United States v. Jean Carlo Ferreira

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
No. 00-14723 ELEVENTH CIRCUIT
________________________ DECEMBER 11, 2001
THOMAS K. KAHN
D. C. Docket No. 00-00001-CR-JAL CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEAN CARLO FERREIRA,
PEDRO RAFAEL CARABALLO-MARTINEZ,
et al.,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________
(December 11, 2001)

Before HULL, MARCUS and FARRIS*, Circuit Judges.

MARCUS, Circuit Judge:

*
Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
In December 1999, Christina Aragao and her two children were abducted

and held hostage for several days before being freed by police. For their roles in

the kidnapping, appellants Jean Carlo Ferreira, Pedro Rafael Caraballo-Martinez,

and Ewin Oscar Martinez were convicted of hostage taking and conspiracy to

commit hostage taking in violation of the Hostage Taking Act, 18 U.S.C. § 1203,

carjacking and conspiracy to commit carjacking in violation of 18 U.S.C. §§ 371,

2119(2), and for using and carrying a firearm during and in relation to a crime of

violence in violation of 18 U.S.C. § 924(c). Each was sentenced to life in prison.

In this appeal, they raise three significant challenges to their convictions and

sentences -- that the Hostage Taking Act is unconstitutional because it

discriminates impermissibly on the basis of alienage and that Congress lacked the

power to enact it; that Congress likewise lacked the power to enact the firearms

statute; and, finally, that the district court erred in applying a six-level

enhancement pursuant to U.S.S.G. § 2A4.1(b)(1) because a ransom note was never

delivered. We are unpersuaded by those arguments and, accordingly, affirm.1

1
Several additional challenges were raised by appellants in their briefs and at oral
argument. Specifically, they argue that the district court erred by:

(1) denying Caraballo-Martinez’s motion to suppress his post-arrest statement;
(2) denying their motion for acquittal on the carjacking charge;
(3) denying Ferreira’s motion for substitution of counsel;
(4) failing to instruct the jury that alienage is an element of conviction under the Hostage
Taking Act which must be proven beyond a reasonable doubt;

2
I.

As they are relevant to the appeal, the following facts were established at

trial and during the sentencing proceedings. On December 13, 1999, Christina

Aragao and her two children, Alceu Aragao, Jr. (“Junior”), age nine, and

Alexander Aragao, age one, were attacked by three men in a parking garage near

their condominium home in Aventura, Florida. Mrs. Aragao was shocked

repeatedly with stun guns. The electric shocks caused her to drop her baby to the

floor of the garage. She screamed loudly and was struck in her face five or six

times by one of the attackers. Junior attempted to flee but was shot in the head and

neck with a stun gun and caught by another of the attackers. The Aragaos then

were forced into one of the family’s cars, a Lincoln Navigator SUV, to which the

attackers had previously obtained keys, and driven to a house approximately fifteen

minutes away.

(5) determining that it was reasonably foreseeable that firearms would be used or carried
during the course of the conspiracy;
(6) sentencing the appellants based on three groups of offenses related to the three
victims, rather than based on one inclusive conspiracy;
(7) enhancing the appellants’ offense levels based on a conclusion that Christina Aragao
was a vulnerable victim pursuant to U.S.S.G. § 3A1.1;
(8) enhancing Ferreira’s sentence pursuant to U.S.S.G. § 2A4.1(b)(2) based on the
injuries suffered by the victims; and
(9) enhancing Martinez’s offense level pursuant to U.S.S.G. § 3B1.1(a) because he was
the leader of the conspiracy.

We have reviewed these contentions and find no merit in any of them.

3
Inside the house, the attackers tied Mrs. Aragao’s hands and legs to a chair

and placed her in a closet. They did the same to Junior and placed him in a

different closet. The baby was kept in another room. The next day, Mrs. Aragao

and Junior were removed from the closet and required to stay in shuttered rooms.

Mrs. Arago was permitted to care for the baby, but because her arm was still numb

from the electric shocks, she was unable to lift or change him. When their captors

left the house, Mrs. Arago and Junior once again were tied to chairs and put into

closets. At night, Junior was forced to sleep in his underwear in a bed with

Martinez.

