United States v. Angeles-Mendoza

United States Court of Appeals
Fifth Circuit
F I L E D
In the April 26, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk

_______________

m 04-50118
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DANIEL ANGELES-MENDOZA,

Defendant-Appellant.

***************

_______________

m 04-50119
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FELIPE CERON-ESPINOZA,

Defendant-Appellant.

***************
 _______________

m 04-50142
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERIK ANGELES-MENDOZA,

Defendant-Appellant.

_________________________

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

Before HIGGINBOTHAM, SMITH, and 511 (5th Cir. 2005), petition for cert. filed
BENAVIDES, Circuit Judges. (Mar. 31, 2005) (No. 04-9517), and their
progeny.
JERRY E. SMITH, Circuit Judge:
I.
In these consolidated appeals, defendants Erik Angeles-Mendoza, Felipe Ceron-
challenge adjustments made to their sentencing Espinoza, and Daniel Angeles-Mendoza
ranges under the United States Sentencing pleaded guilty to two counts of conspiracy to
Guidelines.1 Although the district court cor- smuggle, transport, and harbor illegal aliens, 8
rectly decided most of the issues on appeal, it U.S.C. § 1324(a)(1)(A), and a charge of
did err in applying the vulnerable victim adjust- possession of a firearm by an illegal alien, 18
ment, U.S.S.G. § 3A1.1(b)(1). For this rea- U.S.C. § 922(g)(5). According to the factual
son, we vacate and remand for resentencing in basis for the guilty pleas, police discovered
light of United States v. Booker, 125 S. Ct. twenty-nine illegal aliens, including defendants,
738 (2005), United States v. Mares, 402 F.3d at an Austin stash house. The smuggling
operation picked up illegal aliens in Mexico in
1
pickup trucks that had been modified by re-
All references to the guidelines are to the 2002 moving the passenger seats to allow them to fit
version, which were in effect when the criminal
more aliens inside.
conduct took place.

2
 Once at the stash house, the smuggled II.
aliens were held until defendants received fees Defendants bring a variety of challenges to
for the transport. To deter escape, defendants the method used to calculate their sentencing
took the aliens’ shoes and socks, and guarded ranges under the guidelines. Although the
them in the boarded-up and locked stash house Court in Booker excised and struck down the
with a shotgun. All three defendants were statutory provisions that made the guidelines
identified by smuggled aliens to be the “enforc- mandatory,2 a district court is still required to
ers” at the house who patrolled with the shot- calculate the guideline range and consider it
gun and made calls to the aliens’ relatives to advisory.3 Under Booker, we still review the
collect fees. district court’s interpretation and application
of the guidelines de novo. United States v.
At sentencing, the district court applied Villegas, 2005 U.S. App. LEXIS 4517, at *8
upward adjustments based on findings that the (5th Cir. Mar. 17, 2005) (per curiam). We
smuggling operation involved over one hun- thus proceed to review each of the challenges
dred aliens, that a weapon was brandished to the district court’s application of the guide-
during the offense, that the aliens were physi- lines.
cally restrained during the offense, that the
defendants took advantage of the aliens’ III.
vulnerabilities, and that the aliens were reckl- Defendants challenge the two-level en-
essly endangered by the methods by which hancement to their offense level pursuant to
they were smuggled. The court applied a
downward adjustment for acceptance of re- 2
sponsibility only to Daniel Angeles-Mendoza, Booker, 125 S. Ct. at 764 (opinion of Breyer,
J.) (“[W]e must sever and excise two specific stat-
because it doubted the sincerity of the others
utory provisions: the provision that requires sente-
in their guilty pleas. The court also denied
ncing courts to impose a sentence within the appli-
Ceron-Espinoza’s request for a downward ad- cable Guidelines range (in the absence of circum-
justment based on his claim that he played only stances that justify a departure), see 18 U.S.C.
a minimal role in the offense, finding that he §3553(b)(1) (Supp. 2004), and the provision that
was an average participant in the conspiracy. sets forth standards of review on appeal, including
The court ultimately sentenced Erik Angeles- de novo review of departures from the applicable
Mendoza to concurrent 108-month terms of Guidelines range, see § 3742(e) (main ed. and
imprisonment and to concurrent three-year Supp. 2004).”).
periods of supervised release, and Daniel
3
Angeles-Mendoza to concurrent 78-month Id. at 756-57; Mares, 402 F.3d at 518-19
terms of imprisonment and to concurrent (“Even in the discretionary sentencing system es-
three-year periods of supervised release. tablished by [Booker], a sentencing court must still
carefully consider the detailed statutory scheme
created by the [Sentencing Reform Act] and the
Guidelines which are designed to guide the judge
toward a fair sentence while avoiding sentence
disparity . . . . This duty to ‘consider’ the Guide-
lines will ordinarily require the sentencing judge to
determine the applicable Guidelines range even
though the judge is not required to sentence within
that range.”).

