United States v. Sanchez-Angeles

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 1, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50445
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE F. SANCHEZ-ANGELES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-309-ALL
Before GARWOOD, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
On February 17, 2004, Jose F. Sanchez-Angeles pleaded guilty
to all counts of a five-count indictment in which he was charged
with: count (1) conspiring to smuggle, transport, and harbor
illegal aliens in violation of 8 U.S.C. § 1324; count (2) harboring
illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii); count
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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(3) providing a firearm to an illegal alien in violation of 18
U.S.C. § 922(d)(5)(A); count (4) conspiring to use a firearm during
a crime of violence as alleged in count (5), in violation of 18
U.S.C. §§ 924(c) and 924(o); and count (5) conspiring to take one
or more hostages in violation of 18 U.S.C. § 1203. Each count also
alleged aiding and abetting under 18 U.S.C. § 2. On April 22,
2004, Sanchez-Angeles was sentenced to, inter alia, imprisonment
for concurrent terms of 120 months on counts (1), (2) and (3), 240
months on count (4) and life on count (5), as well as to concurrent
terms of supervised release of three years on each of counts (1)
through (4) and five years on count (5). He appeals both his
conviction and his sentence. We affirm.
I.
We review the validity of a guilty plea de novo. United
States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997). The plain
error standard also applies because Sanchez-Angeles raised
neither of his two Rule 11 objections below. United States v.
Reyes, 300 F.3d 555, 558 (5th Cir. 2002) (citation omitted). He
must, therefore, demonstrate an (1) error that was (2) plain and
which (3) affected his substantial rights. United States v.
Olano, 113 S. Ct. 1770, 1776 (1993). If he can do this, we may
in our discretion reverse if the error compromises the fairness,
integrity, or public reputation of the judiciary. Id.
In broad strokes, Sanchez-Angeles was convicted of
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participating in a conspiracy to transport illegal aliens from
the Mexican border to a “stash” house in Austin, Texas. Aliens
who could not immediately pay their smuggling fee would be locked
in a room until a third-party such as a family member came
forward with the money. The aliens were further prevented from
escaping by “enforcers,” who were themselves illegal aliens,
armed with a shotgun.
Sanchez-Angeles first contends that his guilty plea was
involuntary because, after the magistrate judge read the five
counts during his Rule 11 plea colloquy, he told the court that
he did not want to plead guilty to the two weapons charges
(counts (3) and (4)). As reflected in the transcript of the
proceeding, the magistrate judge immediately called a recess to
allow Sanchez-Angeles an opportunity to confer with his attorney.
Following the recess, the magistrate judge asked Sanchez-Angeles
whether he had any reservations about pleading guilty to the five
counts, and, repeatedly, that he did so freely and voluntarily
and because he was guilty and not for any other reason. Sanchez-
Angeles unambiguously responded that he pleaded guilty to all
five counts. In this instance, as throughout the colloquy, the
magistrate judge adhered scrupulously to the requirements of Rule
11 and there is nothing in this passing moment of uncertainty to
suggest that Sanchez-Angeles’ plea was not voluntary and
intelligent under Boykin v. Alabama, 89 S. Ct. 1709, 1712 (1969),
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and its progeny. Sanchez-Angeles has, in other words, failed to
establish any error, much less one that affected his substantial
rights.
Sanchez-Angeles next argues that the factual basis for his
guilty plea, as set forth by the prosecutor during the Rule 11
hearing, was insufficient to support his conspiracy and aiding
and abetting conviction for hostage taking under 18 U.S.C. § 1203
because the prosecutor never asserted that the conspirators
detained the illegal aliens in a manner that was inconsistent
with the smuggling agreement.1 The elements of hostage-taking in
violation of 18 U.S.C. § 1203 are “that the defendant 1) seized
or detained another person, 2) threatened to kill, injure, or
continue to detain that person, 3) with the purpose of compelling
a third person or governmental entity to act in some way, or to
refrain from acting in some way.” United States v. Carrion-
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Sanchez-Angeles also argues that the factual basis for his
guilty plea was inadequate because the prosecutor did not assert
that Sanchez-Angeles personally detained the illegal aliens.
This contention lacks merit. Sanchez-Angeles pleaded guilty to
conspiring to violate and aiding and abetting violation of § 1203
and the facts asserted by the prosecutor unequivocally
established a conspiracy and aiding and abetting. The prosecutor
asserted that the evidence would show, inter alia, that the
illegal aliens were driven to the house (where they were
detained, against their will) by Sanchez-Angeles who furnished
the shotgun and ammunition to others who prevented the aliens
from leaving until their smuggling fees were paid and that
Sanchez-Angeles had caused the windows of the house to be boarded
up and the locks changed. Sanchez-Angeles stated that he
understood the prosecutor’s assertions and that they “accurately
state what happened.”
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Caliz, 944 F.2d 220, 223 (5th Cir. 1991). Even if the illegal
aliens initially consented to the smuggling arrangement, such a
contract was void ab initio and conferred no right on Sanchez-
Angeles to engage in conduct that would otherwise violate section
1203. Id. at 226 (“[T]he dispositive question is not whether
[the hostages] initially agreed to go to [the hostage taker’s]
house, but rather whether [the hostages] later were detained or
confined there against their will.”); United States v. Si Lu
Tian, 339 F.3d 143, 152-53 (2d Cir. 2003) (“A person who agrees
to be confined, held for ransom, and beaten may nevertheless
unilaterally revoke that arrangement at any time, and the
contractual nature of the detention does not run counter to a
finding that a person who wishes to be free is being detained
against her will.”). The facts described by the prosecutor amply
reflect that the illegal aliens confined in the stash house had
been seized and detained in a manner proscribed by the statute.
Once again, Sanchez-Angeles has failed even to identify an error,
much less one that requires reversal.
II.
Sanchez-Angeles, also for the first time on appeal, attacks
his life sentence under United States v. Booker, 125 S. Ct. 738
(2005). We review his objection under the plain error standard
of Olano, supra.
Sanchez-Angeles has established an error that was plain
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insofar as the district court sentenced him under the guidelines
when those guidelines were mandatory and sentenced him in part on
the basis of facts to which he did not admit during his plea
hearing. 125 S. Ct. at 755-56. Yet this alone is insufficient
to warrant remand for resentencing. Under United States v.
Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), Sanchez-Angeles must
in addition make an affirmative showing that the district court
would have imposed a lesser sentence under an advisory, rather
than mandatory, guidelines regime. See also United States v.
Holmes, No. 03-41738, 5th Cir. April 6, 2005, Slip Op. 2160. Not
only does Sanchez-Angeles not meet this burden, he does not even
attempt to do so, arguing instead only that the many enhancements
applied to his base sentences are unconstitutional per se. This,
however, is not a cognizable Booker argument and reflects a
fundamental misunderstanding of the case.
Conclusion
For the foregoing reasons, the judgment and sentence of the
district court is
AFFIRMED.
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