, that the

defendants took advantage of the aliens’ III.

vulnerabilities, and that the aliens were reckl- Defendants challenge the two-level en-

essly endangered by the methods by which hancement to their offense level pursuant to

they were smuggled. The court applied a

downward adjustment for acceptance of re- 2

sponsibility only to Daniel Angeles-Mendoza, Booker, 125 S. Ct. at 764 (opinion of Breyer,

J.) (“[W]e must sever and excise two specific stat-

because it doubted the sincerity of the others

utory provisions: the provision that requires sente-

in their guilty pleas. The court also denied

ncing courts to impose a sentence within the appli-

Ceron-Espinoza’s request for a downward ad- cable Guidelines range (in the absence of circum-

justment based on his claim that he played only stances that justify a departure), see 18 U.S.C.

a minimal role in the offense, finding that he §3553(b)(1) (Supp. 2004), and the provision that

was an average participant in the conspiracy. sets forth standards of review on appeal, including

The court ultimately sentenced Erik Angeles- de novo review of departures from the applicable

Mendoza to concurrent 108-month terms of Guidelines range, see § 3742(e) (main ed. and

imprisonment and to concurrent three-year Supp. 2004).”).

periods of supervised release, and Daniel

3

Angeles-Mendoza to concurrent 78-month Id. at 756-57; Mares, 402 F.3d at 518-19

terms of imprisonment and to concurrent (“Even in the discretionary sentencing system es-

three-year periods of supervised release. tablished by [Booker], a sentencing court must still

carefully consider the detailed statutory scheme

created by the [Sentencing Reform Act] and the

Guidelines which are designed to guide the judge

toward a fair sentence while avoiding sentence

disparity . . . . This duty to ‘consider’ the Guide-

lines will ordinarily require the sentencing judge to

determine the applicable Guidelines range even

though the judge is not required to sentence within

that range.”).

3

U.S.S.G. § 3A1.1(b)(1), which applies where different federal criminal statuteSSthe Hostage

an offender “knew or should have known that Taking ActSSeven where the seizure or deten-

a victim of the offense was a vulnerable vic- tion was not against the hostage’s will at its

tim.” For the upward enhancement to apply, inception. See United States v. Carrion-Caliz,

the victim must be “unusually vulnerable due 944 F.2d 220, 226 (5th Cir. 1991). Because

to age, physical or mental condition, or . . . the smuggled aliens were detained against their

otherwise particularly susceptible to the crimi- will after being transported, they are “victims”

nal conduct.” U.S.S.G. § 3A1.1, cmt. 2 n.1. with regard to conduct relevant to the offenses

We review the district court’s interpretations for which defendants pleaded guilty, and thus

of the guidelines de novo and its factual finding a § 3A1.1 adjustment would be appropriate if

of unusual vulnerability for clear error.4 they have a qualifying vulnerability about

which defendants knew or should have known.

The court did not err in finding that the

smuggled aliens were “victims” for purposes On the other hand, the district court did

of § 3A1.1(b)(1). Defendants cite United commit clear error in finding that an enhance-

States v. Velasquez-Mercado, 872 F.2d 632, ment was appropriate, because it failed to find

636 (5th Cir. 1989), in which we noted that that the victims were unusually vulnerable to

for purposes of similar federal criminal charges the offense as required under § 3A1.1(b)(1),

for smuggling and concealing aliens, the trans- cmt. n.2. In granting the enhancement, the

ported persons might appropriately be consid- court made scant, generalized findings; it

ered “customers” of the defendants rather than merely stated for the record that aliens coming

“victims” of the offense, because they volun- from Mexico and other countries from the

tarily joined the scheme as willing participants south seek to come under “. . . economic and

as to its objectiveSSto be brought illegally into physical stress, seeking work, seeking food,

the United States. The Velasquez-Mercado seeking to support their families, and for

panel, however, used the 1988 version of the someone or more people to take advantage of

guidelines, which did not include the commen- that mind-set, holding them, in effect, hostage.

tary, added in 1997, that clarified the meaning . . .” This misses the mark for a qualifying

of “victim” in applying the enhancement: “For vulnerability under § 3A1.1, which we have

purposes of subsection (b), “victim” includes previously required to be an “unusual vulnera-

any person who is a victim of the offense of bility which is present in only some victims of

conviction and any conduct for which the that type of crime.”5

defendant is accountable under § 1B1.3.”

