United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 27, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 05-50474
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UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JOSE ISAIAS MEDINA-ARGUETA,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Jose Isaias Medina-Argueta pleaded guilty to harboring
illegal aliens and conspiring to harbor illegal aliens in
violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2, but reserved the
right to contest the district court’s “vulnerable victim”
enhancement under the United States Sentencing Guidelines §
3A1.1(b)(1). He claims that the district court erred by
increasing his guideline sentence range two levels pursuant to
the vulnerable victim sentence enhancement. We agree that the
district court erred in applying the vulnerable victim sentence
enhancement, but conclude that because Medina-Argueta’s sentence
falls within a properly calculated guideline range, his sentence
is presumptively reasonable.
I
Medina-Argueta’s presentence report recommended four
enhancements: a six-level enhancement because the offense
involved between 25 and 99 illegal aliens, a four-level
enhancement because Medina-Argueta brandished a pistol during the
offense, a two-level enhancement because Medina-Argueta
intentionally or recklessly created a substantial risk of harm to
the aliens, and another two-level enhancement because Medina-
Argueta knew or should have known that at least one illegal alien
was a vulnerable victim. Medina-Argueta was entitled to a three-
level reduction in his offense level for acceptance of
responsibility. His criminal history score was zero, and
combined with his total offense level of 23, this resulted in a
guideline imprisonment range of 46 to 57 months.
Medina-Argueta objected to the presentence report
recommendation, arguing that the evidence did not support a
finding that at least one alien was a vulnerable victim. After
hearing testimony, the district court overruled Medina-Argueta’s
objection. The district court found that there was at least one
vulnerable victim involved, possibly more. The court also
granted the Government’s motion for a downward departure for
substantial assistance, which resulted in a guideline range of 37
to 46 months imprisonment. On March 23, 2005, the court
sentenced Medina-Argueta to concurrent 37 month terms of
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imprisonment, concurrent three-year terms of supervised release,
and a $200 special assessment. Medina-Argueta filed a timely
notice of appeal challenging the district court’s ruling on the
vulnerable victim two-level sentence enhancement.
II
After United States v. Booker, 543 U.S. 220 (2005), we
continue to review a district court’s interpretation of the
Guidelines de novo and its factual determinations, including the
vulnerability of victims, for clear error. United States v.
Solis-Garcia, 420 F.3d 511, 513-14 (5th Cir. 2005); see also
United States v. Dock, 426 F.3d 269, 273 (5th Cir. 2005); United
States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005). We then
review the sentence, whether imposed pursuant to the Guidelines
or departing from them, for unreasonableness. United States v.
Duhon, 440 F.3d 711, 714 (5th Cir. 2006)(holding non-guideline
sentence of 60 months probation unreasonable where the district
court failed to take the Guidelines into account and misjudged
the seriousness of defendant’s possession of child pornography);
United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). The
reasonableness inquiry on appeal “is guided by the sentencing
considerations set forth in 18 U.S.C. § 3553(a).” Smith, 440
F.3d at 706. When, in its discretion, a court imposes a sentence
falling within a properly calculated guideline range, such a
sentence is presumptively reasonable. Id. at 706-07; United
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States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) (“We agree
with our sister circuits that have held that a sentence within a
properly calculated Guideline range is presumptively
reasonable.”).
A
Section 3A1.1(b)(1) of the United States Sentencing
Guidelines provides for a two-level enhancement “[i]f the
defendant knew or should have known that a victim of the offense
was a vulnerable victim.” Comment 2 of that section explains
that a vulnerable victim is someone “who is unusually vulnerable
due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” This court
has determined that, in order for an illegally smuggled alien
involved in a violation of 8 U.S.C. § 13241 to be a vulnerable
victim, he must be “more unusually vulnerable to being held
captive than would be any other smuggled alien.” United States
v. Angeles-Mendoza, 407 F.3d 742, 748 (5th Cir. 2005).
“[S]usceptibility to the defendant’s scheme alone is not enough
to qualify victims as unusually vulnerable. The victims must
also be vulnerable members of society and fall in the same
category as the elderly, the young, or the sick.” United States
v. Garza, 429 F.3d 165, 173-74 (5th Cir. 2005) (internal
1
This statute provides criminal penalties for bringing into
the United States or harboring certain aliens.
4
quotations omitted).
Because an alien’s illegal status is a prerequisite to the
crime of alien smuggling, it is error for a district court to
find unusual vulnerability based on that status. Dock, 426 F.3d
at 273.
In Medina-Argueta’s case, the district court stated:
I look on [aliens] as desperate people who are
reaching out. . . . No one died here and there is
no evidence of any injury. I cannot attribute that
to the fact that these people were treated humanely
and with dignity, however. I think a lot of the
fact that they remained alive could be due in no
small happenstance to good fortune. I consider
placing them in a small, the report says, 15-by-15
room, as extremely inhumane. I consider holding
people against their will until money is obtained
extremely inhumane. I do think there was vulnerable
victims here, at least one, possibly more, and I so
find.