3
U.S.S.G. § 3A1.1(b)(1), which applies where different federal criminal statuteSSthe Hostage
an offender “knew or should have known that Taking ActSSeven where the seizure or deten-
a victim of the offense was a vulnerable vic- tion was not against the hostage’s will at its
tim.” For the upward enhancement to apply, inception. See United States v. Carrion-Caliz,
the victim must be “unusually vulnerable due 944 F.2d 220, 226 (5th Cir. 1991). Because
to age, physical or mental condition, or . . . the smuggled aliens were detained against their
otherwise particularly susceptible to the crimi- will after being transported, they are “victims”
nal conduct.” U.S.S.G. § 3A1.1, cmt. 2 n.1. with regard to conduct relevant to the offenses
We review the district court’s interpretations for which defendants pleaded guilty, and thus
of the guidelines de novo and its factual finding a § 3A1.1 adjustment would be appropriate if
of unusual vulnerability for clear error.4 they have a qualifying vulnerability about
which defendants knew or should have known.
The court did not err in finding that the
smuggled aliens were “victims” for purposes On the other hand, the district court did
of § 3A1.1(b)(1). Defendants cite United commit clear error in finding that an enhance-
States v. Velasquez-Mercado, 872 F.2d 632, ment was appropriate, because it failed to find
636 (5th Cir. 1989), in which we noted that that the victims were unusually vulnerable to
for purposes of similar federal criminal charges the offense as required under § 3A1.1(b)(1),
for smuggling and concealing aliens, the trans- cmt. n.2. In granting the enhancement, the
ported persons might appropriately be consid- court made scant, generalized findings; it
ered “customers” of the defendants rather than merely stated for the record that aliens coming
“victims” of the offense, because they volun- from Mexico and other countries from the
tarily joined the scheme as willing participants south seek to come under “. . . economic and
as to its objectiveSSto be brought illegally into physical stress, seeking work, seeking food,
the United States. The Velasquez-Mercado seeking to support their families, and for
panel, however, used the 1988 version of the someone or more people to take advantage of
guidelines, which did not include the commen- that mind-set, holding them, in effect, hostage.
tary, added in 1997, that clarified the meaning . . .” This misses the mark for a qualifying
of “victim” in applying the enhancement: “For vulnerability under § 3A1.1, which we have
purposes of subsection (b), “victim” includes previously required to be an “unusual vulnera-
any person who is a victim of the offense of bility which is present in only some victims of
conviction and any conduct for which the that type of crime.”5
defendant is accountable under § 1B1.3.”
U.S.S.G. § 3A1.1, cmt. n.2 (1997) (emphasis The guidelines represent Congress’s deter-
added). mination, through the Sentencing Commission,
of how much punishment a particular crime
This court has determined that a person can
be held captive, and thus victimized, under a
5
United States v. Moree, 897 F.2d 1329, 1335
(5th Cir. 1990) (emphasis added); see United
4
United States v. Brugman, 364 F.3d 613, 621 States v. Wetchie, 207 F.3d 632, 634 (9th Cir.
(5th Cir.) (citing United States v. Lambright, 320 2000) (defining an unusually vulnerable victim as
F.3d 517, 518 (5th Cir. 2003)), cert. denied, 125 one who is “less able to resist than the typical vic-
S. Ct. 212 (2004). tim of the offense of the conviction”).

