U.S. v. Angeles-Mendoza

• Citation: 407 F.3d 742
• Decision Date: 26 April 2005
• Docket Number: No. 04-50142.,No. 04-50118.,No. 04-50119.,04-50118.,04-50119.,04-50142.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel ANGELES-MENDOZA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Felipe Ceron-Espinoza, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Erik Angeles-Mendoza, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

407 F.3d 742

UNITED STATES of America, Plaintiff-Appellee, v. Daniel ANGELES-MENDOZA, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Felipe Ceron-Espinoza, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Erik Angeles-Mendoza, Defendant-Appellant.

No. 04-50118.

No. 04-50119.

No. 04-50142.

United States Court of Appeals, Fifth Circuit.

April 26, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., Richard L. Durbin, Jr., Asst. U.S. Attys., San Antonio, TX, for U.S.

Hans Viktor Olavson, Orr & Olavson, Austin, TX, for Daniel Angeles-Mendoza.

Gloria Magdalena Salinas, Austin, TX, for Ceron-Espinoza.

Oskar I. Nisimblat, Owen, Bogart & Rogers, Elgin, TX, for Erik Angeles-Mendoza.

Appeals from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In these consolidated appeals, defendants challenge adjustments made to their sentencing ranges under the United States Sentencing Guidelines.¹ Although the district court correctly decided most of the issues on appeal, it did err in applying the vulnerable victim adjustment, U.S.S.G. § 3A1.1(b)(1). For this reason, we vacate and remand for resentencing in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), United States v. Mares, 402 F.3d 511 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517), and their progeny.

I.

Erik Angeles-Mendoza, Felipe Ceron-Espinoza, and Daniel Angeles-Mendoza pleaded guilty to two counts of conspiracy to smuggle, transport, and harbor illegal aliens, 8 U.S.C. § 1324(a)(1)(A), and a charge of possession of a firearm by an illegal alien, 18 U.S.C. § 922(g)(5). According to the factual basis for the guilty pleas, police discovered twenty-nine illegal aliens, including defendants, at an Austin stash house. The smuggling operation picked up illegal aliens in Mexico in pickup trucks that had been modified by removing the passenger seats to allow them to fit more aliens inside.

Once at the stash house, the smuggled aliens were held until defendants received fees for the transport. To deter escape, defendants took the aliens' shoes and socks, and guarded them in the boarded-up and locked stash house with a shotgun. All three defendants were identified by smuggled aliens to be the "enforcers" at the house who patrolled with the shotgun and made calls to the aliens' relatives to collect fees.

At sentencing, the district court applied upward adjustments based on findings that the smuggling operation involved over one hundred aliens, that a weapon was brandished during the offense, that the aliens were physically restrained during the offense, that the defendants took advantage of the aliens' vulnerabilities, and that the aliens were recklessly endangered by the methods by which they were smuggled. The court applied a downward adjustment for acceptance of responsibility only to Daniel Angeles-Mendoza, because it doubted the sincerity of the others in their guilty pleas. The court also denied Ceron-Espinoza's request for a downward adjustment based on his claim that he played only a minimal role in the offense, finding that he was an average participant in the conspiracy. The court ultimately sentenced Erik Angeles-Mendoza to concurrent 108-month terms of imprisonment and to concurrent three-year periods of supervised release, and Daniel Angeles-Mendoza to concurrent 78-month terms of imprisonment and to concurrent three-year periods of supervised release.

II.

Defendants bring a variety of challenges to the method used to calculate their sentencing ranges under the guidelines. Although the Court in Booker excised and struck down the statutory provisions that made the guidelines mandatory,² a district court is still required to calculate the guideline range and consider it advisory.³ Under Booker, we still review the district court's interpretation and application of the guidelines de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005) (per curiam). We thus proceed to review each of the challenges to the district court's application of the guidelines.

III.

