United States v. Dock

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 19, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 03-41598

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TROY PHILLIP DOCK,

Defendant-Appellant.

Appeal from the United States District Court for
the Eastern District of Texas
_________________________________________________________

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, DAVIS and WIENER, Circuit Judges.

REAVLEY, Circuit Judge:

Troy Philip Dock appeals the district court’s imposition of 405 months’

imprisonment. We originally affirmed the sentence in an unpublished opinion,

finding that the court correctly applied the United States Sentencing Commission

Guidelines. United States v. Dock, No. 03-41598, 2005 U.S. App. LEXIS 194 (5th

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Cir. Jan. 6, 2005). We rejected Dock’s argument that the court’s application of the

guidelines violated his Sixth Amendment rights under Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2005), under our then-controlling precedent, which held

Blakely inapplicable to the federal guidelines. United States v. Pineiro, 377 F.3d

464, 465-66 (5th Cir. 2004), vacated by Pineiro v. United States, __ U.S. __, 125

S. Ct. 1003 (2005), on remand at United States v. Pineiro, 410 F.3d 282 (5th Cir.

2005). Dock appealed to the Supreme Court. Following the Court’s decision that a

district court’s sentence enhancement based on facts not found by a jury or admitted

by the defendant does offend the Sixth Amendment in United States v. Booker, __

U.S. __, 125 S. Ct. 738 (2005), the Court vacated our original opinion and

remanded for our reconsideration. Dock v. United States, __ U.S. __, 125 S. Ct.

2520 (2005). We again reject Dock’s non-constitutional challenges to the district

court’s application of the guidelines, and, because Dock cannot establish that the

district court’s fact findings at sentencing constituted plain error, we also reject his

Sixth Amendment challenge.

I. Background

Dock, a United States citizen, lived in Juarez, Mexico and worked as a truck

driver. In July 2002, he and a co-defendant, Sprague, were hired to transport a load

of medical supplies from El Paso to Wisconsin. Having agreed with an alien

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smuggling operation to transport about fifty illegal Mexican immigrants from rural

New Mexico to Dallas, Dock and Sprague drove the truck, filled with medical

supplies, to New Mexico to pick up the aliens late on July 26, 2002. The majority

of the aliens were directed into the two- to three-foot space above the cargo in the

trailer, which was not equipped to transport living beings. Sprague then padlocked

the rear trailer doors. Between 1 a.m. and 2:30 p.m. on July 27, Dock and Sprague

drove the tractor-trailer from New Mexico to Dallas. During the morning and early

afternoon, heat in the trailer (reaching an estimated 150 degrees Fahrenheit) caused

conditions to become unbearable. Those inside, desperate for ventilation and water,

attempted to break through the trailer walls to get air and screamed and pounded on

the walls for help. When Dock and Sprague stopped at a truck stop in Dallas at

2:30 p.m. and unlocked the trailer doors, the aliens jumped and fell out of the trailer,

some unconscious. Dock and Sprague closed the trailer doors and traveled another

fifty miles to Anna, Texas. There they discovered that three men remained in the

trailer, two of whom were dead and one of whom was in a coma. Dock and

Sprague later admitted involvement in the smuggling operation to state troopers who

responded to the scene.

The government charged Dock with one count of racketeering activity under

the Racketeer Influenced Corrupt Organizations Act (RICO), one count of interstate

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travel in aid of racketeering (ITAR), multiple counts of alien transporting, and one

count of conspiring to transport illegal aliens. Dock pleaded guilty to the RICO,

ITAR, and conspiracy counts.1 The district court accepted his plea.

The district court determined that the combined offense level for Dock’s

conduct was 44, after imposing enhancements for vulnerable victims, use of special

skill, and restraint of victims. United States v. Dock, 293 F. Supp. 2d 704, 708-15

(E.D. Tex. 2003). It applied a three-level reduction for acceptance of responsibility,

resulting in an offense level of 41 and a range of 324-405 months. Id. at 715. The

court imposed a sentence of 405 months, and this appeal followed. Because we do

not believe that Dock’s non-constitutional challenges to his base offense level and

enhancements for restraint of victims and special skill merit further attention, we

affirm the district court’s opinion on those points for the reasons stated therein. Id.

at 708-15; see also United States v. Sprague, No. 03-41733, 2005 U.S. App.

