United States v. Ceron-Espinoza

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

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2
_______________
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
BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In these consolidated appeals, defendants
challenge adjustments made to their sentencing
ranges under the United States Sentencing
Guidelines.1 Although the district court cor-
rectly decided most of the issues on appeal, it
did err in applying the vulnerable victim adjust-
ment, U.S.S.G. § 3A1.1(b)(1). For this rea-
son, we vacate and remand for resentencing in
light of United States v. Booker, 125 S. Ct.
738 (2005), United States v. Mares, 402 F.3d
511 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517), and their
progeny.
I.
Erik Angeles-Mendoza, Felipe Ceron-
Espinoza, and Daniel Angeles-Mendoza
pleaded guilty to two counts of conspiracy to
smuggle, transport, and harbor illegal aliens, 8
U.S.C. § 1324(a)(1)(A), and a charge of
possession of a firearm by an illegal alien, 18
U.S.C. § 922(g)(5). According to the factual
basis for the guilty pleas, police discovered
twenty-nine illegal aliens, including defendants,
at an Austin stash house. The smuggling
operation picked up illegal aliens in Mexico in
pickup trucks that had been modified by re-
moving the passenger seats to allow them to fit
more aliens inside.
1 All references to the guidelines are to the 2002
version, which were in effect when the criminal
conduct took place.

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3
Once at the stash house, the smuggled
aliens were held until defendants received fees
for the transport. To deter escape, defendants
took the aliens’ shoes and socks, and guarded
them in the boarded-up and locked stash house
with a shotgun. All three defendants were
identified by smuggled aliens to be the “enforc-
ers” at the house who patrolled with the shot-
gun and made calls to the aliens’ relatives to
collect fees.
At sentencing, the district court applied
upward adjustments based on findings that the
smuggling operation involved over one hun-
dred aliens, that a weapon was brandished
during the offense, that the aliens were physi-
cally restrained during the offense, that the
defendants took advantage of the aliens’
vulnerabilities, and that the aliens were reckl-
essly endangered by the methods by which
they were smuggled. The court applied a
downward adjustment for acceptance of re-
sponsibility only to Daniel Angeles-Mendoza,
because it doubted the sincerity of the others
in their guilty pleas. The court also denied
Ceron-Espinoza’s request for a downward ad-
justment based on his claim that he played only
a minimal role in the offense, finding that he
was an average participant in the conspiracy.
The court ultimately sentenced Erik Angeles-
Mendoza to concurrent 108-month terms of
imprisonment and to concurrent three-year
periods of supervised release, and Daniel
Angeles-Mendoza to concurrent 78-month
terms of imprisonment and to concurrent
three-year periods of supervised release.
II.
Defendants bring a variety of challenges to
the method used to calculate their sentencing
ranges under the guidelines. Although the
Court in Booker excised and struck down the
statutory provisions that made the guidelines
mandatory,2 a district court is still required to
calculate the guideline range and consider it
advisory.3 Under Booker, we still review the
district court’s interpretation and application
of the guidelines de novo. United States v.
Villegas, 2005 U.S. App. LEXIS 4517, at *8
(5th Cir. Mar. 17, 2005) (per curiam). We
thus proceed to review each of the challenges
to the district court’s application of the guide-
lines.
III.
Defendants challenge the two-level en-
hancement to their offense level pursuant to
2 Booker, 125 S. Ct. at 764 (opinion of Breyer,
J.) (“[W]e must sever and excise two specific stat-
utory provisions: the provision that requires sente-
ncing courts to impose a sentence within the appli-
cable Guidelines range (in the absence of circum-
stances that justify a departure), see 18 U.S.C.
§3553(b)(1) (Supp. 2004), and the provision that
sets forth standards of review on appeal, including
de novo review of departures from the applicable
Guidelines range, see § 3742(e) (main ed. and
Supp. 2004).”).
3 Id. at 756-57; Mares, 402 F.3d at 518-19
(“Even in the discretionary sentencing system es-
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.”).