U.S.S.G. § 3A1.1, cmt. n.2 (1997) (emphasis The guidelines represent Congress’s deter-

added). mination, through the Sentencing Commission,

of how much punishment a particular crime

This court has determined that a person can

be held captive, and thus victimized, under a

5

United States v. Moree, 897 F.2d 1329, 1335

(5th Cir. 1990) (emphasis added); see United

4

United States v. Brugman, 364 F.3d 613, 621 States v. Wetchie, 207 F.3d 632, 634 (9th Cir.

(5th Cir.) (citing United States v. Lambright, 320 2000) (defining an unusually vulnerable victim as

F.3d 517, 518 (5th Cir. 2003)), cert. denied, 125 one who is “less able to resist than the typical vic-

S. Ct. 212 (2004). tim of the offense of the conviction”).

4

deserves, taking into account the inherent they were physically restrained until payment

nature of the type of offense. The district for their transport was received. As we have

court only noted general characteristics com- noted, however, the holding of aliens pending

monly held by aliens seeking to be illegally payment is not an unusual practice where they

smuggled and failed to mention a characteristic have not paid in advance for their transport.8

the defendant knowingly took advantage of, Although the physical restraint of the smug-

such that the offense demonstrated the “extra gled aliens during the commission of the of-

measure of criminal depravity which § 3A1.1 fense may have been appropriately used to

intends to more severely punish.”6 Although grant an upward enhancement under U.S.S.G.

the court may have been correct in noting the § 3A1.3SSthe guidelines provision dealing

inherent vulnerability of smuggled aliens, we specifically with physical restraint of vic-

assume that such a characteristic was ade- timsSSthere is no evidence that the aliens in

quately taken into account in establishing the this case were more unusually vulnerable to

base offense level in U.S.S.G. § 2L1.1.7 being held captive than would be any other

smuggled alien involved in a violation of

The government argues that the level of § 1324.9

vulnerability “exceeded the type of vulnerabil-

ity that might ordinarily accompany smuggling IV.

and harboring aliens” based on the fact that Defendants object to the assessment of a

nine-level enhancement, pursuant to U.S.S.G.

6

§ 2L1.1(b)(2)(C), based on a finding that the

Moree, 897 F.2d at 1335; United States v. number of smuggled aliens exceeded one

Robinson, 119 F.3d 1205, 1219 (5th Cir. 1997) hundred. This increase was recommended in

(“Application of the vulnerable victim guideline is

Erik Angeles-Mendoza’s Presentence Report

limited to cases in which the victims ‘are in need of

(“PSR”), but not in Daniel Angeles-Mendoza’s

greater societal protection’ and the offenses are

thus ‘more criminally depraved than they would be or Carron-Espinoza’s, both of whose PSR’s

otherwise.”) (quoting United States v. Castellanos, recommended only a six-level increase pursu-

81 F.3d 108, 110 (9th Cir. 1996)). ant to U.S.S.G. § 2L1.1(b)(2)(B)SSbased

solely on the twenty-six aliens discovered to be

7

This is not to say that the inherent vulnerabil- detained at the stash house.

ity of smuggled aliens may never be used as a

qualifying vulnerability for purposes of a § 3A1.1

upward adjustment; other crimes that do not nec-

essarily involve smuggled aliens might involve

more depravity and thus might render the defendant 8

See United States v. Patino-Cardenas, 85

eligible for the adjustment where the crime is F.3d 1133, 1134-35 (5th Cir. 1996); United States

directed toward aliens to take advantage of their in- v. Briones-Garza, 680 F.2d 417, 419 (5th Cir.

herent vulnerabilities. Cf. United States v. 1982).

Amedeo, 370 F.3d 1305, 1317 n.10 (11th Cir.

9

2004) (applying § 3A1.1 enhancement where de- The district court also may have made its de-

fendant raped victim after giving her drugs, where cision to grant the upward enhancement based on

defendant knew that the victim was a drug addict the fact that some of the aliens were minors. There

from his former legal representation of her; noting is no evidence, however, that the youth of some of

that not every drug addict is a vulnerable victim them made them especially vulnerable to being

under § 3A1.1). victimized.