4
deserves, taking into account the inherent they were physically restrained until payment
nature of the type of offense. The district for their transport was received. As we have
court only noted general characteristics com- noted, however, the holding of aliens pending
monly held by aliens seeking to be illegally payment is not an unusual practice where they
smuggled and failed to mention a characteristic have not paid in advance for their transport.8
the defendant knowingly took advantage of, Although the physical restraint of the smug-
such that the offense demonstrated the “extra gled aliens during the commission of the of-
measure of criminal depravity which § 3A1.1 fense may have been appropriately used to
intends to more severely punish.”6 Although grant an upward enhancement under U.S.S.G.
the court may have been correct in noting the § 3A1.3SSthe guidelines provision dealing
inherent vulnerability of smuggled aliens, we specifically with physical restraint of vic-
assume that such a characteristic was ade- timsSSthere is no evidence that the aliens in
quately taken into account in establishing the this case were more unusually vulnerable to
base offense level in U.S.S.G. § 2L1.1.7 being held captive than would be any other
smuggled alien involved in a violation of
The government argues that the level of § 1324.9
vulnerability “exceeded the type of vulnerabil-
ity that might ordinarily accompany smuggling IV.
and harboring aliens” based on the fact that Defendants object to the assessment of a
nine-level enhancement, pursuant to U.S.S.G.
6
§ 2L1.1(b)(2)(C), based on a finding that the
Moree, 897 F.2d at 1335; United States v. number of smuggled aliens exceeded one
Robinson, 119 F.3d 1205, 1219 (5th Cir. 1997) hundred. This increase was recommended in
(“Application of the vulnerable victim guideline is
Erik Angeles-Mendoza’s Presentence Report
limited to cases in which the victims ‘are in need of
(“PSR”), but not in Daniel Angeles-Mendoza’s
greater societal protection’ and the offenses are
thus ‘more criminally depraved than they would be or Carron-Espinoza’s, both of whose PSR’s
otherwise.”) (quoting United States v. Castellanos, recommended only a six-level increase pursu-
81 F.3d 108, 110 (9th Cir. 1996)). ant to U.S.S.G. § 2L1.1(b)(2)(B)SSbased
solely on the twenty-six aliens discovered to be
7
This is not to say that the inherent vulnerabil- detained at the stash house.
ity of smuggled aliens may never be used as a
qualifying vulnerability for purposes of a § 3A1.1
upward adjustment; other crimes that do not nec-
essarily involve smuggled aliens might involve
more depravity and thus might render the defendant 8
See United States v. Patino-Cardenas, 85
eligible for the adjustment where the crime is F.3d 1133, 1134-35 (5th Cir. 1996); United States
directed toward aliens to take advantage of their in- v. Briones-Garza, 680 F.2d 417, 419 (5th Cir.
herent vulnerabilities. Cf. United States v. 1982).
Amedeo, 370 F.3d 1305, 1317 n.10 (11th Cir.
9
2004) (applying § 3A1.1 enhancement where de- The district court also may have made its de-
fendant raped victim after giving her drugs, where cision to grant the upward enhancement based on
defendant knew that the victim was a drug addict the fact that some of the aliens were minors. There
from his former legal representation of her; noting is no evidence, however, that the youth of some of
that not every drug addict is a vulnerable victim them made them especially vulnerable to being
under § 3A1.1). victimized.