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

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5
deserves, taking into account the inherent
nature of the type of offense. The district
court only noted general characteristics com-
monly held by aliens seeking to be illegally
smuggled and failed to mention a characteristic
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.”6 Although
the court may have been correct in noting the
inherent vulnerability of smuggled aliens, we
assume that such a characteristic was ade-
quately taken into account in establishing the
base offense level in U.S.S.G. § 2L1.1.7
The government argues that the level of
vulnerability “exceeded the type of vulnerabil-
ity that might ordinarily accompany smuggling
and harboring aliens” based on the fact that
they were physically restrained until payment
for their transport was received. As we have
noted, however, the holding of aliens pending
payment is not an unusual practice where they
have not paid in advance for their transport.8
Although the physical restraint of the smug-
gled aliens during the commission of the of-
fense may have been appropriately used to
grant an upward enhancement under U.S.S.G.
§ 3A1.3SSthe guidelines provision dealing
specifically with physical restraint of vic-
timsSSthere is no evidence that the aliens in
this case were more unusually vulnerable to
being held captive than would be any other
smuggled alien involved in a violation of
§ 1324.9
IV.
Defendants object to the assessment of a
nine-level enhancement, pursuant to U.S.S.G.
§ 2L1.1(b)(2)(C), based on a finding that the
number of smuggled aliens exceeded one
hundred. This increase was recommended in
Erik Angeles-Mendoza’s Presentence Report
(“PSR”), but not in Daniel Angeles-Mendoza’s
or Carron-Espinoza’s, both of whose PSR’s
recommended only a six-level increase pursu-
ant to U.S.S.G. § 2L1.1(b)(2)(B)SSbased
solely on the twenty-six aliens discovered to be
detained at the stash house.
6 Moree, 897 F.2d at 1335; United States v.
Robinson, 119 F.3d 1205, 1219 (5th Cir. 1997)
(“Application of the vulnerable victim guideline is
limited to cases in which the victims ‘are in need of
greater societal protection’ and the offenses are
thus ‘more criminally depraved than they would be
otherwise.”) (quoting United States v. Castellanos,
81 F.3d 108, 110 (9th Cir. 1996)).
7 This is not to say that the inherent vulnerabil-
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
eligible for the adjustment where the crime is
directed toward aliens to take advantage of their in-
herent vulnerabilities. Cf. United States v.
Amedeo, 370 F.3d 1305, 1317 n.10 (11th Cir.
2004) (applying § 3A1.1 enhancement where de-
fendant raped victim after giving her drugs, where
defendant knew that the victim was a drug addict
from his former legal representation of her; noting
that not every drug addict is a vulnerable victim
under § 3A1.1).
8 See United States v. Patino-Cardenas, 85
F.3d 1133, 1134-35 (5th Cir. 1996); United States
v. Briones-Garza, 680 F.2d 417, 419 (5th Cir.
1982).
9 The district court also may have made its de-
cision to grant the upward enhancement based on
the fact that some of the aliens were minors. There
is no evidence, however, that the youth of some of
them made them especially vulnerable to being
victimized.

