United States v. Flores ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4178
MIGUEL A. FLORES,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-96-806)
Argued: September 22, 1999
Decided: October 29, 1999
Before MURNAGHAN, MICHAEL, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinon.
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COUNSEL
ARGUED: Louis H. Lang, CALLISON, TIGHE, ROBINSON &
HAWKINS, L.L.P., Columbia, South Carolina, for Appellant.
Rebecca K. Troth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Bill Lann Lee, Acting
Assistant Attorney General, Dennis J. Dimsey, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; J. Rene Josey,
United States Attorney, Marshall Prince, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Miguel A. Flores appeals the 180-month sentence imposed upon
his convictions of: six counts of holding others in involuntary servi-
tude; six counts of collection of extensions of credit by extortionate
means; six counts of transporting illegal aliens within the United
States; concealing and harboring illegal aliens; transporting migrant
farm workers in unsafe vehicles; and conspiracy to commit these
crimes.1 We affirm.
I.
Flores ran a business that provided agricultural workers to plant
and harvest crops in the area around Manning, South Carolina. Two
of Flores's employees, Nolasco Castaneda and Andre Ixcoy, recruited
undocumented migrant farm workers who spoke little or no English
and had little education. The workers were transported from the Mex-
ican border to South Carolina in vans that had been modified to hold
up to twenty-six men. During the trip from Arizona to South Carolina,
the workers usually were not allowed to leave the vans.
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1 Flores was convicted on his guilty pleas to the following charges:
(a) Count One -- conspiracy, pursuant to 18 U.S.C. § 371;
(b) Counts Two through Seven -- involuntary servitude, pur-
suant to 18 U.S.C. § 1584;
(c) Counts Eight through Thirteen -- collection of extensions
of credit by extortionate means, pursuant to 18 U.S.C.
§ 894;
(d) Counts Fifteen through Twenty-one -- transporting or har-
boring certain aliens, pursuant to 8 U.S.C. § 1324(a)(1)(C);
(e) Count Twenty-two -- transporting certain aliens by unsafe
means, pursuant to 29 U.S.C. § 1841.
2
The workers were taken to several labor camps near Manning. The
main camp was in a secluded area, surrounded by woods and
marshes. The only exit from the camp was an unlit, unpaved lane run-
ning to the main road.
Upon arrival in South Carolina, Flores extended credit to the work-
ers. The workers were informed that they had to work for the Flores
operation for as long as it took to pay off a smuggling fee, through
deductions from their pay. This prolonged the length of the workers'
servitude. Workers were told that anyone who attempted to leave the
camps would be hunted down and killed. Additionally, Flores and
others intimidated the workers by brandishing and sometimes dis-
charging firearms.
On approximately June 19, 1992, Flores and a supervisor, Sebas-
tian Gomez, beat migrant worker Antonio Perez as punishment for his
complaints about the camp conditions. Ramon Pena attempted to
intervene, and Flores struck him in the head with a semi-automatic
pistol. Pena was hospitalized until June 26 with severe contusions and
lacerations to his head.
II.
Flores entered his guilty plea with the understanding that he could
appeal his sentence. Subsequently, he entered into an "Addendum to
Plea Agreement" that contained a clause purporting to waive, inter
alia, his appellate rights. At Flores's sentencing hearing, the court
gave counsel an opportunity to discuss the Addendum with Flores.
However, there was no rearraignment and the district court did not
question Flores directly about his understanding or acceptance of the
appeal waiver. Neither Flores nor his counsel confirmed to the court
that Flores understood the waiver's significance. We do not decide
the thorny issue of whether Flores effectively waived his right to
appeal his sentence2 because, in any event, Flores's arguments on the
merits are without substance.
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2 At oral argument, counsel for the Government represented that, if the
merits of Flores's appeal are considered, the Government will not seek
to vacate the two-point reduction in Flores's offense level that he
received upon the Government's recommendation, pursuant to terms of
the Addendum.
3
III.
Flores claims that the district court improperly increased his
offense level on Counts Eight through Thirteen by five levels because
he discharged a firearm. See USSG § 2E2.1(b)(1)(A) (1991).3 We
review the district court's factual findings at sentencing for clear
error. See United States v. Melton, 970 F.2d 1328, 1331 (4th Cir.
1992).
Flores admits that firearms were discharged -- evidently, in the
fields and at night -- but contends that they were not related to any
offense conduct, including the extortion counts. Relevant conduct for
the determination of the challenged specific offense characteristic
includes all acts committed, aided, abetted, counseled, induced, or
willfully caused by the defendant, and all reasonably foreseeable acts
of others in furtherance of the jointly undertaken criminal activity,
where those acts occurred during the preparation for or the commis-
sion of the offense. See USSG § 1B1.3.
It may reasonably be inferred that displaying firearms contributed
to a climate of fear prevailing in the camps; the admitted discharge
of firearms made this threat all the more real, and thus facilitated Flo-
res's extortion scheme. We therefore conclude that there was no clear
error in increasing the offense level by five levels pursuant to
§ 2E1.1(b)(1)(A).
IV.
Flores also contends that the district court erred when it enhanced
his sentence because Pena sustained serious bodily injury. See USSG
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3 The 1991 version of the guidelines was applied in this case, because
it was less punitive than the version in effect at the time of sentencing.
However, Flores contends that he should have the benefit of the amended
guideline, which provides for a three-level reduction in offense level for
acceptance of responsibility rather than the two-level reduction in effect
in 1991. See USSG § 3E1.1 (1997). Flores's argument has no merit. "The
court shall not apply . . . one guideline section from one edition of the
Guidelines Manual and another guideline section from a different edition
of the Guidelines Manual." USSG § 1B1.11(b)(2) (1997).
4
§ 2E2.1(b)(2)(B). Pena was named in the conspiracy count but not
identified as a victim of Flores's extortion. At sentencing, the district
court found that Flores beat Pena when Pena tried to stop Flores and
Gomez from beating Perez, a named extortion victim. The court noted
that Pena's injuries were so severe that he was hospitalized for seven
days.
The district court found that the enhancement was proper, because
Pena was a named victim of the conspiracy. The court observed that
not only was Pena beaten, but Flores, in furtherance of the conspiracy
to extort and to hold others in servitude, attempted to conceal from
authorities how Pena sustained his injuries.
We conclude that the enhancement for serious bodily injury was
proper. The conspiracy count was grouped with the count charging
Flores with extortion from Perez. In sentencing for a conspiracy
offense, the base offense level is determined by reference to the
guideline for the substantive offense, which in this case is extortion,
plus "any adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty." USSG
§ 2X1.1(a). Because Pena was a victim of the conspiracy, it was
appropriate to enhance Flores's sentence to reflect Pena's injuries.
V.
Pursuant to the foregoing, we reject Flores's arguments on their
merits, and affirm the sentence imposed on his multiple convictions.
AFFIRMED
5