5
 A. caused no no prejudice11 to these defendants’
Although Daniel Angeles-Mendoza and ability to prepare adequately for sentencing:
Carron-Espinoza conceded that they received Defendants both had actual knowledge of the
oral notice of the government’s intent to government’s position before the hearing and
object to the PSR’s recommendation that they presented a defense to the use of the ledger to
receive only a six-level enhancement, they support a nine-level enhancement under §
objected to the fact that they did not receive 2L1.1(b)(2)(C).12 Moreover, our precedents
timely written notice under rule 32 of the even would have allowed the court sua sponte
Federal Rules of Criminal Procedure. Accord- to impose upward enhancements where the
ing to rule 32(f)(1), “Within 14 days after defendant had no explicit knowledge of the
receiving the presentence report, the parties possibility of such an enhancement but was
must state in writing any objections, including aware of its underlying facts.13
objections to material information, sentencing
guideline ranges, and policy statements con-
tained in or omitted from the report.” (Em- 11
Although “good cause” is not specifically de-
phasis added.) fined by rule 32 and would seem to suggest that the
inquiry only concerns the grounds for the default-
Rule 32(i)(1)(D), however, gives the dis- ing party’s omission, “in practice ‘good cause’
trict court broad discretion over this matter in inquiries typically range more broadly, addressing
that it “may, for good cause, allow a party to (for instance) adverse effectsSSdirect or system-
make a new objection at any time before icSSon opposing parties or the judiciary.” United
sentence is imposed.” FED. R. CIV. P. States v. McCoy, 313 F.3d 561 (D.C. Cir. 2002)
32(i)(1)(D); see also United States v. Wheeler, (considering prejudice in determining whether good
322 F.3d 823, 827 (5th Cir. 2003). Although cause existed to allow a new objection to be pre-
sented at sentencing pursuant to rule 32(i)(1)(D));
the government may have violated rule 32(f)(-
cf. Southwestern Bell Tel. Co. v. City of El Paso,
1) by failing to give timely notice in writing,
346 F.3d 541, 546 (5th Cir. 2003) (stating the test
the court did not abuse its discretion in allow- for considering whether “good cause” has been
ing the government to make its objection at shown in allowing an untimely amendment to
the sentencing hearing, based on the fact that pleading includes consideration of “potential preju-
the government had demonstrated some mea- dice in allowing the amendment”); cf. Effjohn Int’l
sure of “good cause,”10 and the omission Cruise Holdings, Inc., v. A&L Sales, Inc., 346
F.3d 552, 563 (5th Cir. 2003) (considering pre-
judice in determining whether “good cause” exists
for court to set aside entry of default).
10 12
The government presented evidence that con- “The touchstone of rule 32 is reasonable no-
fusion was created over the fact that a different tice” to allow counsel adequately to prepare a
probation officer was assigned to Daniel Angeles- meaningful response and engage in adversary test-
Mendoza and Carron-Espinoza than was assigned ing at sentencing. United States v. Andrews, 390
to Erik Angeles-Mendoza. According to the gov- F.3d 840, 845 (5th Cir. 2004).
ernment, the probation officer assigned to Daniel
13
Angeles-Mendoza and Carron-Espinoza did not United States v. Marmolejo, 89 F.3d 1185,
have an opportunity to review the ledger before 1201 (5th Cir. 1996) (stating that “if the defendant
drafting their PSR, which is the source of the dis- has actual knowledge of the facts on which the
crepancy. (continued...)