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

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7
B.
Defendants argue that the district court
erred in applying the § 2L1.1(b)(2)(C) adjust-
ment, because there was insufficient evidence
to demonstrate that more than one hundred
aliens were involved in the smuggling opera-
tion. “For sentencing purposes, the district
court [could] consider any relevant evidence
‘without regard to its admissibility under the
rules of evidence applicable at trial, provided
that the information [had] sufficient indicia of
reliability to support its probable accuracy.’”
United States v. Young, 981 F.2d 180, 185
(5th Cir. 1992) (quoting U.S.S.G. § 6A1.3).
Again, we review the district court’s appli-
cation of the guidelines de novo and its factual
findings for clear error. United States v. Ho,
311 F.3d 589, 608 (5th Cir. 2002). “If the dis-
trict court’s account of the evidence is plausi-
ble in light of the record when viewed in its en-
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
evidence differently.” United States v. Alfaro,
919 F.2d 962, 966 (5th Cir. 1990).
There is no clear error in the finding that
more than one hundred aliens were involved in
the smuggling operation. The government
presented evidence in the form of Agent
Hernandez that the ledger discovered at the
stash house had approximately 114 unique
names, some of which were names of illegal
aliens discovered at the residence.14 Although
defendants correctly point out that fewer than
one hundred of the names included phone
numbers and contact information, the court did
not commit clear error by crediting Hernan-
dez’s testimony that the discrepancy was a
result of different authors contributing to
different parts of the ledger with varying
recording methods, particularly in light of
other evidence demonstrating the expansive
nature of the smuggling operation.15 Defen-
dants offer an abundance of other theories and
explanations for the names in the ledger, which
may in fact be correct, but they do not make
the finding, rejecting those theories, clearly
erroneous in light of the record as a whole.
V.
13(...continued)
district court bases an enhancement or a denial of
a reduction, the Sentencing Guidelines themselves
provide notice of the grounds relevant to the pro-
ceeding sufficient to satisfy the requirements of
Rule 32”) (internal citations omitted), aff’d sub
nom. United States v. Salinas, 522 U.S. 52 (1997);
United States v. Knight, 76 F.3d 86, 88 (5th Cir.
1996) (holding that sufficient notice exists for
upward enhancements for factors presently in the
guidelines to allow average defense counsel ade-
quately to prepare for sentencing).
14 Ledgers seized at crime scenes can be used as
competent evidence at sentencing hearings. See,
e.g., United States v. Garza, 118 F.3d 278, 286
(5th Cir. 1997); United States v. Fierro, 38 F.3d
761, 774 (5th Cir. 1994); United States v. Thomas,
12 F.3d 1350, 1369 (5th Cir. 1994).
15 There was evidence of another stash house in
Houston, connected to the defendants by eight to
nine other ledgers discovered there referencing one
of the defendants by name, identification docu-
ments of Daniel and Erik Angeles-Mendoza, in-
cluding a driver’s licence, and shotgun shells
matched ballistically to the shotgun recovered at
the stash house. Furthermore, Hernandez testified
that one of the smuggled aliens in this case heard
Daniel Angeles-Mendoza refer to another stash
house they operated. The PSR includes other evi-
dence of the extensiveness of the operation, in-
cluding reference to an admission by another in-
dividual that he had transported six loads of aliens,
including four of them to the Austin stash house.

