United States Court of Appeals
For the First Circuit
No. 03-2387
UNITED STATES OF AMERICA,
Appellee,
v.
HENRY A. ALVAREZ-CUEVAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Lipez, and Howard,
Circuit Judges.
Robert M. Thomas, Jr., with whom Royston H. Delaney and Thomas
& Associates were on brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Senior
Appellate Attorney, with whom H.S. Garcia, United States Attorney,
and German A. Rieckehoff, Assistant United States Attorney, were on
brief, for appellee.
June 30, 2005
LYNCH, Circuit Judge. Defendant Henry Alvarez-Cuevas
challenges the propriety of the application of the Sentencing
Guidelines in his case and requests a remand for resentencing in
light of the Supreme Court's decision in United States v. Booker,
125 S. Ct. 738 (2005). Although Alvarez-Cuevas did not preserve
his Booker claim and so must meet the plain error standard under
Booker, we have recognized that an error in interpretation or
application of the Guidelines may suffice to warrant a Booker
remand. United States v. Antonakopoulos, 399 F.3d 68, 81 (1st Cir.
2005). When Booker claims are made, the first two prongs of plain
error analysis are satisfied: there was error and it was plain.
Alvarez-Cuevas argues there was just such a Guidelines
error here, as to the proper interpretation of the Sentencing
Guideline, USSG §2A4.1(b)(6), which controls sentences for the
crime of hostage taking.
The crime of hostage taking, at the time defendant's
crime was committed, was punished by a base offense level of 24,
subject to enhancements. That base offense level was required to
be enhanced if one or more of seven factual scenarios occurred.
The Guideline of interest states:
If the victim is a minor and, in exchange for
money or other consideration, was placed in
the care or custody of another person who had
no legal right to such care or custody of the
victim, increase by 3 levels.
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USSG §2A4.1(b)(6). The question presented, of first impression, is
whether the enhancement in §2A4.1(b)(6) applies when a fellow
conspirator in the hostage taking has retained the taken child in
his or her custody and the consideration received is no more than
the conspirator's expected share of the ransom. We conclude that
the Guideline is not applicable to Alvarez-Cuevas, and so defendant
has established a reasonable probability of receiving a lower
sentence on remand, under Antonakopoulos, and thus we remand for
resentencing in light of Booker.
I.
On November 8, 2000, the defendant Alvarez-Cuevas, along
with co-conspirators Manuel E. Murillo and José M. Fermín-López,
entered the home of Pablo Morla-Hernández, armed with firearms.
They forced Morla-Hernández and his six-year-old step-daughter into
a car. They drove to Fermín-López's home in Carolina, Puerto Rico,
and left the child there with Fermín-López and his wife, co-
conspirator Luz Delia Collazo Ayala. Alvarez-Cuevas and others
then took Morla-Hernández to a bar in Santurce, Puerto Rico, and
demanded $500,000 for the safe return of Morla-Hernández's child.
Morla-Hernández escaped from the bar and contacted the police.
Later that evening, Alvarez-Cuevas called Morla-Hernández
and repeated his demand of $500,000 within three days for Morla-
Hernández's step-daughter to be returned. The next day, November
9, 2000, Alvarez-Cuevas and his fellow co-conspirators agreed to
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release the child for a smaller amount of money and some kilograms
of cocaine. From November 9 until November 13, there were several
telephone conversations between the co-conspirators, including
Alvarez-Cuevas, and Morla-Hernández as to the delivery of the
ransom. Some of these calls were made from Fermín-López's
residence. On November 13, 2000, upon learning that federal agents
were investigating the kidnapping, the co-conspirators took the
child from Fermín-López's house, where she had been cared for by
Fermín-López and Collazo, and released her unharmed in Ocean Park,
in San Juan, Puerto Rico; no ransom was exchanged. The defendant,
as well as the three named co-conspirators, were arrested shortly
after.
II.
On November 29, 2000, Alvarez-Cuevas was indicted for
hostage taking, in violation of 18 U.S.C. § 1203(a) (Count I), and
aiding and abetting the unlawful possession of a firearm during the
commission of a violent crime, in violation of 18 U.S.C. § 924(c)
(Count II). On August 7, 2002, Alvarez-Cuevas pled guilty to both
counts. He was sentenced on August 29, 2003.
On Count I, the base offense level was 24, under USSG
§2A4.1(a)(1). Alvarez-Cuevas then received two of enhancements: 1)
a six-level enhancement under USSG §2A4.1(b)(1) because a ransom
demand was made; and 2) a three-level enhancement under USSG
§2A4.1(b)(6) because, as stated in the Presentence Report, "the
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victim was a minor and, in exchange for money or other
consideration, was placed in the care or custody of another person
who had no legal right to such care or custody." He also received
a three-level downward departure under USSG §3E1.1 for acceptance
of responsibility.