The Aragaos were held captive in the North Miami house for four and one-

half days. During that time, Mrs. Aragao was required to use her cellular phone to

make a series of calls to her husband, a successful businessman, requesting that he

meet with Martinez. Each time, Martinez dictated what she was to say. When the

phone calls did not result in a meeting, Martinez required Mrs. Aragao to type a

letter that he dictated requesting a meeting with Mr. Aragao. The letter was mailed

to Ipanema Enterprises, the company owned by Mr. Aragao.

By tracing one of the cellular phone calls, the FBI was able to locate the

house at which the Aragaos were being held captive, and the family was rescued on

the morning of December 18, 1999. Martinez and Caraballo-Martinez were

4
arrested at that time. Among other evidence in the house, the police found a torn

letter addressed to Mr. Aragao in a trash can. When reconstructed, the letter stated

that if Mr. Aragao did not turn over all of his money, he and his family would be

killed. An identical letter was found in a file on Martinez’s laptop computer.

At trial, Mrs. Aragao and Junior identified Martinez and Caraballo-Martinez

as two of the three men who abducted them. Ferreira was not identified as the third

abductor. Rather, he was the parking lot attendant at the Aragao’s condominium

complex and had provided the keys to the Aragao’s Lincoln Navigator.

Additionally, Junior testified that Ferreira had asked him about the family’s plans

for the evening of the abduction. Telephone records showed that during the time

the Aragao’s were held captive, a cellular phone registered to Ferreira made 22

calls to a cellular phone registered to Martinez and found in the North Miami

house.2

A grand jury indicted Martinez, Caraballo-Martinez, and Ferreira for

violating the Hostage Taking Act, carjacking, and using a firearm during a crime of

violence. Martinez also was charged with knowingly possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The child pornography

2
After their arrests, both Martinez and Caraballo-Martinez made statements to police
without the benefit of counsel. Prior to trial, Caraballo moved to suppress his statement. That
motion was denied, and this Court has found no error in the district court’s ruling.

5
count was severed, and the three appellants were tried jointly. The trial ended on

June 2, 2000, and the jury found the appellants guilty on the remaining counts.

In the presentence investigation report (PSI), the offenses were grouped into

three categories based on the three victims, and a base offense level of 24 was

determined for the abduction. The PSI recommended enhancements on the

grounds that the children were vulnerable victims, that Mrs. Aragao and Junior

suffered serious, permanent, or life-threatening bodily injuries, that a dangerous

weapon was used, and that the appellants obstructed justice by lying at trial. See

U.S.S.G. §§ 2A4.1(b)(2), 2A4.1(b)(3), 3A1.1(b)(1), 3C1.1.3 Additionally, the PSI

recommended a six-level enhancement for each appellant pursuant to U.S.S.G. §

2A4.1(b)(1) because a ransom demand was made. The district judge adopted each

of the recommendations,4 and sentenced each defendant to life imprisonment for

Counts I and II, 60 months for Count III, and 300 months for Count IV, to be

served concurrently, and a consecutive term of 60 months for Count V.

II.

3
Martinez also received a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) for his
leadership role and a three-level enhancement pursuant to U.S.S.G. § 2A4.1(b)(5) for sexually
exploiting Junior.
4
The PSI did not recommend a two-level enhancement based on Mrs. Aragao’s status as a
vulnerable victim. After the sentencing hearing, the district judge agreed with the government’s
contention that such an enhancement was appropriate, and imposed it for each appellant.

6
We review de novo appellants’ challenges to the Hostage Taking Act and to

the firearms statute. See United States v. Gray, 260 F.3d 1267, 1271 (11th Cir.

2001) (citations omitted) (reviewing de novo a challenge to the constitutionality of

a criminal statute). A challenge to the application of the sentencing guideline is a

mixed question of law and fact. We review the district court’s findings of fact for

clear error and its application of the sentencing guidelines to those facts de novo.

United States v. Jamieson, 202 F.3d 1293, 1295 (11th Cir. 2000). Moreover,

“[i]nterpretation of the Sentencing Guidelines is similar to statutory interpretation

and is subject to de novo review on appeal.” United States v. Goolsby, 908 F.2d

861, 863 (11th Cir. 1990).