6
 B. Hernandez that the ledger discovered at the
Defendants argue that the district court stash house had approximately 114 unique
erred in applying the § 2L1.1(b)(2)(C) adjust- names, some of which were names of illegal
ment, because there was insufficient evidence aliens discovered at the residence.14 Although
to demonstrate that more than one hundred defendants correctly point out that fewer than
aliens were involved in the smuggling opera- one hundred of the names included phone
tion. “For sentencing purposes, the district numbers and contact information, the court did
court [could] consider any relevant evidence not commit clear error by crediting Hernan-
‘without regard to its admissibility under the dez’s testimony that the discrepancy was a
rules of evidence applicable at trial, provided result of different authors contributing to
that the information [had] sufficient indicia of different parts of the ledger with varying
reliability to support its probable accuracy.’” recording methods, particularly in light of
United States v. Young, 981 F.2d 180, 185 other evidence demonstrating the expansive
(5th Cir. 1992) (quoting U.S.S.G. § 6A1.3). nature of the smuggling operation.15 Defen-
dants offer an abundance of other theories and
Again, we review the district court’s appli- explanations for the names in the ledger, which
cation of the guidelines de novo and its factual may in fact be correct, but they do not make
findings for clear error. United States v. Ho, the finding, rejecting those theories, clearly
311 F.3d 589, 608 (5th Cir. 2002). “If the dis- erroneous in light of the record as a whole.
trict court’s account of the evidence is plausi-
ble in light of the record when viewed in its en- V.
tirety, the court of appeals may not reverse it
even though convinced that had it been sitting
as the trier of fact, it would have weighed the 14
Ledgers seized at crime scenes can be used as
evidence differently.” United States v. Alfaro,
competent evidence at sentencing hearings. See,
919 F.2d 962, 966 (5th Cir. 1990). e.g., United States v. Garza, 118 F.3d 278, 286
(5th Cir. 1997); United States v. Fierro, 38 F.3d
There is no clear error in the finding that 761, 774 (5th Cir. 1994); United States v. Thomas,
more than one hundred aliens were involved in 12 F.3d 1350, 1369 (5th Cir. 1994).
the smuggling operation. The government
15
presented evidence in the form of Agent There was evidence of another stash house in
Houston, connected to the defendants by eight to
nine other ledgers discovered there referencing one
13
(...continued) of the defendants by name, identification docu-
district court bases an enhancement or a denial of ments of Daniel and Erik Angeles-Mendoza, in-
a reduction, the Sentencing Guidelines themselves cluding a driver’s licence, and shotgun shells
provide notice of the grounds relevant to the pro- matched ballistically to the shotgun recovered at
ceeding sufficient to satisfy the requirements of the stash house. Furthermore, Hernandez testified
Rule 32”) (internal citations omitted), aff’d sub that one of the smuggled aliens in this case heard
nom. United States v. Salinas, 522 U.S. 52 (1997); Daniel Angeles-Mendoza refer to another stash
United States v. Knight, 76 F.3d 86, 88 (5th Cir. house they operated. The PSR includes other evi-
1996) (holding that sufficient notice exists for dence of the extensiveness of the operation, in-
upward enhancements for factors presently in the cluding reference to an admission by another in-
guidelines to allow average defense counsel ade- dividual that he had transported six loads of aliens,
quately to prepare for sentencing). including four of them to the Austin stash house.

7
 Daniel Angeles-Mendoza and Ceron-
Espinoza object to the district court’s applica-
tion of a two-level adjustment made on the 17
(...continued)
basis that the “offense involved intentionally or Martinez, 273 F.3d 903, 916 (9th Cir. 2001)
recklessly creating a substantial risk of death (“[P]utting twenty people in a dilapidated van with-
or serious bodily injury to another person . . . out seats or seat belts undoubtedly constitutes
.” U.S.S.G. § 2L1.1(b)(5). Reckless conduct ‘carrying substantially more passengers than the
to which the adjustment applies includes “a rated capacity of a motor vehicle’ . . ., or harboring
wide variety of conduct (e.g. transporting persons in a crowded, dangerous or inhumane
condition.”; affirming enhancement under § 2L1.1-
persons in the trunk or engine compartment of
(b)(5)); United States v. Angwin, 271 F.3d 786,
a motor vehicle, carrying substantially more
808-09 (9th Cir. 2001) (holding that district court
passengers than the rated capacity of a motor did not abuse its discretion in applying § 2L1.1-
vehicle or vessel, or harboring persons in a (b)(5) where there were sixteen people in motor
crowded, dangerous, or inhumane condition).” home rated for six people, aliens were crowded into
U.S.S.G. § 2L1.1, cmt. n.6. small compartments, and none of them were seated
or wearing a seat belt); United States v. Ortiz, 242
In light of the record as a whole, the court F.3d 1078, 1078-79 (8th Cir. 2001) (stating that
did not commit clear error in its findings that district court did not clearly err in applying
defendants smuggled aliens in the back of their § 2L1.1(b)(5) where defendant transported 23
truck and modified the vehicle to allow more illegal aliens in van designed to accommodate 14
smuggled aliens to fit in by removing the back people, there were not enough seat belts, and the
seats.16 The court did not err in applying a § van overturned, injuring the passengers); United
2L1.1(b)(5) adjustment, because United States States v. Rio-Baena, 247 F.3d 722, 723 (8th Cir.
2001) (finding no clear error in applying
v. Cuyler, 298 F.3d 387 (5th Cir. 2002),
§ 2L1.1(b)(5) where defendant crowded 21 illegal
dictates that the adjustment is appropriate
aliens into back of cargo van without seats or seat
where the smuggled aliens are transported in belts)).
the bed of a pickup truck.17
The defendants claim that Cuyler is inapplica-
ble because it requires a finding that the truck was
16 being operated at highway speeds, but that argu-
According to several witnesses, aliens were
placed in the bed of the truck and covered with a ment is unconvincing. Over the long distances that
tarp or a “heavy rubber cover,” and the cab of the the aliens were transported in this operation, there
truck was overcrowded, at times carrying as many existed the similar, substantial risk that the aliens
as ten people. Additionally, the PSR indicated that might “be thrown from the bed of the pickup in the
the organization removed the passenger seats to event of an accident or other driving maneuver of
make the vehicles “compatible for the transporta- the sort.” Cuyler, 298 F.3d at 391. Defendants’
tion of more people,” and the vehicle found at the argument that a higher level of dangerousness
Austin stash house was so modified. needs to be demonstrated to apply the enhance-
mentSSthat there needed to be evidence that the
17
Cuyler did not deal with the issue of modify- individuals would suffer from oxygen deprivation
ing vehicles to allow extra passengers to fit, but it or have trouble extricating themselves from the
approvingly cited cases from other circuits that vehicle based on United States v. Dixon, 201 F.3d
were more on point for that aspect of this case. 1223 (9th Cir. 2000)SSwas explicitly rejected in
See id. at 390-91 (citing United States v. Ramirez- Cuyler. See Cuyler, 298 F.3d at 389-90 (rejecting
(continued...) (continued...)