5

A. caused no no prejudice11 to these defendants’

Although Daniel Angeles-Mendoza and ability to prepare adequately for sentencing:

Carron-Espinoza conceded that they received Defendants both had actual knowledge of the

oral notice of the government’s intent to government’s position before the hearing and

object to the PSR’s recommendation that they presented a defense to the use of the ledger to

receive only a six-level enhancement, they support a nine-level enhancement under §

objected to the fact that they did not receive 2L1.1(b)(2)(C).12 Moreover, our precedents

timely written notice under rule 32 of the even would have allowed the court sua sponte

Federal Rules of Criminal Procedure. Accord- to impose upward enhancements where the

ing to rule 32(f)(1), “Within 14 days after defendant had no explicit knowledge of the

receiving the presentence report, the parties possibility of such an enhancement but was

must state in writing any objections, including aware of its underlying facts.13

objections to material information, sentencing

guideline ranges, and policy statements con-

tained in or omitted from the report.” (Em- 11

Although “good cause” is not specifically de-

phasis added.) fined by rule 32 and would seem to suggest that the

inquiry only concerns the grounds for the default-

Rule 32(i)(1)(D), however, gives the dis- ing party’s omission, “in practice ‘good cause’

trict court broad discretion over this matter in inquiries typically range more broadly, addressing

that it “may, for good cause, allow a party to (for instance) adverse effectsSSdirect or system-

make a new objection at any time before icSSon opposing parties or the judiciary.” United

sentence is imposed.” FED. R. CIV. P. States v. McCoy, 313 F.3d 561 (D.C. Cir. 2002)

32(i)(1)(D); see also United States v. Wheeler, (considering prejudice in determining whether good

322 F.3d 823, 827 (5th Cir. 2003). Although cause existed to allow a new objection to be pre-

sented at sentencing pursuant to rule 32(i)(1)(D));

the government may have violated rule 32(f)(-

cf. Southwestern Bell Tel. Co. v. City of El Paso,

1) by failing to give timely notice in writing,

346 F.3d 541, 546 (5th Cir. 2003) (stating the test

the court did not abuse its discretion in allow- for considering whether “good cause” has been

ing the government to make its objection at shown in allowing an untimely amendment to

the sentencing hearing, based on the fact that pleading includes consideration of “potential preju-

the government had demonstrated some mea- dice in allowing the amendment”); cf. Effjohn Int’l

sure of “good cause,”10 and the omission Cruise Holdings, Inc., v. A&L Sales, Inc., 346

F.3d 552, 563 (5th Cir. 2003) (considering pre-

judice in determining whether “good cause” exists

for court to set aside entry of default).

10 12

The government presented evidence that con- “The touchstone of rule 32 is reasonable no-

fusion was created over the fact that a different tice” to allow counsel adequately to prepare a

probation officer was assigned to Daniel Angeles- meaningful response and engage in adversary test-

Mendoza and Carron-Espinoza than was assigned ing at sentencing. United States v. Andrews, 390

to Erik Angeles-Mendoza. According to the gov- F.3d 840, 845 (5th Cir. 2004).

ernment, the probation officer assigned to Daniel

13

Angeles-Mendoza and Carron-Espinoza did not United States v. Marmolejo, 89 F.3d 1185,

have an opportunity to review the ledger before 1201 (5th Cir. 1996) (stating that “if the defendant

drafting their PSR, which is the source of the dis- has actual knowledge of the facts on which the

crepancy. (continued...)

6

B. Hernandez that the ledger discovered at the

Defendants argue that the district court stash house had approximately 114 unique

erred in applying the § 2L1.1(b)(2)(C) adjust- names, some of which were names of illegal

ment, because there was insufficient evidence aliens discovered at the residence.14 Although

to demonstrate that more than one hundred defendants correctly point out that fewer than

aliens were involved in the smuggling opera- one hundred of the names included phone

tion. “For sentencing purposes, the district numbers and contact information, the court did

court [could] consider any relevant evidence not commit clear error by crediting Hernan-

‘without regard to its admissibility under the dez’s testimony that the discrepancy was a

rules of evidence applicable at trial, provided result of different authors contributing to

that the information [had] sufficient indicia of different parts of the ledger with varying

reliability to support its probable accuracy.’” recording methods, particularly in light of

