United States v. Torres-Colon , 156 F. App'x 332 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1408
UNITED STATES OF AMERICA,
Appellee,
v.
FRANKIE TORRES-COLON,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Hector E. Guzman-Silva, Assistant Federal Public Defender,
Patricia A. Garrity, Research and Writing Specialist, and Joseph C.
Laws, Jr., Federal Public Defender, District of Puerto Rico, on
brief for appellant.
German A. Rieckehoff, Assistant United States Attorney, Nelson
Perez-Sosa, Assistant United States Attorney, Senior Appellate
Attorney, and H.S. Garcia, United States Attorney, on brief for
appellee.
December 2, 2005
Per Curiam. Frankie Torres-Colon, who pled guilty to
carjacking and was sentenced to 262 months in prison and five
years of supervised release, appeals his sentence on four
grounds: (1) that the district court erred in enhancing his
offense level for physically restraining a person to facilitate
commission of the offense; (2) that the district court erred in
enhancing his offense level for using a minor to commit the
offense or to assist in avoiding detection or apprehension;
(3) that the district court erred (a) in imposing a drug
treatment condition of supervised release in its written judgment
that was not announced at sentencing and (b) in failing to
specify the maximum number of drug tests that defendant would be
subjected to while on supervised release; and (4) that he is
entitled to resentencing under United States v. Booker, 125 S.
Ct. 738 (2005). For the reasons discussed below, we vacate the
drug treatment condition but find the remaining claims of error
to be without merit and therefore otherwise affirm the district
court's judgment.
1. Enhancement for Physical Restraint
Torres-Colon first challenges the two-level enhancement
that the district court predicated on its conclusion that the
victim had been "physically restrained" to facilitate defendants'
commission of the carjacking offense or their escape. See USSG
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§ 2B3.1(b)(4)(B).1 Because the relevant facts are undisputed,
this challenge presents an issue of Guideline interpretation,
which is reviewed de novo. United States v. DeLuca, 137 F.3d 24,
39 n.17 (1st Cir. 1998).
As Torres-Colon concedes, the examples listed in the
Guideline definition of "physically restrained," USSG § 1B1.1,
comment. (n.1 (h)) ("the forcible restraint of the victim such as
by being tied, bound, or locked up"), "are merely
illustrative . . ., not exhaustive," DeLuca, 137 F.3d at 39. To
constitute physical restraint, it is sufficient that the victim's
freedom of movement be physically restricted. Id. Under that
standard, the district court's conclusion that the victim was
physically restrained from leaving the scene by being stabbed and
beaten is legally correct and amply supported by the undisputed
facts.
2. Enhancement for Using a Minor
Torres-Colon next challenges the two-level enhancement
that the district court predicated on its conclusion that the
defendants had used a minor in the commission of the offense.
See USSG § 3B1.4. Specifically, the district court found that
"the child was part of [defendants'] concealment and was a decoy
in order for them to carry out this offense." If viewed as a
1
All citations to the Guidelines herein are to the 2002
Guidelines Manual, the version that applied at Torres-Colon's
sentencing. See PSR, ¶ 11.
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factual finding, that conclusion is a reasonable inference from
the undisputed facts that the offense occurred in a school
parking lot at dismissal time, where other adults were likely to
be accompanied by children. From those facts, it could
reasonably be inferred, as the government argued, that the
defendants used the child to fit in better with the other adults
and thereby allay suspicions as to their nefarious intentions.
As a legal matter, we agree with the other circuits that have
held that using a child as a decoy is sufficient to constitute
"use" of the child within the meaning of section 3B1.4. See
United States v. Alarcon, 261 F.3d 416, 422-23 (5th Cir. 2001);
United States v. Castro-Hernandez, 258 F.3d 1057, 1060-61 (9th
Cir. 2001); cf. United States v. Warner, 204 F.3d 799, 800-01
(8th Cir. 2000) (upholding enhancement for use of a child where
defendant brought his child to a drug deal and offered to leave
her as security while defendant went to set the drugs).
3. Drug Testing and Treatment Conditions of Supervised Release
On appeal, Torres-Colon raises two challenges to the
conditions of supervised release, neither of which was raised
below. First, he argues that the district court violated his
right to be present at trial by requiring in the written
judgment--without first announcing the requirement at sentencing-
-that if Torres-Colon has a positive drug test while on
supervised release, "he shall participate in a substance abuse
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program arranged and approved by the Probation officer . . . ."