Medina-Argueta contends that the district court erred in
applying the vulnerable victim enhancement. The Government
claims that the district court did not err because the aliens
were confined in an apartment that measured only 15-by-15 feet,
the temperature in the apartment was uncomfortably hot, one alien
was held for two weeks while the smugglers waited to be paid, and
the aliens were from Honduras and had therefore experienced more
prolonged stress than aliens smuggled from Mexico. Two possible
errors exist: (1) the above factors are conditions of smuggling,
not personal characteristics of an unusually vulnerable victim,
and (2) the district court did not substantiate its conclusion
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that one or more victims was vulnerable with specific findings or
by direct observation of the victims.
Although it is unclear whether the district court intended
the smuggling conditions to substantiate its vulnerable victim
finding, none of the factors to which the Government points are
characteristics of a victim that would tend to place him in the
same category as the young, old, or sick, rendering him
particularly vulnerable for purposes of the sentence enhancement.
In United States v. Angeles-Mendoza, we found that the district
court committed clear error in finding vulnerable victims when 29
illegal aliens were held at an Austin stash house. The smuggled
aliens were held until the defendants received fees for the
transport; to deter escape, the defendants took the aliens’ shoes
and socks, and guarded them in a boarded-up and locked stash
house with a shotgun. 407 F.3d at 745-46. We held that
generalized findings regarding the conditions of smuggled aliens
“misse[d] the mark for a qualifying vulnerability.” Id. at 747.
We pointed out that:
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.
. . . 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.
Id. at 747-48.
6
Along with possibly relying on the conditions of smuggling,
which are not directly relevant to the vulnerable victim
determination, the district court also failed to substantiate its
findings with personal characteristics of the victims. Like in
Angeles-Mendoza, the district court in the instant case “failed
to mention a characteristic [of a victim that] 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.” Angeles-Mendoza, 407 F.3d at 747-48
(internal quotations omitted). In addition, unlike United States
v. Dock, the district court did not have the opportunity to
observe the aliens in the proceedings below. As a result, it
would be inappropriate for us to defer to the district court in
this case. Compare Dock, 426 F.3d at 273. The district court
erred in applying the two-level enhancement for a vulnerable
victim in determining Medina-Argueta’s guideline range of
imprisonment.
B
Due to the enhancement error, the district court
miscalculated the appropriate guideline range and sentenced
Medina-Argueta after considering an incorrect range. Under
Duhon, a miscalculation of the guideline range “deprives the
sentence of ‘great deference’ and is a factor to be considered in
assessing the reasonableness of the sentence.” 440 F.3d at 716.
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Without the erroneous vulnerable victim enhancement, Medina-
Argueta’s correct guideline range would have been 30 to 37
months. Medina-Argueta’s 37 month sentence, though imposed with
reference to an improperly calculated guideline range,
nonetheless falls within the correct guideline range.
In our cases reviewing sentences imposed after Booker, we
have not had occasion to address the applicability of Alonzo’s
reasonableness presumption when the district court initially
miscalculates the guideline range. We hold that in situations
such as this, in which the district court miscalculates the
guideline range yet imposes a sentence that falls within a
properly calculated guideline range, the sentence enjoys a
presumption of reasonableness. This conclusion comports with our
prior decisions. See Alonzo, 435 F.3d at 554 (“[A] sentence
within a properly calculated guideline range is presumptively
reasonable.”) (emphasis added); United States v. Mares, 402 F.3d
511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005) (“This
duty to ‘consider’ the Guidelines will ordinarily require the
sentencing judge to determine the applicable Guidelines range
even though the judge is not required to sentence within that
range.”) (emphasis added).
We do not believe that Angeles-Mendoza counsels a different
outcome than the one we reach here. In Angeles-Mendoza, the
district court incorrectly applied the same § 3A1.1(b)(1)
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enhancement as was misapplied here, and this court remanded for
resentencing in light of the guideline miscalculation. 407 F.3d
at 746–48, 754. That case, however, involved sentences imposed
under a mandatory guideline regime, and there is no indication
that the sentences imposed fell within the properly calculated
guideline ranges. Here, Medina-Argueta was sentenced post-Booker
under the advisory guidelines, and his sentence falls within the
properly calculated guideline range.2
III
Though the district court miscalculated the applicable
guideline range, Medina-Argueta’s sentence falls “within a
properly calculated guideline range,” Alonzo, 435 F.3d at 554,
and the sentence remains presumptively reasonable. Since
Medina-Argueta does not articulate any 18 U.S.C. § 3553(a)
factors that militate against the sentence’s reasonableness, we
AFFIRM his sentence.
2
Furthermore, the district court stated that, in its view,
any lower sentence would be inappropriate. In contrast to the
facts of Angeles-Mendoza, Medina-Argueta’s sentence was not
imposed “as a result of an incorrect application of” §
3A1.1(b)(1), which would require reversal under the still-intact
18 U.S.C. § 3742(f)(1). See Angeles-Mendoza, 407 F.3d at 754
(“Booker did not invalidate 18 U.S.C. § 3742(f)(1).”); Duhon, 440
F.3d at 716 (“Because [the defendant]’s non-Guideline sentence
did not directly ‘result’ from the Guidelines error, it need not
be vacated . . . based solely on the miscalculation.”).
Formalism does not require us to vacate Medina-Argueta’s sentence
so that the district court, on remand, will simply impose the
exact same sentence, which on subsequent appeal we would be
required to presume reasonable under Alonzo.
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