8
 VI.
Daniel Angeles-Mendoza argues that the Daniel Angeles-Mendoza and Ceron-
adjustment should not apply to him, because Espinoza object to the application of a two-
his only connection to the modified truck was level adjustment pursuant to U.S.S.G. § 3A1.-
that it was parked outside the house where he 3, which authorizes such an enhancement “[i]f
was arrested. In granting sentencing adjust- a victim was physically restrained in the course
ments, however, the district court is not lim- of the offense.” According to the application
ited to considering acts of a particular defen- notes, the definition of “physical restraint” for
dant, but may also consider “all reasonably purposes of the adjustment is found in § 1B1.1
foreseeable acts and omissions of others in and reads: “‘Physically restrained’ means the
furtherance of the jointly taken criminal activ- forcible restraint of the victim such as by being
ity,” irrespective of whether it was actually tied, bound, or locked up.” U.S.S.G. §§
charged as a conspiracy. U.S.S.G. § 1B1.3(a)- 1B1.1, 3A1.3, cmt. n.1(h).
(1)(B).18 Although it was Erik Angeles-Men-
doza who was identified as the driver of the The record contains ample evidence that
truck, it was not clearly erroneous for the the smuggled aliens were physically restrained;
district court to find that the potentially dan- the factual basis of the guilty pleas established
gerous method in which the aliens were trans- that the door was locked with a deadbolt, the
ported was reasonably foreseeable to Daniel windows were boarded up, and a guard pa-
Angeles-Mendoza, given evidence of his trolled the premises with a shotgun. Further,
proximity to the altered vehicle,19 the fact that the PSR indicates that the aliens had to surren-
his brother was responsible for driving the der their socks and shoes to make escape more
aliens, and evidence of his leadership role difficult, and they were threatened with being
within and extensive knowledge of the organi- shot in the legs if they attempted to escape.
zation.20
Despite the aforementioned findings, defen-
dants argue that the adjustment is inappropri-
17
(...continued)
ate here because the victims supposedly “con-
application of same case, noting that the factors sented” to the restraint; there is evidence that
highlighted in Dixon “do not limit the guideline”). the aliens were awareSSfrom before the time
when they agreed to be smuggledSSthat they
18
See also United States v. Morris, 46 F.3d would not be permitted to leave the stash
410, 422 (5th Cir. 1995). house until payment was received. The fact
that they needed to be kept in check by physi-
19
The modified truck was found outside the cal barriers and threats of force belies, how-
stash house where Daniel Angeles-Mendoza was ever, any contention that they continued to
arrested, and evidence indicated he handled the consent to be kept at the stash house. Their
aliens when they were dropped off there.
freedom to move where they wished was
20
Daniel Angeles-Mendoza worked as the “en- forcibly curtailed, and they were thus “physi-
forcer” at the Austin stash house. Additionally, cally restrained” under the plain meaning of
there were indications that he knew the expansive-
ness of the organization; he admitted knowledge of
20
another stash house, and his identification was (...continued)
(continued...) found at a similar Houston site.