Each of the appellants was convicted of conspiracy to commit hostage taking

and hostage taking in violation of the Hostage Taking Act, 18 U.S.C. § 1203. In

relevant part, that provision states that:

(a) Except as provided in subsection (b) of this section, whoever,
whether inside or outside the United States, seizes or detains and
threatens to kill, to injure, or to continue to detain another person in
order to compel a third person or a governmental organization to do or
abstain from doing any act as an explicit or implicit condition for the
release of the person detained, or attempts or conspires to do so, shall
be punished by imprisonment for any term of years or for life and, if
the death of any person results, shall be punished by death or life
imprisonment.

7
(b)(1) It is not an offense under this section if the conduct required for
the offense occurred outside the United States unless --
(A) the offender or the person seized or detained is a national of
the United States;
(B) the offender is found in the United States; or
(C) the governmental organization sought to be compelled is the
Government of the United States.

(2) It is not an offense under this section if the conduct required for
the offense occurred inside the United States, each alleged offender
and each person seized or detained are nationals of the United States,
and each alleged offender is found in the United States, unless the
governmental organization sought to be compelled is the Government
of the United States.

18 U.S.C. § 1203.

Initially, appellants say that the Hostage Taking Act violates their Fifth

Amendment right to equal protection by discriminating impermissibly on the basis

of alienage. The government concedes that the Act “by its own terms applies only

to aliens and, consequently, treats aliens differently than United States citizens,”

(Gov’t Br. at 25),5 but disagrees that the classification is unconstitutional.

Appellants’ argument is grounded on the erroneous foundation that

congressional classifications based on alienage are subject to strict scrutiny. While

it is true that strict scrutiny applies to state classifications of aliens, we have held

expressly that congressional classifications based on alienage are subject to rational

5
Specifically, “[i]f the victim is a national and the United States government is not the
party to be compelled, the statute criminalizes conduct by an alien that would not be subject to
federal prosecution if undertaken by a United States citizen.” (Gov’t Br. at 25.)

8
basis review. See Rodriguez v. United States, 169 F.3d 1342, 1347 (11th Cir.

1999); Tefel v. Reno, 180 F.3d 1286, 1298-99 (11th Cir. 1999); Yeung v. I.N.S.,

76 F.3d 337, 339 (11th Cir. 1996). In other words, Congress can pass laws

regulating the conduct of non-citizens within the United States, and those laws do

not violate equal protection so long as they are rationally related to a legitimate

government interest. The reasons behind the dichotomy between federal and state

authority lie in Congress’s “broad power over naturalization and immigration,”

which enables the Congress, not the states, to make rules applicable to aliens that

“would be unacceptable if applied to citizens.” Matthews v. Diaz, 426 U.S. 67, 79-

80, 96 S. Ct. 1883, 1891 (1976). As the Supreme Court explained:

For reasons long recognized as valid, the responsibility for regulating
the relationship between the United States and our alien visitors has
been committed to the political branches of the Federal Government.
Since decisions in these matters may implicate our relations with
foreign powers, and since a wide variety of classifications must be
defined in the light of changing political and economic circumstances,
such decisions are frequently of a character more appropriate to either
the Legislature or the Executive than to the Judiciary.

Id. at 81, 96 S. Ct. at 1892. Accordingly, the Court found that “decisions made by

the Congress or the President in the area of immigration and naturalization” are

subject to “a narrow standard of review” that is equivalent to rational basis

scrutiny. Id. at 82, 96 S. Ct. at 1892. See also Rodriguez, 169 F.3d at 1347.

9
Appellants’ efforts to avoid this conclusion and distinguish these cases are

unpersuasive. The majority of the cases they cite apply strict scrutiny to state laws

and, therefore, are plainly inapplicable in this context. See, e.g., Graham v.

Richardson, 403 U.S. 365, 371-72, 91 S. Ct. 1848, 1851-52 (1971) (applying strict

scrutiny to a state law classification based on alienage). Appellants also attempt to

distinguish Rodriguez and Matthews on the grounds that the law at issue in this

case is criminal rather than civil and that those cases were based on Congress’s

special authority over aliens with respect to immigration and naturalization matters

and not to classifications of aliens more generally. They do not, however, provide

any case law or rationale to support those arguments, and we are not persuaded by

them. The Supreme Court did not limit its holding in Matthews to civil cases, and

we can find no persuasive reason to do so in this case. Moreover, the Court’s

language in Matthews is applicable to congressional classifications of aliens

generally and not simply to its classification of aliens during the immigration or

naturalization process. See Matthews, 426 U.S. at 80, 96 S. Ct. at 1891 (“The fact

that an Act of Congress treats aliens differently from citizens does not in itself

imply that such disparate treatment is ‘invidious.’”).