LEXIS 9944 (5th Cir. May 31, 2005). Although we ultimately conclude that

Dock’s non-constitutional challenge to the vulnerable victims enhancement is

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When Dock pleaded guilty, he admitted to six underlying offenses for the RICO
count: one allegation of alien smuggling, one allegation of participating in a conspiracy to
smuggle aliens, two allegations of state felony murder, one allegation of money
laundering, and one allegation of conspiring to launder money. He admitted to four
underlying offenses for the ITAR count: one allegation of alien smuggling, two
allegations of state felony murder, and one allegation of conspiring to launder money.

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without merit, the issue deserves some discussion. This opinion is therefore

directed solely to Dock’s Sixth Amendment challenge to the district court’s findings

of fact at sentencing under Booker and his non-constitutional challenge to the

vulnerable victims enhancement .

II. Booker

Dock did not raise his Blakely/Booker challenge at sentencing, so our review

of the issue is for plain error only. United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005). Dock must establish that, in using facts not admitted by Dock or proven

to a jury to enhance Dock’s sentence under mandatory guidelines, the district court

committed (1) error, (2) that is plain, (3) that affected Dock’s substantial rights, and

(4) that seriously affected the fairness or integrity of the judicial proceeding. Id.

Under the third prong, Dock must show that the error affected the outcome of

sentencing; i.e., that the district court would have imposed a significantly different

sentence under an advisory rather than a mandatory guidelines scheme. Id. at 521.

Dock has not carried that burden. The district court provided its reasons for

enhancing Dock’s sentence in a published opinion, and the record does not indicate

that the court would have imposed a significantly different sentence if operating

under advisory guidelines. Sprague, 2005 U.S. App. LEXIS 9944, *3-4; Mares,

402 F.3d at 521-22. Because Dock has not shown plain error, we cannot vacate his

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sentence on Sixth Amendment grounds.

III. Vulnerable Victims

Dock contends that the district court committed non-constitutional sentencing

error in enhancing his sentence for vulnerable victims. Section 3A1.1(b) of the

guidelines provides for such an enhancement “[i]f the defendant knew or should

have known that a victim of the offense was a vulnerable victim.” The commentary

defines a “vulnerable victim” as a person “who is unusually vulnerable due to age,

physical or mental condition, or who is otherwise susceptible to the criminal

conduct.” U.S. SENTENCING GUIDELINES MANUAL § 3A1.1 cmt. n.2 (2004)

(hereinafter “SENTENCING GUIDELINES”). The enhancement encompasses not only

direct victims of the defendant’s offense of conviction, but also victims of any

conduct committed by the defendant in preparation for or during the commission of

the offense. Id.; SENTENCING GUIDELINES § 1B1.3(a)(1). After Booker, where the

sentencing judge imposes a sentence within a properly calculated guidelines range,

we will generally find the sentence reasonable. Mares, 402 F.3d at 519. We review

the court’s factual findings in calculating that range for clear error and its

application or interpretation of the guidelines de novo. United States v. Huerta,

182 F.3d 361, 364 (5th Cir. 1999).

Dock first argues that the district court erroneously based its vulnerability

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determination solely on the aliens’ illegal status, in contravention of this court’s

holding in United States v. Moree, 897 F.2d 1329 (5th Cir. 1990). In Moree, we

held that “[a] condition that occurs as a necessary prerequisite to the commission of

a crime cannot constitute an enhancing factor under § 3A1.1. The vulnerability that

triggers § 3A1.1(b) must be an ‘unusual’ vulnerability which is present in only some

victims of that type of crime.” Id. at 1335. Because an alien’s illegal status is a

prerequisite to the crime of alien smuggling, it indeed would have been error for the

district court to find unusual vulnerability based on that status. See 8 U.S.C. §

1324(a)(1)(A)(ii)-(iii) (providing criminal penalties for transport and concealment of

an alien illegally present in the United States).

Contrary to Dock’s assertions, however, the district court did not base its

vulnerability finding on the aliens’ illegal status. Rather, the court found that Dock

knew or should have known of the following facts: (1) the aliens had been kept

isolated in cramped conditions in rural New Mexico waiting for transport, some for

up to two weeks; (2) once Dock and Sprague had locked the aliens in the truck

“they were indeed ‘particularly susceptible’ to the criminal conduct which would be

inflicted upon them over the next twelve hours”; and (3) the aliens were so

desperate for transport away from the border that they were at the mercy of their

transporters. Dock, 293 F. Supp. 2d at 713-14. Although the aliens’ desperation for

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transport may have been a result of their illegal status, not every illegal alien who

enters this country finds themselves in the desperate circumstances these people

faced. Because the district court had the opportunity to observe several of the aliens

in the proceedings below, we defer to its finding that one or more of them were

particularly vulnerable to the crime due to the factors enumerated above.2 United

2
At oral argument, Dock’s counsel also argued that the district court erred by
considering factors created by the defendant during the course of the crime in its
vulnerability determination (i.e., the vulnerability created when Dock and Sprague placed
the lock on the trailer door). Counsel also argued that the district court impermissibly
based the vulnerable victims enhancement on a characteristic shared by a large group of
potential victims—the economic desperation of poor Mexicans seeking work in the
United States to increase their standard of living. However, Dock did not raise these
arguments in his appellate brief. They are therefore waived, and we need not decide
them. United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000); Johnson v.
Puckett, 176 F.3d 809, 814 (5th Cir. 1999).