Based on the resultant Offense Level of 30, and a
Criminal History Category of I, Alvarez-Cuevas's Guidelines' range
was 97 to 121 months' imprisonment for Count I. The district court
sentenced him to 109 months' imprisonment on Count I, and to the
mandatory minimum of seven years for Count II, see 18 U.S.C.
§ 924(c), to be served consecutively for a total prison term of 16
years and one month. The defendant did not object to any of the
enhancements or the calculation of the Guidelines range at
sentencing.
III.
On appeal, Alvarez-Cuevas makes several arguments. He
first argues that the district court erred in enhancing his
sentence based on USSG §2A4.1(b)(6), because the facts of this case
do not come within the plain language of the Guideline. Second,
and relatedly, he argues in supplemental briefing that as a result
of Booker and this court's decision in United States v.
Antonakopoulos, 399 F.3d 68, 80 (1st Cir. 2005), the district court
committed plain error in sentencing him according to a mandatory
Guidelines system and as a result his sentence should be vacated
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and remanded for resentencing in light of Booker. Third, he argues
that trial counsel's failure to object to the departure at
sentencing constituted ineffective assistance of counsel.
The government charged this case as a hostage taking case
under 18 U.S.C. § 1203, rather than as a kidnapping case under 18
U.S.C. § 1201.1 The key elements of § 1203 are: "[W]hoever . . .
seizes or detains and threatens to kill, to injure, or to continue
to detain another person in order to compel a third person . . . to
do or abstain from doing any act as an explicit or implicit
condition for the release of the person detained . . . shall be
punished . . . ." 18 U.S.C. § 1203. Nonetheless, USSG §2A4.1
applies to hostage taking because that section covers "Kidnapping,
Abduction, [and] Unlawful Restraint." As a result, §2A4.1 covers
sentencing for different crimes with different elements.
A. Sentencing Departure
USSG §2A4.1(b)(6) states:
If the victim is a minor and, in exchange for
money or other consideration, was placed in
the care or custody of another person who had
no legal right to such care or custody of the
victim, increase by 3 levels.2
1
Perhaps the government feared it could not meet the
interstate commerce requirement of 18 U.S.C. § 1201.
2
The version of USSG §2A4.1 in effect at the time of
defendant's sentencing in its entirety reads:
Kidnapping, Abduction, or Unlawful Restraint
(a) Base Offense Level: 24
(b) Specific Offense Characteristics
(1) If a ransom demand or a demand upon the government was
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Alvarez-Cuevas argues that the enhancement was improper for two
reasons: (1) the child was never "placed in the care or custody of
another person who had no legal right to such care or custody,"
made, increase by 6 levels.
(2) (A) If the victim sustained permanent or life-threatening
bodily injury, increase by 4 levels: (B) if the victim
sustained serious bodily injury, increase by 2 levels; or
(C) if the degree of injury is between that specified in
subdivisions (A) and (B), increase by 3 levels.
(3) If a dangerous weapon was used, increase by 2 levels.
(4) (A) If the victim was not released before thirty days had
elapsed, increase by 2 levels.
(B) If the victim was not released before seven days had
elapsed, increase by 1 level.
(C) If the victim was released before twenty-four hours
had elapsed, decrease by 1 level.
(5) If the victim was sexually exploited, increase by 3
levels.
(6) If the victim is a minor and, in exchange for money or
other consideration, was placed in the care or custody of
another person who had no legal right to such care or
custody of the victim, increase by 3 levels.
(7) If the victim was kidnapped, abducted, or unlawfully
restrained during the commission of, or in connection
with, another offense or escape therefrom; or if another
offense was committed during the kidnapping, abduction,
or unlawful restraint, increase to –-
(A) the offense level from the Chapter Two offense
guideline applicable to that other offense if such
offense guideline includes an adjustment for kidnapping,
abduction, or unlawful restraint, or otherwise takes such
conduct into account; or
(B) 4 plus the offense level from the offense guideline
applicable to that other offense, but in no event greater
than level 43, in any other case,
if the resulting offense level is greater than that
determined above.
(c) Cross Reference
(1) If the victim was killed under circumstances that would
constitute murder under 18 U.S.C. § 1111 had such killing
taken place within the territorial or maritime
jurisdiction of the United States, apply §2A4.1 (First
Degree Murder).