We agree with every other circuit court of appeals that has confronted this

issue, and apply rational basis review to the statute. See United States v.

10
Montenegro, 231 F.3d 389, 395 (7th Cir. 2000) (concluding that the Hostage

Taking Act survives rational basis review); United States v. Santos-Riviera, 183

F.3d 367, 373 (5th Cir. 1999) (rejecting the contention that the Hostage Taking Act

should be reviewed using strict scrutiny); United States v. Lue, 134 F.3d 79, 87 (2d

Cir. 1998) (“As long as the Hostage Taking Act is rationally related to a legitimate

government interest it satisfies principles of equal protection in this context.”);

United States v. Lopez-Flores, 63 F.3d 1468, 1473-74 (9th Cir. 1995) (“The same

principles that animate both the Constitution’s grant of plenary control over

immigration legislation to Congress and the attendant low level of judicial review

of such legislation dictate a similarly low level of review here, where foreign

policy interests are strongly implicated.”).

Accordingly, the Hostage Taking Act is a valid exercise of congressional

authority so long as it is “rationally related to the achievement of a legitimate

government purpose.” Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir.

2000) (citation omitted), cert. denied, 121 S. Ct. 1616 (2001). We apply a two-step

analysis in determining whether that standard is met:

The first step in determining whether legislation survives rational-
basis scrutiny is identifying a legitimate government purpose -- a goal
-- which the enacting government body could have been pursuing.
The actual motivations of the enacting governmental body are entirely
irrelevant. . . . The second step of rational-basis scrutiny asks whether
a rational basis exists for the enacting governmental body to believe

11
that the legislation would further the hypothesized purpose. The
proper inquiry is concerned with the existence of a conceivably
rational basis, not whether that basis was actually considered by the
legislative body. As long as reasons for the legislative classification
may have been considered to be true, and the relationship between the
classification and the goal is not so attenuated as to render the
distinction arbitrary or irrational, the legislation survives rational-
basis scrutiny.
Id. at 1358 (quoting Haves v. City of Miami, 52 F.3d 918, 921-22 (11th Cir. 1995))

(emphasis in original).

The first of those requirements -- a legitimate government purpose -- is

easily satisfied because Congress passed the Hostage Taking Act to implement the

International Convention Against the Taking of Hostages, Dec. 18, 1979, T.I.A.S.,

No. 11,081 (“Convention”). Thus, as the Second Circuit noted, the purpose of the

Act is “to address a matter of grave concern to the international community:

hostage taking as a manifestation of international terrorism.” Lue, 134 F.3d at 87.

Indeed the wording of the Act tracks precisely the language of the Convention.

See Convention, art. I, II (requiring the implementing country to make “seiz[ing]

or detain[ing] and threaten[ing] to kill, to injure or to continue to detain another

person . . . in order to compel a third party, namely, a State, an international

intergovernmental organization, a natural or juridical person, or a group of persons,

to do or abstain from doing any act . . . punishable by appropriate penalties”).

12
Second, although, as appellants point out, there are state laws designed to

combat domestic terrorism, Congress enacted the Act because it believed that

kidnapping involving foreign nationals has serious international ramifications,

which are Congress’s unique responsibility. Thus, the second prong is met

because, as the Second Circuit held,

Congress rationally concluded that a hostage taking within our
jurisdiction involving a noncitizen is sufficiently likely to involve
matters implicating foreign policy or immigration concerns as to
warrant a federal criminal proscription. The connection between the
act and its purpose is not so attenuated as to fail to meet the rational-
basis standard.

Id. Accordingly, we agree with all of the other circuits to have confronted the

issue that the Hostage Taking Act is rationally related to a legitimate government

interest. See id.; Montenegro, 231 F.3d at 395 (adopting the holding of Lue);

Santos-Riviera, 183 F.3d at 373 (same); Lopez-Flores, 63 F.3d at 1475.

Appellants also suggest that Congress lacked the authority under any of its

constitutionally enumerated powers to enact the Hostage Taking Act, whether that

power derives from the Commerce Clause, the Law of Nations Clause, or from its

broad power to regulate immigration and naturalization. Those arguments,

however, are misplaced. The Hostage Taking Act was passed in order to

implement the International Convention Against the Taking of Hostages, and thus

congressional authority may be found in the Necessary and Proper Clause.