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

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9
Daniel Angeles-Mendoza argues that the
adjustment should not apply to him, because
his only connection to the modified truck was
that it was parked outside the house where he
was arrested. In granting sentencing adjust-
ments, however, the district court is not lim-
ited to considering acts of a particular defen-
dant, but may also consider “all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly taken criminal activ-
ity,” irrespective of whether it was actually
charged as a conspiracy. U.S.S.G. § 1B1.3(a)-
(1)(B).18 Although it was Erik Angeles-Men-
doza who was identified as the driver of the
truck, it was not clearly erroneous for the
district court to find that the potentially dan-
gerous method in which the aliens were trans-
ported was reasonably foreseeable to Daniel
Angeles-Mendoza, given evidence of his
proximity to the altered vehicle,19 the fact that
his brother was responsible for driving the
aliens, and evidence of his leadership role
within and extensive knowledge of the organi-
zation.20
VI.
Daniel Angeles-Mendoza and Ceron-
Espinoza object to the application of a two-
level adjustment pursuant to U.S.S.G. § 3A1.-
3, which authorizes such an enhancement “[i]f
a victim was physically restrained in the course
of the offense.” According to the application
notes, the definition of “physical restraint” for
purposes of the adjustment is found in § 1B1.1
and reads: “‘Physically restrained’ means the
forcible restraint of the victim such as by being
tied, bound, or locked up.” U.S.S.G. §§
1B1.1, 3A1.3, cmt. n.1(h).
The record contains ample evidence that
the smuggled aliens were physically restrained;
the factual basis of the guilty pleas established
that the door was locked with a deadbolt, the
windows were boarded up, and a guard pa-
trolled the premises with a shotgun. Further,
the PSR indicates that the aliens had to surren-
der their socks and shoes to make escape more
difficult, and they were threatened with being
shot in the legs if they attempted to escape.
Despite the aforementioned findings, defen-
dants argue that the adjustment is inappropri-
ate here because the victims supposedly “con-
sented” to the restraint; there is evidence that
the aliens were awareSSfrom before the time
when they agreed to be smuggledSSthat they
would not be permitted to leave the stash
house until payment was received. The fact
that they needed to be kept in check by physi-
cal barriers and threats of force belies, how-
ever, any contention that they continued to
consent to be kept at the stash house. Their
freedom to move where they wished was
forcibly curtailed, and they were thus “physi-
cally restrained” under the plain meaning of
17(...continued)
application of same case, noting that the factors
highlighted in Dixon “do not limit the guideline”).
18 See also United States v. Morris, 46 F.3d
410, 422 (5th Cir. 1995).
19 The modified truck was found outside the
stash house where Daniel Angeles-Mendoza was
arrested, and evidence indicated he handled the
aliens when they were dropped off there.
20 Daniel Angeles-Mendoza worked as the “en-
forcer” at the Austin stash house. Additionally,
there were indications that he knew the expansive-
ness of the organization; he admitted knowledge of
another stash house, and his identification was
(continued...)
20(...continued)
found at a similar Houston site.

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10
the guidelines.21
Defendants also argue that the application
of the enhancement is inappropriate double
counting because the offense level was also
increased for brandishing a firearm. This
argument is without merit, because double
counting “is impermissible only where the
guidelines at issue prohibit it,” and § 3A1.3
does not prohibit double counting.22 The
district court did not commit error, and cer-
tainly not clear error, in finding that the aliens
were physically restrained because of how they
were confined at the stash house, making the
upward adjustment proper under § 3A1.3.
VII.
Ceron-Espinoza argues that the district
court erred in refusing to grant him a down-
ward adjustment for acceptance of responsibil-
ity under U.S.S.G. § 3E1.1, which states that
“[i]f the defendant clearly demonstrates accep-
tance of responsibility for his offense,” his
offense level is decreased by two levels. A
defendant who enters a guilty plea is not
entitled to the adjustment as a matter of right;
in connection with a plea, the court is in-
structed to consider whether defendant truth-
fully admitted the conduct comprising the
offense, including additional relevant conduct
for which he is responsible.23 We review the
sentencing court’s determination of acceptance
of responsibility with even more deference that
is due under a clearly erroneous standard
because the sentencing judge is in a unique
position to assess the defendant’s acceptance
of responsibility and true remorse.24
The court was within its discretion in
adopting the probation officer’s finding that
Ceron-Espinoza did not adequately accept re-
sponsibility because of contradictory state-
ments that he made before the court at various
stages, leading up to his plea of guilty. The
record indicates that at one point he asserted
that he was merely a smuggled alien himself
who was forced to work in the kitchen to pay
his transport fee, yet evidence demonstrated
that he was actively involved in confining the
smuggled aliens by threatening to shoot them
or break t heir legs if they tried to escape.
Additionally, he initially denied that he had
ever possessed the recovered shotgun, but
later he admitted to it.
Although Ceron-Espinoza pleaded guilty,
the district court was within its bounds of
discretion to conclude that he was trying to
misrepresent facts to minimize his role in the
21 In other contexts, we have found that the
initial acquiescence of a victim does nor foreclose
a finding that he is a hostage where force is later
used to seize or confine him. Cf. Carrion-Caliz,
944 F.2d at 225-26 (applying the Hostage Taking
Act).
22 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
specifically incorporates this factor, or where the
unlawful restraint of a victim is an element of the
offense itself.” U.S.S.G. § 3A1.3, cmt. n.2. The
specific offense guideline applicable in this case,
§ 2L1.1, does not specifically incorporate the ele-
ment of physical restraint, so that limitation is in-
applicable.
23 See U.S.S.G. § 3E1.1, cmt. n.3; see also
United States v. Pierce, 237 F.3d 693, 694 (5th
Cir. 2001).
24 See U.S.S.G., § 3E1.1, cmt. n.5.; see also
United States v. Nguyen, 190 F.3d 656, 659 (5th
Cir. 1999); United States v. Rodriguez, 942 F.2d
899, 902-03 (5th Cir. 1991).