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because the enhancement refers to placing the victim in the custody
of a third party, not one of the kidnappers; (2) because those who
kept the child, namely Fermín-López and Collazo, were not paid
money or other consideration to keep the child but rather merely
expected to receive some of the proceeds of the ransom, the child
was not placed in their custody "in exchange for money or other
consideration."
The government contends that all the requirements for the
§2A4.1(b)(6) enhancement were met here: (1) the victim was clearly
a minor; (2) the child was placed in the custody of Fermín-López
and Collazo (both co-conspirators) shortly after being kidnapped,
and neither had legal right to that custody, and §2A4.1(b)(6) does
not by its terms refer to third parties; and (3) this placement of
the child was done in exchange for "consideration," in the form of
an expected share of the ransom money.
The literal language of §2A4.1(b)(6), standing alone,
does not define the precise behavior to which the enhancement is
meant to apply. Where a Guideline's language does not give a clear
answer, we turn to context and to relevant background, in the form
of other expressions by the Commission or background statutes, for
assistance. See United States v. Luna-Diaz, 222 F.3d 1, 4-6 (1st
Cir. 2000).3
3
The case law interpreting §2A4.1(b)(6) is sparse. We
encountered only one reported case discussing the Guideline, United
States v. Matthews, 225 F. Supp. 2d 893, 897 (N.D. Ill. 2002), and
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The government argues that we should construe the
Guideline to cover the defendant's conduct in this case because the
Sentencing Commission has given courts an "express instruction to
apply [§]2A4.1 broadly to conspiracy cases." The government cites,
in support, Application Note 4 to USSG §2A4.1, which states, in
part: "In the case of a conspiracy, attempt, or solicitation to
kidnap, §2X1.1 (Attempt, Solicitation, or Conspiracy) requires that
the court apply any adjustment that can be determined with
reasonable certainty." However, §2X1.1 merely requires courts to
apply enhancements in cases in which there is a reasonable
certainty that the factual basis for the enhancement exists. It
says nothing about what the text of §2A4.1(b)(6) means.
The legislative history sheds a bit of light. The
§2A4.1(b)(6) enhancement is a result of an amendment to 18 U.S.C.
§ 1201, the crime of kidnapping (not hostage taking), which was
passed as part of the Omnibus Crime Control Act of 1990. The
amendment, Pub. L. No. 101-647, 104 Stat. 4819, was added to the
bill late in the drafting stage, and there is little available
legislative history.
this case is inapposite. In Matthews, the district court declined
to apply the enhancement, requested by the government, because the
child never left the custody of the sole kidnapper. Id. The court
only briefly discussed the enhancement, found that this core
element was not satisfied, and did not purport to interpret its
precise meaning. Id.
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The structure of the amendment provides some insight,
however. The amendment added a new subsection to the kidnapping
statute,4 as a "[s]pecial rule for certain offenses involving
children." The amendment directed the Sentencing Commission to
amend the Guidelines for kidnapping to add the following specific
offense characteristics if the victim is under eighteen and the
offender is eighteen or older and not a close relative or legal
guardian of the child:
If the victim was intentionally maltreated
(i.e., denied either food or medical care) to
a life-threatening degree, increase by 4
levels; if the victim was sexually exploited
(i.e., abused, used involuntarily for
pornographic purposes) increase by 3 levels;
if the victim was placed in the care or
custody of another person who does not have a
legal right to such care or custody of the
child either in exchange for money or other
consideration, increase by 3 levels; if the
defendant allowed the child to be subjected to
any of the conduct specified in this section
by another person, then increase by 2 levels.
The Commission followed suit by passing USSG §2A4.1.
The amendment was geared to the crime of kidnapping, not
hostage taking. Nonetheless, the Guideline applies to both crimes.
The language also shows Congress's concern with kidnapping. The
language in the amendment containing the enhancement for offenses
involving children concerning "another person who does not have a
4
The amendment was subsequently codified at 18 U.S.C.
§ 1201(g)(2) (1991). This subsection was repealed by Pub. L. No.
108-21, Title I, § 108(b), April 30, 2003, 117 Stat. 643. The
Guideline, however, remains in force.
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legal right to such care or custody of the child" parallels the
exception to the enhancement where the offender is a parent or an
individual having legal custody of the child. See 18 U.S.C.
§ 1201(g)(1)(B)(ii)(I), (VII). It is also consonant with the
definition of the term "parent" in the kidnapping statute as not
including a person whose "parental rights with respect to the
victim . . . have been terminated by final court order." Id.
§ 1201(h). This language shows that Congress was concerned, inter
alia, about the possibility of kidnappings by parents whose
custodial rights had been terminated by court order.
This leaves us with the logic of the situation that the
amendment and derivative Guideline were meant to address. The
enhancements self evidently are meant to increase the sentence in
cases posing greater harm or greater potential harm to the victim,
where that victim is a minor.