United States v. Young, 981 F.2d 180, 185 other evidence demonstrating the expansive

(5th Cir. 1992) (quoting U.S.S.G. § 6A1.3). nature of the smuggling operation.15 Defen-

dants offer an abundance of other theories and

Again, we review the district court’s appli- explanations for the names in the ledger, which

cation of the guidelines de novo and its factual may in fact be correct, but they do not make

findings for clear error. United States v. Ho, the finding, rejecting those theories, clearly

311 F.3d 589, 608 (5th Cir. 2002). “If the dis- erroneous in light of the record as a whole.

trict court’s account of the evidence is plausi-

ble in light of the record when viewed in its en- V.

tirety, the court of appeals may not reverse it

even though convinced that had it been sitting

as the trier of fact, it would have weighed the 14

Ledgers seized at crime scenes can be used as

evidence differently.” United States v. Alfaro,

competent evidence at sentencing hearings. See,

919 F.2d 962, 966 (5th Cir. 1990). e.g., United States v. Garza, 118 F.3d 278, 286

(5th Cir. 1997); United States v. Fierro, 38 F.3d

There is no clear error in the finding that 761, 774 (5th Cir. 1994); United States v. Thomas,

more than one hundred aliens were involved in 12 F.3d 1350, 1369 (5th Cir. 1994).

the smuggling operation. The government

15

presented evidence in the form of Agent There was evidence of another stash house in

Houston, connected to the defendants by eight to

nine other ledgers discovered there referencing one

13

(...continued) of the defendants by name, identification docu-

district court bases an enhancement or a denial of ments of Daniel and Erik Angeles-Mendoza, in-

a reduction, the Sentencing Guidelines themselves cluding a driver’s licence, and shotgun shells

provide notice of the grounds relevant to the pro- matched ballistically to the shotgun recovered at

ceeding sufficient to satisfy the requirements of the stash house. Furthermore, Hernandez testified

Rule 32”) (internal citations omitted), aff’d sub that one of the smuggled aliens in this case heard

nom. United States v. Salinas, 522 U.S. 52 (1997); Daniel Angeles-Mendoza refer to another stash

United States v. Knight, 76 F.3d 86, 88 (5th Cir. house they operated. The PSR includes other evi-

1996) (holding that sufficient notice exists for dence of the extensiveness of the operation, in-

upward enhancements for factors presently in the cluding reference to an admission by another in-

guidelines to allow average defense counsel ade- dividual that he had transported six loads of aliens,

quately to prepare for sentencing). including four of them to the Austin stash house.

7

Daniel Angeles-Mendoza and Ceron-

Espinoza object to the district court’s applica-

tion of a two-level adjustment made on the 17

(...continued)

basis that the “offense involved intentionally or Martinez, 273 F.3d 903, 916 (9th Cir. 2001)

recklessly creating a substantial risk of death (“[P]utting twenty people in a dilapidated van with-

or serious bodily injury to another person . . . out seats or seat belts undoubtedly constitutes

.” U.S.S.G. § 2L1.1(b)(5). Reckless conduct ‘carrying substantially more passengers than the

to which the adjustment applies includes “a rated capacity of a motor vehicle’ . . ., or harboring

wide variety of conduct (e.g. transporting persons in a crowded, dangerous or inhumane

condition.”; affirming enhancement under § 2L1.1-

persons in the trunk or engine compartment of

(b)(5)); United States v. Angwin, 271 F.3d 786,

a motor vehicle, carrying substantially more

808-09 (9th Cir. 2001) (holding that district court

passengers than the rated capacity of a motor did not abuse its discretion in applying § 2L1.1-

vehicle or vessel, or harboring persons in a (b)(5) where there were sixteen people in motor

crowded, dangerous, or inhumane condition).” home rated for six people, aliens were crowded into

U.S.S.G. § 2L1.1, cmt. n.6. small compartments, and none of them were seated

or wearing a seat belt); United States v. Ortiz, 242

In light of the record as a whole, the court F.3d 1078, 1078-79 (8th Cir. 2001) (stating that

did not commit clear error in its findings that district court did not clearly err in applying

defendants smuggled aliens in the back of their § 2L1.1(b)(5) where defendant transported 23

truck and modified the vehicle to allow more illegal aliens in van designed to accommodate 14

smuggled aliens to fit in by removing the back people, there were not enough seat belts, and the

seats.16 The court did not err in applying a § van overturned, injuring the passengers); United

2L1.1(b)(5) adjustment, because United States States v. Rio-Baena, 247 F.3d 722, 723 (8th Cir.