Defendants challenge the two-level enhancement to their offense level pursuant to U.S.S.G. § 3A1.1(b)(1), which applies where an offender "knew or should have known that a victim of the offense was a vulnerable victim." For the upward enhancement to apply, the victim must be "unusually vulnerable due to age, physical or mental condition, or ... otherwise particularly susceptible to the criminal conduct." U.S.S.G. § 3A1.1, cmt. 2 n.1. We review the district court's interpretations of the guidelines de novo and its factual finding of unusual vulnerability for clear error.⁴

The court did not err in finding that the smuggled aliens were "victims" for purposes of § 3A1.1(b)(1). Defendants cite United States v. Velasquez-Mercado, 872 F.2d 632, 636 (5th Cir.1989), in which we noted that for purposes of similar federal criminal charges for smuggling and concealing aliens, the transported persons might appropriately be considered "customers" of the defendants rather than "victims" of the offense, because they voluntarily joined the scheme as willing participants as to its objective — to be brought illegally into the United States. The Velasquez-Mercado panel, however, used the 1988 version of the guidelines, which did not include the commentary, added in 1997, that clarified the meaning of "victim" in applying the enhancement: "For purposes of subsection (b), `victim' includes any person who is a victim of the offense of conviction and any conduct for which the defendant is accountable under § 1B1.3." U.S.S.G. § 3A1.1, cmt. n.2 (1997) (emphasis added).

This court has determined that a person can be held captive, and thus victimized, under a different federal criminal statute — the Hostage Taking Act — even where the seizure or detention was not against the hostage's will at its inception. See United States v. Carrion-Caliz, 944 F.2d 220, 226 (5th Cir.1991). Because the smuggled aliens were detained against their will after being transported, they are "victims" with regard to conduct relevant to the offenses for which defendants pleaded guilty, and thus a § 3A1.1 adjustment would be appropriate if they have a qualifying vulnerability about which defendants knew or should have known.

On the other hand, the district court did commit clear error in finding that an enhancement was appropriate, because it failed to find that the victims were unusually vulnerable to the offense as required under § 3A1.1(b)(1), cmt. n.2. In granting the enhancement, the court made scant, generalized findings; it merely stated for the record that aliens coming from Mexico and other countries from the south seek to come under "... economic and physical stress, seeking work, seeking food, seeking to support their families, and for someone or more people to take advantage of that mind-set, holding them, in effect, hostage ...." This misses the mark for a qualifying vulnerability under § 3A1.1, which we have previously required to be an "unusual vulnerability which is present in only some victims of that type of crime."⁵

The guidelines represent Congress's determination, through the Sentencing Commission, of how much punishment a particular crime deserves, taking into account the inherent nature of the type of offense. The district court only noted general characteristics commonly held by aliens seeking to be illegally smuggled and failed to mention a characteristic the defendant knowingly took advantage of, such that the offense demonstrated the "extra measure of criminal depravity which § 3A1.1 intends to more severely punish."⁶ Although the court may have been correct in noting the inherent vulnerability of smuggled aliens, we assume that such a characteristic was adequately taken into account in establishing the base offense level in U.S.S.G. § 2L1.1.⁷

The government argues that the level of vulnerability "exceeded the type of vulnerability that might ordinarily accompany smuggling and harboring aliens" based on the fact that they were physically restrained until payment for their transport was received. As we have noted, however, the holding of aliens pending payment is not an unusual practice where they have not paid in advance for their transport.⁸ Although the physical restraint of the smuggled aliens during the commission of the offense may have been appropriately used to grant an upward enhancement under U.S.S.G. § 3A1.3 — the guidelines provision dealing specifically with physical restraint of victims — there is no evidence that the aliens in this case were more unusually vulnerable to being held captive than would be any other smuggled alien involved in a violation of § 1324.⁹

IV.

Defendants object to the assessment of a nine-level enhancement, pursuant to U.S.S.G. § 2L1.1(b)(2)(C), based on a finding that the number of smuggled aliens exceeded one hundred. This increase was recommended in Erik Angeles-Mendoza's Presentence Report ("PSR"), but not in Daniel Angeles-Mendoza's or Carron-Espinoza's, both of whose PSR's recommended only a six-level increase pursuant to U.S.S.G. § 2L1.1(b)(2)(B) — based solely on the twenty-six aliens discovered to be detained at the stash house.

A.

Although Daniel Angeles-Mendoza and Carron-Espinoza conceded that they received oral notice of the government's intent to object to the PSR's recommendation that they receive only a six-level enhancement, they objected to the fact that they did not receive timely written notice under rule 32 of the Federal Rules of Criminal Procedure. According to rule 32(f)(1), "Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report." (Emphasis added.)

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