United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2006
Charles R. Fulbruge III
Clerk
No. 05-10832
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMACIO ANDRADE-CASTANEDA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-295-1
--------------------
Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Damacio Andrade-Castaneda (Andrade) appeals his 240-month
sentence from a conviction for conspiracy to commit hostage
taking, hostage taking and aiding and abetting, conspiracy to
transport and harbor illegal aliens, harboring illegal aliens and
aiding and abetting, and transporting illegal aliens. Andrade
argues that the district court erred in imposing the following
sentencing increases: a six level increase for a ransom demand,
a one level increase for failure to release an illegal alien, a
two level increase for vulnerable victim, and a four level
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-10832
-2-
increase for leadership role in the offenses. Because Andrade
raised his objections in the district court, we review the
district court’s legal interpretation of the Sentencing
Guidelines de novo and its factual findings for clear error.
United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.
2005).
With respect to the ransom increase, Andrade argues that
§ 2A4.1(b)(1) requires the district court to make a finding that
an additional demand was made increasing the price from that
which was originally agreed upon by the illegal alien and the
smuggler. Although this court has not decided whether
§ 2A4.1(b)(1) requires a finding of an additional increase of
money beyond that already owed in the hostage taking, it is
unnecessary to decide the question in Andrade’s case. Here,
testimony from illegal aliens harbored by Andrade’s organization
supports the district court’s conclusion that the fees imposed by
Andrade’s organization were increased after the aliens crossed
the border. Accordingly, the district court did not clearly err
in assigning the six level increase. See Angeles-Mendoza, 407
F.3d at 746.
With respect to the increase for failure to release an alien
prior to the expiration of seven days, Andrade argues that
because the aliens did not decide to leave until two or three
days after their abductors stopped feeding them, the detention
did not exceed seven days. Andrade’s argument lacks merit. The
No. 05-10832
-3-
record contains testimony from one of the aliens harbored by
Andrade, as well as a neighbor in a house adjacent to where the
aliens were kept, that supports the increase pursuant to
§ 2A4.1(b)(4)(B). Because the record supports the conclusion
that the hostages were detained in excess of seven days from
their detention, the district court did not clearly err in
assigning a one level increase. See Angeles-Mendoza, 407 F.3d at
746.
With respect to the vulnerable victim increase pursuant to
§ 3A1.1(b)(1), Andrade argues that the district court erred
because it failed to articulate an unusual vulnerability in the
aliens. The record reflects that the conditions referenced by
the district court were conditions of smuggling, not personal
characteristics of a vulnerable victim. See United States v.
Medina-Argueta, 454 F.3d 479, 482-83 (5th Cir. 2006); Angeles-
Mendoza, 407 F.3d 745-48. Moreover, the district court failed to
articulate specific findings or direct observations of victims to
support the § 3A1.1(b)(1) increase. Medina-Argueta, 454 F.3d at
482-83. The district court thus committed clear error in
assigning this increase. See id. at 483. Due to this
enhancement error, the district court miscalculated the
appropriate guideline range. See id. Without the two level
increase, Andrade’s overall offense level would have been 35.
With a level I criminal history category his correct guideline
range would have been 168 to 210 months of imprisonment.
No. 05-10832
-4-
Accordingly, the district court’s sentence of 240 months of
imprisonment must be vacated and the case remanded for
resentencing in light of this guideline miscalculation. See
Angeles-Mendoza, 407 F.3d at 746-48, 54.
With respect to the leadership role increase, Andrade argues
that there was no evidence that he organized the participants in
the conspiracy. The record reflects that Andrade recruited
numerous individuals to guard the aliens who were held at the
house in Corsicana, Texas, and to transport the aliens to Dallas,
Houston, and Georgia. The record further reflects that Andrade
planned these trips and paid the drivers. Andrade recruited
others to cash money orders from the ransom payments received.
Andrade’s assertion that two other individuals retained
leadership roles is unavailing because proof that the defendant
supervised only one other culpable participant is sufficient to
make the defendant eligible for this enhancement. See United
States v. Washington, 44 F.3d 1271, 1281 (5th Cir. 1995). The
district court’s leadership role enhancement was not clearly
erroneous. See Angeles-Mendoza, 407 F.3d at 746.
Andrade argues that the district court’s sentencing
increases violate the Ex Post Facto Clause because his offense
was committed prior to the Supreme Court’s decision in Booker.
As Andrade concedes, his argument that the Ex Post Facto Clause
prohibits the district court from applying Booker’s remedial
opinion to his case was squarely rejected by this court in United
No. 05-10832
-5-
States v. Scroggins, 411 F.3d 572, 575-77 (5th Cir. 2005). He
raises the argument only to preserve it for Supreme Court review.
SENTENCE VACATED AND REMANDED FOR RESENTENCING CONSISTENT
WITH THIS OPINION.