2001) (finding no clear error in applying

v. Cuyler, 298 F.3d 387 (5th Cir. 2002),

§ 2L1.1(b)(5) where defendant crowded 21 illegal

dictates that the adjustment is appropriate

aliens into back of cargo van without seats or seat

where the smuggled aliens are transported in belts)).

the bed of a pickup truck.17

The defendants claim that Cuyler is inapplica-

ble because it requires a finding that the truck was

16 being operated at highway speeds, but that argu-

According to several witnesses, aliens were

placed in the bed of the truck and covered with a ment is unconvincing. Over the long distances that

tarp or a “heavy rubber cover,” and the cab of the the aliens were transported in this operation, there

truck was overcrowded, at times carrying as many existed the similar, substantial risk that the aliens

as ten people. Additionally, the PSR indicated that might “be thrown from the bed of the pickup in the

the organization removed the passenger seats to event of an accident or other driving maneuver of

make the vehicles “compatible for the transporta- the sort.” Cuyler, 298 F.3d at 391. Defendants’

tion of more people,” and the vehicle found at the argument that a higher level of dangerousness

Austin stash house was so modified. needs to be demonstrated to apply the enhance-

mentSSthat there needed to be evidence that the

17

Cuyler did not deal with the issue of modify- individuals would suffer from oxygen deprivation

ing vehicles to allow extra passengers to fit, but it or have trouble extricating themselves from the

approvingly cited cases from other circuits that vehicle based on United States v. Dixon, 201 F.3d

were more on point for that aspect of this case. 1223 (9th Cir. 2000)SSwas explicitly rejected in

See id. at 390-91 (citing United States v. Ramirez- Cuyler. See Cuyler, 298 F.3d at 389-90 (rejecting

(continued...) (continued...)

8

VI.

Daniel Angeles-Mendoza argues that the Daniel Angeles-Mendoza and Ceron-

adjustment should not apply to him, because Espinoza object to the application of a two-

his only connection to the modified truck was level adjustment pursuant to U.S.S.G. § 3A1.-

that it was parked outside the house where he 3, which authorizes such an enhancement “[i]f

was arrested. In granting sentencing adjust- a victim was physically restrained in the course

ments, however, the district court is not lim- of the offense.” According to the application

ited to considering acts of a particular defen- notes, the definition of “physical restraint” for

dant, but may also consider “all reasonably purposes of the adjustment is found in § 1B1.1

foreseeable acts and omissions of others in and reads: “‘Physically restrained’ means the

furtherance of the jointly taken criminal activ- forcible restraint of the victim such as by being

ity,” irrespective of whether it was actually tied, bound, or locked up.” U.S.S.G. §§

charged as a conspiracy. U.S.S.G. § 1B1.3(a)- 1B1.1, 3A1.3, cmt. n.1(h).

(1)(B).18 Although it was Erik Angeles-Men-

doza who was identified as the driver of the The record contains ample evidence that

truck, it was not clearly erroneous for the the smuggled aliens were physically restrained;

district court to find that the potentially dan- the factual basis of the guilty pleas established

gerous method in which the aliens were trans- that the door was locked with a deadbolt, the

ported was reasonably foreseeable to Daniel windows were boarded up, and a guard pa-

Angeles-Mendoza, given evidence of his trolled the premises with a shotgun. Further,

proximity to the altered vehicle,19 the fact that the PSR indicates that the aliens had to surren-

his brother was responsible for driving the der their socks and shoes to make escape more

aliens, and evidence of his leadership role difficult, and they were threatened with being

within and extensive knowledge of the organi- shot in the legs if they attempted to escape.