13
The Necessary and Proper Clause provides that “Congress shall have Power

. . . [t]o make all Laws which shall be necessary and proper for carrying into

Execution the foregoing powers, and all other Powers vested by this Constitution

in the Government of the United States, or in any Department or Officer thereof.”

U.S. Const., art I, § 8. As the Second Circuit noted in Lue, because “Congress’s

authority under the Necessary and Proper Clause extends beyond those powers

specifically enumerated in Article I, section 8[, it] may enact laws necessary to

effectuate the treaty power, enumerated in Article II of the Constitution.” Lue, 134

F.3d at 82 (citing Missouri v. Holland, 252 U.S. 416, 432, 40 S. Ct. 382, 383

(1920); Neely v. Henkel, 180 U.S. 109, 121, 21 S. Ct. 302, 306 (1901)). Thus,

“[i]f the Hostage Taking Convention is a valid exercise of the Executive’s treaty

power, there is little room to dispute that the legislation passed to effectuate the

treaty is valid under the Necessary and Proper Clause.” Id. at 84 (citing Holland,

252 U.S. at 432, 40 S. Ct. at 383, for the proposition that, under normal

circumstances, “[i]f the treaty is valid there can be no dispute about the validity of

[a] statute [passed] under Article I, Section 8, as a necessary and proper means to

execute the powers of the Government”).

We agree with the Second Circuit’s analysis and conclusion that “the

Hostage Taking Convention is well within the boundaries of the Constitution’s

14
treaty power,” id. at 83, and similarly conclude that Congress had authority under

the Necessary and Proper Clause to enact the Hostage Taking Act.

In addition to being found guilty of the hostage taking and carjacking

counts, each appellant was convicted under the firearms statute making it a federal

crime to use and carry a firearm during a crime of violence. See 18 U.S.C. §

924(c) (providing additional penalties for a person “who, during and in relation to

any crime of violence, . . . uses or carries a firearm, or who, in furtherance of any

such crime, possesses a firearm . . ..”). Appellant Caraballo-Martinez argues that

those convictions cannot stand because Congress lacked the power under the

Commerce Clause to enact that provision.

In making that argument, Caraballo-Martinez relies primarily on United

States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). After the Court’s decision

in Lopez, however, we squarely rejected precisely the same argument Caraballo-

Martinez now makes. See United States v. DePace, 120 F.3d 233, 235 n.2 (11th

Cir. 1997) (agreeing with those courts that have rejected the idea “that 18 U.S.C. §

924(c) is an unconstitutional effort to regulate intrastate, non-economic activity”)

(citing United States v. Brown, 72 F.3d 96, 96-97 (8th Cir.1995); United States v.

15
Leshuk, 65 F.3d 1105, 1111-12 (4th Cir.1995)). We add that nothing in the

Supreme Court’s recent rulings in Jones v. United States, 529 U.S. 848, 120 S. Ct.

1904 (2000), or United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000),

alters that conclusion. Cf. Gray, 260 F.3d at 1270 (concluding that “nothing in

Morrison or Jones alters our previous conclusion that, to convict a defendant for

Hobbs Act robbery, the Government must prove a minimal, but not substantial,

effect on interstate commerce.”) .

Finally, the district court enhanced the appellants’ sentences under U.S.S.G.

§ 2A4.1(b)(1), which provides for a six-level increase “[i]f a ransom demand or

demand upon government was made” in the course of a kidnapping or abduction.

U.S.S.G. § 2A4.1(b)(1). The parties agree that, although a ransom letter was

drafted on Martinez’s computer and was printed, it was never actually delivered to

Mr. Aragao. Appellants Ferreira and Martinez argue, therefore, that the

enhancement was improper because § 2A4.1(b)(1) requires that a ransom demand

“was made.”

The district court rejected that contention, as do we. The district court held

that the guideline language must be read in pari materia with the application notes

accompanying it. Specifically, Application Note Five to § 2A4.1 states that “[i]n
16
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.” U.S.S.G. § 2A4.1, comment. (n.5).

Reading the commentary alongside the guideline language, the district court

concluded that an enhancement is appropriate if it could be determined “with

reasonable certainty” that a ransom demand would have been made but for the

appellants’ capture. The district court then found that the repeated phone calls to

Mr. Aragao together with the torn letter made it “reasonably certain” that the

appellants would have made a ransom demand if doing so had been feasible.