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offense. Under these circumstances, particu-
larly under our extremely deferential standard
of review, the court committed no reversible
error in deciding that Ceron-Espinoza had
insufficiently accepted responsibility to deserve
a downward adjustment under § 3E1.1.
VIII.
Ceron-Espinoza argues that the district
court erred in denying him a reduction in his
offense level based on having a mitigating role
in the offense, pursuant to U.S.S.G. § 3B1.2,
which pro vides for a four-level reduction if
the defendant is a “minimal participant,” and a
two-level reduction if he is a “minor partici-
pant.” A “minimal participant” is one who is
“plainly among the least culpable of those
involved in the conduct of a group,” and who
demonstrates a lack of knowledge or under-
standing of the scope and structure of the en-
terprise. § 3B1.2, cmt. n.4. A “minor partici-
pant” is one who is “less culpable than most
other participants, but one whose role could
not be described as minimal.” § 3B1.2, cmt.
n.5.
A defendant has the burden of showing that
he is entitled to the adjustment, and to qualify
he must demonstrate that he is “substantially
less culpable than the average participant.”25
The determination of the applicability of this
downward adjustment is a question of fact that
we review for clear error. See United States v.
Virgen-Moreno, 265 F.3d 276, 296 (5th Cir.
2001).
The district court was not clearly erroneous
in finding that Ceron-Espinoza was an average
participant and thus not deserving of a down-
ward adjustment under § 3B1.2. Although
Ceron-Espinoza correctly points to the testi-
mony of several witnesses who indicated that
they only knew him to cook and clean around
the stash house, there was competent evidence
on the record that he was the enforcer at the
site; that he was one of three individuals in
charge of the stash house, at times wielding
the shotgun and issuing threats to the detained
aliens.
Other evidence showed that Ceron-Espino-
za had knowledge of the scope and structure
of the enterprise, in that he knew of how the
aliens were smuggled and detained until pay-
ment was received for their transport. Even if
Ceron-Espinoza played a relatively smaller role
in the offense as compared to his other co-
defendants, viewing the records as a whole the
district court did not commit clear error in
finding that he played a significant role, such
that he was an average participant and not
deserving of a downward adjustment based on
§ 3B1.2.
IX.
The defendants argue that under Booker,
their sentences violate their Sixth Amendment
right to findings by a jury, because the district
court assessed sentencing enhancements under
the then-mandatory sentencing guidelines,
based on facts that were neither admitted by
them nor found by a jury beyond a reasonable
doubt As we have explained, the district court
did not properly calculate the vulnerable victim
adjustment, § 3A1.1(b)(1). Even though
Booker renders the guidelines advisory, a
sentencing court must first arrive at the proper
guideline calculation before deciding which
sentence to impose.26
25 United States v. Garcia, 242 F.3d 593, 598
(5th Cir. 2001) (quoting U.S.S.G. § 3B1.2, cmt.
n.3(A)).
26 See supra note 3. The sentences here are
(continued...)

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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.

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