zation.20

Despite the aforementioned findings, defen-

dants argue that the adjustment is inappropri-

17

(...continued)

ate here because the victims supposedly “con-

application of same case, noting that the factors sented” to the restraint; there is evidence that

highlighted in Dixon “do not limit the guideline”). the aliens were awareSSfrom before the time

when they agreed to be smuggledSSthat they

18

See also United States v. Morris, 46 F.3d would not be permitted to leave the stash

410, 422 (5th Cir. 1995). house until payment was received. The fact

that they needed to be kept in check by physi-

19

The modified truck was found outside the cal barriers and threats of force belies, how-

stash house where Daniel Angeles-Mendoza was ever, any contention that they continued to

arrested, and evidence indicated he handled the consent to be kept at the stash house. Their

aliens when they were dropped off there.

freedom to move where they wished was

20

Daniel Angeles-Mendoza worked as the “en- forcibly curtailed, and they were thus “physi-

forcer” at the Austin stash house. Additionally, cally restrained” under the plain meaning of

there were indications that he knew the expansive-

ness of the organization; he admitted knowledge of

20

another stash house, and his identification was (...continued)

(continued...) found at a similar Houston site.

9

the guidelines.21 entitled to the adjustment as a matter of right;

in connection with a plea, the court is in-

Defendants also argue that the application structed to consider whether defendant truth-

of the enhancement is inappropriate double fully admitted the conduct comprising the

counting because the offense level was also offense, including additional relevant conduct

increased for brandishing a firearm. This for which he is responsible.23 We review the

argument is without merit, because double sentencing court’s determination of acceptance

counting “is impermissible only where the of responsibility with even more deference that

guidelines at issue prohibit it,” and § 3A1.3 is due under a clearly erroneous standard

does not prohibit double counting.22 The because the sentencing judge is in a unique

district court did not commit error, and cer- position to assess the defendant’s acceptance

tainly not clear error, in finding that the aliens of responsibility and true remorse.24

were physically restrained because of how they

were confined at the stash house, making the The court was within its discretion in

upward adjustment proper under § 3A1.3. adopting the probation officer’s finding that

Ceron-Espinoza did not adequately accept re-

VII. sponsibility because of contradictory state-

Ceron-Espinoza argues that the district ments that he made before the court at various

court erred in refusing to grant him a down- stages, leading up to his plea of guilty. The

ward adjustment for acceptance of responsibil- record indicates that at one point he asserted

ity under U.S.S.G. § 3E1.1, which states that that he was merely a smuggled alien himself

“[i]f the defendant clearly demonstrates accep- who was forced to work in the kitchen to pay

tance of responsibility for his offense,” his his transport fee, yet evidence demonstrated

offense level is decreased by two levels. A that he was actively involved in confining the

defendant who enters a guilty plea is not smuggled aliens by threatening to shoot them

or break t heir legs if they tried to escape.

Additionally, he initially denied that he had

21

In other contexts, we have found that the ever possessed the recovered shotgun, but

initial acquiescence of a victim does nor foreclose later he admitted to it.

a finding that he is a hostage where force is later

used to seize or confine him. Cf. Carrion-Caliz, Although Ceron-Espinoza pleaded guilty,

944 F.2d at 225-26 (applying the Hostage Taking the district court was within its bounds of

Act). discretion to conclude that he was trying to

22

misrepresent facts to minimize his role in the

United States v. Gaytan, 74 F.3d 545, 560

(5th Cir. 1996); U.S.S.G. § 3A1.3. The applica-

tion notes to § 3A1.3 only dictate that the adjust-

ment is inapplicable “where the offense guideline 23

See U.S.S.G. § 3E1.1, cmt. n.3; see also

specifically incorporates this factor, or where the United States v. Pierce, 237 F.3d 693, 694 (5th

unlawful restraint of a victim is an element of the Cir. 2001).

offense itself.” U.S.S.G. § 3A1.3, cmt. n.2. The

24

specific offense guideline applicable in this case, See U.S.S.G., § 3E1.1, cmt. n.5.; see also

§ 2L1.1, does not specifically incorporate the ele- United States v. Nguyen, 190 F.3d 656, 659 (5th

ment of physical restraint, so that limitation is in- Cir. 1999); United States v. Rodriguez, 942 F.2d

applicable. 899, 902-03 (5th Cir. 1991).