We note that, while there is little authority on the issue, both the Second and Ninth
Circuits have upheld a district court’s vulnerability finding based, at least in part, on
vulnerability created by the defendant during the course of the crime. United States v.
Veerapol, 312 F.3d 1128 (9th Cir. 2002); United States v. Altman, 901 F.2d 1161 (2d Cir.
1990); cf. United States v. Zats, 298 F.3d 182, 189-90 (3d Cir. 2002) (stating that the
knowledge or notice requirement of § 3A1.1(b) can be satisfied by knowledge that arises
during the course of an ongoing crime). In Veerapol, the defendant was convicted of
holding another to involuntary servitude after she brought a young woman to the United
States from Thailand and forced the woman to work for her. The court affirmed the
district court’s vulnerable victims enhancement based on the victim’s immigrant status,
her lack of sophistication, education, and knowledge of U.S. law, and “the treatment of
[the victim] while [she was] here.” Veerapol, 312 F.3d at 1133-34 (emphasis added). In
Altman, the defendant had posed as a modeling agency owner and induced women to
become his models, then “plied them with [an] amphetamine diet pill and had sex with
them.” He was convicted of sexual exploitation of a minor. The court affirmed the
district court’s sentence enhancement based on vulnerable victims because the defendant
“drugged his victims, making them physically and mentally more vulnerable.” Altman,
901 F.2d at 1165.

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States v. Rocha, 916 F.2d 219, 244 (5th Cir. 1990).

Dock also argues that the district court erroneously enhanced his sentence

under § 3A1.1(b), because he did not “target” the aliens because they were

vulnerable. That section, however, does not require that the defendant chose

victims based on vulnerability, but only that he knew or should have known of the

vulnerability. United States v. Burgos, 137 F.3d 841, 843-44 (5th Cir. 1998).

Although some circuits had held that targeting was required under the guideline

before 1995, this court has never articulated a targeting requirement. Id. Moreover,

the guideline’s application notes were amended in 1995 to clarify that a court need

not find targeting to enhance a sentence under § 3A1.1. Id.; see also United States

v. Zats, 298 F.3d 182, 189-90 (3d Cir. 2002). The district court’s finding that Dock

knew or should have known of the aliens’ particular vulnerability is plausible in light

Dock did argue in his appellate brief that the district court impermissibly based the
enhancement on the aliens’ class status as illegal immigrants. As discussed above,
however, this contention is without merit. At oral argument, Dock’s counsel additionally
argued that the district court based the enhancement on the aliens’ class status as poor
illegal immigrants desperate for work in the United States. Although we decline to
decide whether the enhancement may be based on a victim’s membership in a large class
of potential victims defined by a shared characteristic that makes the entire class
particularly vulnerable because it was not adequately presented in Dock’s brief, we note
that courts have upheld such use of § 3A1.1(b). See, e.g., U.S. v. Mendoza, 262 F.3d
957, 960 (9th Cir. 2001) (stating that the application note to § 3A1.1 makes clear that a
large class of potential victims may be particularly vulnerable due to a shared
characteristic, such as cancer); see SENTENCING GUIDELINES § 3A1.1 application n.2.

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of the record, and its application of § 3A1.1(b) was thus not clearly erroneous.

United States v. Watson, 966 F.2d 161, 162 (5th Cir. 1992).

In sum, the district court correctly applied the vulnerable victims guideline in

its calculation of Dock’s guidelines range, and we therefore conclude that the

sentence, which falls within that range, is reasonable. Mares, 402 F.3d at 519.

IV. Conclusion

Because Dock has not established that the district court’s application of the

then-mandatory sentencing guidelines constitutes plain error, we reject his Sixth

Amendment challenge to his sentence. We find no non-constitutional error in the

district court’s application of the guidelines, including its enhancement of Dock’s

sentence for vulnerable victims, and consequently affirm the sentence.

AFFIRMED.

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