We agree that by imposing this condition for the first time in
its written judgment, the district court erred. United States v.
Meléndez-Santana, 353 F.3d 93, 100 (1st Cir. 2003), overruled, in
part, on other grounds by United States v. Padilla, 415 F.3d 211,
220 (1st Cir. 2005) (en banc). Accordingly, we vacate that
condition.
Next, Torres-Colon argues that the district court
violated 18 U.S.C. § 3583(d) and USSG § 5D1.3(a)(4)2 by
delegating to the probation officer the discretion to determine
the maximum number of drug tests that Torres-Colon must undergo
while on supervised release.3 Although the government conceded
error on this point, its concession rested on our decision in
Meléndez-Santana, which has since been overruled in relevant
part. See Padilla, 415 F.3d at 215. Therefore, we do not hold
the government to that concession but rather consider the issue
ourselves. United States v. Sánchez-Berríos, 424 F.3d 65, 81
(1st Cir. 2005).
2
Both of those provisions mandate that a defendant on
supervised release be required to submit to one drug test within 15
days of release and at least two periodic drug tests thereafter
"(as determined by the court)."
3
Although this condition was not announced at sentencing,
Torres-Colon does not challenge it on right-to-be-present grounds
and concedes that plain-error review applies to his wrongful
delegation claim.
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Despite Padilla, the drug-testing condition remains an
impermissible delegation of authority to the probation officer.
See Padilla, 415 F.3d at 217-18 (leaving that holding of
Meléndez-Santana intact). Nevertheless, for the reasons
discussed elsewhere in Padilla, that delegation error neither
affected Torres-Colon's substantial rights nor seriously impugned
the integrity of the judicial proceedings. Id. at 220-24.
Therefore, we decline to correct the error. Sánchez-Berríos, 424
F.3d at 81.
4. Booker Error
Finally, Torres-Colon argues that he is entitled to
resentencing under Booker. Although he concedes that this
argument was not preserved below, he asks the court to revisit
its holding, first set forth in Antonakopoulos, 399 F.3d at 75,
that to satisfy the third and fourth prongs of the plain error
test, "the defendant must point to circumstances creating a
reasonable probability that the district court would impose a
different sentence more favorable to the defendant under the new
'advisory Guidelines' Booker regime." We have repeatedly
rejected that same plea as beyond the power of a post-
Antonakopoulos panel, see United States v. Villafane-Jimenez, 410
F.3d 74, 85 (1st Cir. 2005) (per curiam); United States v.
Bailey, 405 F.3d 102, 114 (1st Cir. 2005). For the same reason,
we do so here.
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Torres-Colon virtually concedes that he cannot satisfy
the Antonakopoulos standard, saying that he "can do no more than
speculate about what the district court judge might have done
differently under an advisory guidelines regimen." As a fall-
back position, however, he makes a brief, conclusory argument
that the district court would have sentenced him differently if
the Guidelines were not mandatory. In support of that
contention, he alludes to "the severe disadvantage he suffered in
his upbringing, his mental status after years of substance abuse,
and his socio-economic status," which he claims were not raised
or considered by the district court at sentencing. In the
district court, however, Torres-Colon told the probation officer
that he had a "good" childhood, was reared by his mother (an
elementary school teacher) and his grandmother in a "normal"
setting, and enjoys good mental and emotional health. We are
therefore reluctant to consider the proffered factors as
potentially mitigating circumstances. See United States v.
Martins, 413 F.3d 139, 154 (1st Cir. 2005).
Moreover, the district court expressly considered
Torres-Colon's substance abuse and found it to be "surely no
excuse for the senseless and cruel emotional harm that has been
caused to the victim, his family and society as a whole." The
district court further commented that a "harsh sentence"--the top
of the applicable Guidelines range--was necessary to protect the
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public and "meet the sentencing purposes in this particular
case." Given those circumstances and comments, we see no
reasonable probability that the district court would have imposed
a lesser sentence under post-Booker standards. See, e.g., United
States v. Baskin, 424 F.3d 1, 4-5 (1st Cir. 2005); United States
v. Estevez, 419 F.3d 77, 80-82 (1st Cir. 2005).
For the above reasons, we vacate the drug treatment
condition of supervised release and remand the case to the
district court for the sole purpose of deleting that condition
from the written judgment. In all other respects, the district
court's judgment and sentence are affirmed. See Local R. 27(c).
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