Appellants argue that the district court erred in relying on the application

note in this case because the guideline language plainly requires that the ransom

demand “was made.” In making that argument, they cite our opinion in United

States v. Chastain, 198 F.3d 1338 (11th Cir. 1999), for the proposition that, where

the Guidelines provide for an enhancement based on a completed act, as evidenced

by the use of the past tense, the act must actually have occurred in order for the

enhancement to apply. In Chastain, the defendants attempted to use a private plane

to import narcotics, but the plane crashed before the crime could be executed.

During sentencing, the district court granted a two-level enhancement pursuant to

U.S.S.G. § 2D1.1(b)(2), which is entitled “Unlawful Manufacturing, Importing,

17
Exporting, or Trafficking (Including Possession with Intent to Commit These

Offenses) Attempt or Conspiracy,” and permits the increase “[i]f the defendant

unlawfully imported or exported a controlled substance under circumstances in

which an aircraft other than a regularly scheduled commercial air carrier was used

to import or export the controlled substance.” In granting the two-level

enhancement, the district court relied on the words “attempt or conspiracy” in the

title. Id. at 1353. On appeal, we determined that the language required that the

airplane was “used to import” and, therefore, contemplated a “completed event, an

actual importation.” Id. Accordingly, we found it unnecessary to look to the title

of the guideline to explain what was clear in the text and reversed because there

was no completed importation. Id.

Appellants’ reliance on Chastain, however, is misplaced. In Chastain, there

was no application note supporting U.S.S.G. § 2D1.1(b)(2), the provision at issue

in that case. Had there been an application note, nothing in Chastain suggests that

we would not have considered it. There is a substantial difference between the title

of a guideline provision and commentary or an application note to a guideline

provision. A stated purpose of the commentary is to “interpret the guideline or

explain how it is to be applied.” U.S.S.G. § 1B1.7. See also Stinson v. United

States, 508 U.S. 36, 44, 113 S. Ct. 1913, 1918 (1993) (“[C]ommentary explains the

18
guidelines and provides concrete guidance as to how even unambiguous guidelines

are to be applied in practice.”). There is no such stated purpose for the title, and

we have held that the title of a statutory provision may be useful only when it sheds

light on some ambiguous word or phrase. Adler v. Duval County Sch. Bd., 206

F.3d 1070, 1087 (11th Cir. 1999), vac. on other grounds, 531 U.S. 801, 121 S. Ct.

31, and opinion reinstated, 250 F.3d 1330 (11th Cir. 2000), pet. for cert. filed, 70

U.S.L.W. 3147 (U.S. Aug. 08, 2001) (No. 01-287). No restriction is placed on the

use of the application notes and, in fact, exactly the contrary is true -- the guideline

and the commentary must be “read together.” See, e.g., United States v. Pedragh,

225 F.3d 240, 244 (2d Cir. 2000) (holding that, “since the commentary is part and

parcel of the Sentencing Guidelines Manual and, as the Supreme Court has pointed

out, is written by the same body that is charged with drafting the guidelines, the

two are to be read together”). See also United States v. Gay, 240 F.3d 1222, 1232

(10th Cir. 2001).

Finally, the appellants’ contention that a ransom note must actually have

been delivered is directly contrary to the application note’s requirement that the

court apply any adjustment that can be determined with “reasonable certainty.”

Thus, in order to adopt appellants’ reading of the guideline language, we would be

required to ignore the application note entirely. That, we are unwilling to do.

19
Rather, we conclude that the district court correctly interpreted U.S.S.G. §

2A4.1(b)(1). Because the phone calls to Mr. Aragao coupled with the letter found

in the North Miami house made it “reasonably certain” that the appellants would

have made a ransom demand if doing so had been feasible, the district court

appropriately granted the six-level enhancement.

III.

In sum, we conclude that the Hostage Taking Act does not violate the Equal

Protection Clause, that the codification of that statute and 18 U.S.C. § 924(c) are

valid exercises of congressional authority, and that the district court appropriately

granted a six-level enhancement upon a determination that the appellants intended

to make a ransom demand. Accordingly, we find no error and affirm the

appellants’ convictions and sentences.

AFFIRMED.