The language of §2A4.1(b)(6), and of the 1990 amendment,
most easily fits a kidnap-for-hire situation,5 where the child is
kidnapped, by special order, to be turned over to the custody of a
third party who has no custody rights and who has paid the
kidnappers to do the job. There, the minor, "in exchange for money
or other consideration," is placed into the care of a third party
who has no custody rights. The third party, for example, may be a
5
Solicitation to kidnap is a separate crime, punishable under
18 U.S.C. § 373, and is dealt with in the Guidelines under USSG
§2X1.1.
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parent whose custodial rights have been terminated. It may also be
someone who is childless but wants to raise a child, or, even more
sadly, a house of prostitution. The motives for those who hire
kidnappers are varied. It makes sense to add additional punishment
for the kidnapper, who, in such situations, never intends to return
the child to her original home. Under this interpretation,
§2A4.1(b)(6) works as a counterpart to §2A4.1(b)(1), which enhances
the penalty when ransom is demanded. In a kidnap-for-hire
situation, ransom is not demanded; rather the kidnapper is paid to
accomplish the task of placing the child in the care or custody of
someone who has no legal right to such care or custody. If an
enhancement is appropriate for a demand of ransom, then it is
appropriate to have a parallel enhancement for a kidnap-for-hire.
We think this is the most likely meaning of §2A4.1(b)(6).
Yet the language permits another interpretation, also not
the situation here. The plain language of §2A4.1(b)(6), which
deals with whether a minor, "in exchange for money or other
consideration, was placed in the care or custody of another," does
not specify in which direction the exchange of money or other
consideration must go. Normally, one would expect the flow of
money to go to the kidnapper. But it is possible, under this broad
language, for the money to flow from the kidnapper. Another
plausible reading of §2A4.1(b)(6) involves the ransom-demanding
kidnapper, who in an effort to make it harder to find the victim,
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pays a third party to keep and care for the child. The interest in
resolving crimes without such impediments could easily be thought
to justify additional punishments.
If, as the government contends, every conspirator to a
kidnapping is subject to an enhancement because one or more of the
kidnappers, expecting the share of the ransom money, cares for the
child in the interim, then the distinction between this common
kidnapping situation and the kidnap-for-hire situation (or hiding
the child with a third party) would disappear, and it would render
the "placed in the custody of another person" requirement a
nullity.
Even more significantly, the government's interpretation
of §2A4.1(b)(6) creates incentives to behavior by kidnappers which
should be discouraged. The child does need someone to care for her
during the period of the kidnapping. There should be no incentive
for kidnappers to hide or even to abandon children (thus avoiding
responsibility for their custody or care). Such children may fall
into even greater harm's way before they are found. The 1990
amendment to 18 U.S.C. § 1201 giving rise to §2A4.1(b)(6) created
incentives in the Guidelines for kidnappers to avoid mistreatment
of children they hold in their care before the children are
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returned. It would be wrong to read it as creating incentives to
do the opposite.6
Alvarez-Cuevas's sentencing range, based on an Offense
Level of 30 and a Criminal History Category of I, was 97-121
months, and he was sentenced in the middle of that range, to 109
months' imprisonment. If the §2A4.1(b)(6) enhancement had not been
applied, Alvarez-Cuevas would have had an Offense Level of 27,
which would have resulted in a sentencing range of 70-87 months.
Thus, absent the enhancement, Alvarez-Cuevas would have been
sentenced to 22-39 fewer months of imprisonment. This difference
in sentence, if not corrected, would cause Alvarez-Cuevas
substantial prejudice and affect the fairness of judicial
proceedings.7
We remand to the original sentencing judge for
resentencing in light of Booker, 125 S. Ct. 738. The entire
sentence is, as a result, subject to reconsideration, not just the
§2A4.1(b)(6) enhancement. Other than the §2A4.1(b)(6) enhancement,
which must be vacated, we express no view on whether there should
6
Whether criminals are in fact motivated by incentives created
by the Guidelines when they commit crimes is another matter
entirely, of course.
7
We do not delve into whether, in claims of Booker error as to
Guidelines interpretation, defendant must also show, as in a pre-
Booker world, that the error itself met the separate requirements
that the error be plain. The government chose not to reply to
defendant's Booker argument and has not presented any such argument
to us.
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be any further change.8 See United States v. Mercado Irizarry, 404
F.3d 497, 503 (1st Cir. 2005).
The sentence is vacated and remanded to the sentencing
judge for further proceedings in accord with this opinion.
8
Our disposition renders moot the remaining issue in the
appeal.
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