9
the guidelines.21 entitled to the adjustment as a matter of right;
in connection with a plea, the court is in-
Defendants also argue that the application structed to consider whether defendant truth-
of the enhancement is inappropriate double fully admitted the conduct comprising the
counting because the offense level was also offense, including additional relevant conduct
increased for brandishing a firearm. This for which he is responsible.23 We review the
argument is without merit, because double sentencing court’s determination of acceptance
counting “is impermissible only where the of responsibility with even more deference that
guidelines at issue prohibit it,” and § 3A1.3 is due under a clearly erroneous standard
does not prohibit double counting.22 The because the sentencing judge is in a unique
district court did not commit error, and cer- position to assess the defendant’s acceptance
tainly not clear error, in finding that the aliens of responsibility and true remorse.24
were physically restrained because of how they
were confined at the stash house, making the The court was within its discretion in
upward adjustment proper under § 3A1.3. adopting the probation officer’s finding that
Ceron-Espinoza did not adequately accept re-
VII. sponsibility because of contradictory state-
Ceron-Espinoza argues that the district ments that he made before the court at various
court erred in refusing to grant him a down- stages, leading up to his plea of guilty. The
ward adjustment for acceptance of responsibil- record indicates that at one point he asserted
ity under U.S.S.G. § 3E1.1, which states that that he was merely a smuggled alien himself
“[i]f the defendant clearly demonstrates accep- who was forced to work in the kitchen to pay
tance of responsibility for his offense,” his his transport fee, yet evidence demonstrated
offense level is decreased by two levels. A that he was actively involved in confining the
defendant who enters a guilty plea is not smuggled aliens by threatening to shoot them
or break t heir legs if they tried to escape.
Additionally, he initially denied that he had
21
In other contexts, we have found that the ever possessed the recovered shotgun, but
initial acquiescence of a victim does nor foreclose later he admitted to it.
a finding that he is a hostage where force is later
used to seize or confine him. Cf. Carrion-Caliz, Although Ceron-Espinoza pleaded guilty,
944 F.2d at 225-26 (applying the Hostage Taking the district court was within its bounds of
Act). discretion to conclude that he was trying to
22
misrepresent facts to minimize his role in the
United States v. Gaytan, 74 F.3d 545, 560
(5th Cir. 1996); U.S.S.G. § 3A1.3. The applica-
tion notes to § 3A1.3 only dictate that the adjust-
ment is inapplicable “where the offense guideline 23
See U.S.S.G. § 3E1.1, cmt. n.3; see also
specifically incorporates this factor, or where the United States v. Pierce, 237 F.3d 693, 694 (5th
unlawful restraint of a victim is an element of the Cir. 2001).
offense itself.” U.S.S.G. § 3A1.3, cmt. n.2. The
24
specific offense guideline applicable in this case, See U.S.S.G., § 3E1.1, cmt. n.5.; see also
§ 2L1.1, does not specifically incorporate the ele- United States v. Nguyen, 190 F.3d 656, 659 (5th
ment of physical restraint, so that limitation is in- Cir. 1999); United States v. Rodriguez, 942 F.2d
applicable. 899, 902-03 (5th Cir. 1991).