10

offense. Under these circumstances, particu- ward adjustment under § 3B1.2. Although

larly under our extremely deferential standard Ceron-Espinoza correctly points to the testi-

of review, the court committed no reversible mony of several witnesses who indicated that

error in deciding that Ceron-Espinoza had they only knew him to cook and clean around

insufficiently accepted responsibility to deserve the stash house, there was competent evidence

a downward adjustment under § 3E1.1. on the record that he was the enforcer at the

site; that he was one of three individuals in

VIII. charge of the stash house, at times wielding

Ceron-Espinoza argues that the district the shotgun and issuing threats to the detained

court erred in denying him a reduction in his aliens.

offense level based on having a mitigating role

in the offense, pursuant to U.S.S.G. § 3B1.2, Other evidence showed that Ceron-Espino-

which pro vides for a four-level reduction if za had knowledge of the scope and structure

the defendant is a “minimal participant,” and a of the enterprise, in that he knew of how the

two-level reduction if he is a “minor partici- aliens were smuggled and detained until pay-

pant.” A “minimal participant” is one who is ment was received for their transport. Even if

“plainly among the least culpable of those Ceron-Espinoza played a relatively smaller role

involved in the conduct of a group,” and who in the offense as compared to his other co-

demonstrates a lack of knowledge or under- defendants, viewing the records as a whole the

standing of the scope and structure of the en- district court did not commit clear error in

terprise. § 3B1.2, cmt. n.4. A “minor partici- finding that he played a significant role, such

pant” is one who is “less culpable than most that he was an average participant and not

other participants, but one whose role could deserving of a downward adjustment based on

not be described as minimal.” § 3B1.2, cmt. § 3B1.2.

n.5.

IX.

A defendant has the burden of showing that The defendants argue that under Booker,

he is entitled to the adjustment, and to qualify their sentences violate their Sixth Amendment

he must demonstrate that he is “substantially right to findings by a jury, because the district

less culpable than the average participant.”25 court assessed sentencing enhancements under

The determination of the applicability of this the then-mandatory sentencing guidelines,

downward adjustment is a question of fact that based on facts that were neither admitted by

we review for clear error. See United States v. them nor found by a jury beyond a reasonable

Virgen-Moreno, 265 F.3d 276, 296 (5th Cir. doubt As we have explained, the district court

2001). did not properly calculate the vulnerable victim

adjustment, § 3A1.1(b)(1). Even though

The district court was not clearly erroneous Booker renders the guidelines advisory, a

in finding that Ceron-Espinoza was an average sentencing court must first arrive at the proper

participant and thus not deserving of a down- guideline calculation before deciding which

sentence to impose.26

25

United States v. Garcia, 242 F.3d 593, 598

26

(5th Cir. 2001) (quoting U.S.S.G. § 3B1.2, cmt. See supra note 3. The sentences here are

n.3(A)). (continued...)

11

Moreover, as we noted in Villegas, 2005

U.S. App. LEXIS 4517, at *15, Booker did

not invalidate 18 U.S.C. § 3742(f)(1), which

still provides:

If the court of appeals determines that . . .

the sentence was imposed in violation of

law or imposed as a result of an incorrect

application of the sentencing guidelines, the

court shall remand the case for further

sentencing proceedings with such instruc-

tions as the court considers appropriate.

Because the sentences in the instant case were

applied when the guidelines were deemed

mandatory, there is no doubt that the

sentences were imposed as a result of an

incorrect application of § 3A1.1. We must

therefore remand for resentencing.27

The judgments of sentence are VACATED,

and these matters are REMANDED for further

proceedings in accordance with this opinion

and with Booker, Mares, and their progeny.

26

(...continued)

what, according to Mares, are now termed []

“‘non-Guideline’ sentence[s] to distinguish [them]

from [] Guidelines sentence[s] which include[]

[sentences that have] been adjusted by applying a

‘departure’ as allowed by the Guidelines.” Mares,

402 F.3d at 519 n.7.

27

Daniel Angeles-Mendoza also argues that

Booker requires that his sentence be vacated and

remanded, although he concedes that we would re-

view this for plain error, since he failed to object

on Sixth Amendment grounds. We do not consider

this issue, because we have already determined that

his sentence needs to be vacated based on the fact

that the district court improperly assessed the

defendant a vulnerable victim adjustment under

§ 3A1.1.

12