10
offense. Under these circumstances, particu- ward adjustment under § 3B1.2. Although
larly under our extremely deferential standard Ceron-Espinoza correctly points to the testi-
of review, the court committed no reversible mony of several witnesses who indicated that
error in deciding that Ceron-Espinoza had they only knew him to cook and clean around
insufficiently accepted responsibility to deserve the stash house, there was competent evidence
a downward adjustment under § 3E1.1. on the record that he was the enforcer at the
site; that he was one of three individuals in
VIII. charge of the stash house, at times wielding
Ceron-Espinoza argues that the district the shotgun and issuing threats to the detained
court erred in denying him a reduction in his aliens.
offense level based on having a mitigating role
in the offense, pursuant to U.S.S.G. § 3B1.2, Other evidence showed that Ceron-Espino-
which pro vides for a four-level reduction if za had knowledge of the scope and structure
the defendant is a “minimal participant,” and a of the enterprise, in that he knew of how the
two-level reduction if he is a “minor partici- aliens were smuggled and detained until pay-
pant.” A “minimal participant” is one who is ment was received for their transport. Even if
“plainly among the least culpable of those Ceron-Espinoza played a relatively smaller role
involved in the conduct of a group,” and who in the offense as compared to his other co-
demonstrates a lack of knowledge or under- defendants, viewing the records as a whole the
standing of the scope and structure of the en- district court did not commit clear error in
terprise. § 3B1.2, cmt. n.4. A “minor partici- finding that he played a significant role, such
pant” is one who is “less culpable than most that he was an average participant and not
other participants, but one whose role could deserving of a downward adjustment based on
not be described as minimal.” § 3B1.2, cmt. § 3B1.2.
n.5.
IX.
A defendant has the burden of showing that The defendants argue that under Booker,
he is entitled to the adjustment, and to qualify their sentences violate their Sixth Amendment
he must demonstrate that he is “substantially right to findings by a jury, because the district
less culpable than the average participant.”25 court assessed sentencing enhancements under
The determination of the applicability of this the then-mandatory sentencing guidelines,
downward adjustment is a question of fact that based on facts that were neither admitted by
we review for clear error. See United States v. them nor found by a jury beyond a reasonable
Virgen-Moreno, 265 F.3d 276, 296 (5th Cir. doubt As we have explained, the district court
2001). did not properly calculate the vulnerable victim
adjustment, § 3A1.1(b)(1). Even though
The district court was not clearly erroneous Booker renders the guidelines advisory, a
in finding that Ceron-Espinoza was an average sentencing court must first arrive at the proper
participant and thus not deserving of a down- guideline calculation before deciding which
sentence to impose.26

25
United States v. Garcia, 242 F.3d 593, 598
26
(5th Cir. 2001) (quoting U.S.S.G. § 3B1.2, cmt. See supra note 3. The sentences here are
n.3(A)). (continued...)

11
 Moreover, as we noted in Villegas, 2005
U.S. App. LEXIS 4517, at *15, Booker did
not invalidate 18 U.S.C. § 3742(f)(1), which
still provides:

If the court of appeals determines that . . .
the sentence was imposed in violation of
law or imposed as a result of an incorrect
application of the sentencing guidelines, the
court shall remand the case for further
sentencing proceedings with such instruc-
tions as the court considers appropriate.

Because the sentences in the instant case were
applied when the guidelines were deemed
mandatory, there is no doubt that the
sentences were imposed as a result of an
incorrect application of § 3A1.1. We must
therefore remand for resentencing.27

The judgments of sentence are VACATED,
and these matters are REMANDED for further
proceedings in accordance with this opinion
and with Booker, Mares, and their progeny.

26
(...continued)
what, according to Mares, are now termed []
“‘non-Guideline’ sentence[s] to distinguish [them]
from [] Guidelines sentence[s] which include[]
[sentences that have] been adjusted by applying a
‘departure’ as allowed by the Guidelines.” Mares,
402 F.3d at 519 n.7.
27
Daniel Angeles-Mendoza also argues that
Booker requires that his sentence be vacated and
remanded, although he concedes that we would re-
view this for plain error, since he failed to object
on Sixth Amendment grounds. We do not consider
this issue, because we have already determined that
his sentence needs to be vacated based on the fact
that the district court improperly assessed the
defendant a vulnerable victim adjustment under
§ 3A1.1.

12