United States v. Bustamante ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51218
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE REYES BUSTAMANTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-98-CR-122-ALL)
October 13, 1999
Before REAVLEY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:*
Jose Reyes Bustamante appeals his sentence of 87 months’
imprisonment for conspiracy, smuggling, and harboring of aliens.
Bustamante contends that the district court erred in applying the
“vulnerable victim” enhancement, § 3A1.1(b) of the Sentencing
Guidelines. We agree and accordingly remand for resentencing.
I.
*
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this opinion should not be published and is not precedent except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.
Bustamante’s conviction rests on his June 1998 transport of
several aliens from Mexico into the United States. The alien
relevant to Bustamante’s sentencing enhancement is an 18-year-old
woman named Laura Aranda-Tovar. Once the smugglers and aliens had
arrived in Austin, Texas, Bustamante and another conspirator held
Aranda-Tovar in an apartment for one or two days until her relative
agreed to pay a $900 fee for the transport.
Apprehended and charged by the government, Bustamante pleaded
guilty. At sentencing, the district court applied the vulnerable
victim enhancement, bringing Bustamante’s sentencing range from 57-
71 to 70-87 months. The court sentenced Bustamante to concurrent
87-month sentences. Bustamante appealed.
II.
Section 3A1.1(b) of the 1997 sentencing guidelines provides
for a two-level enhancement under certain conditions:
If the defendant knew or should have known that a victim
of the offense was unusually vulnerable due to age,
physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal
conduct, increase by 2 levels.
U.S. Sentencing Guidelines Manual § 3A1.1(b) (1997). Bustamante
maintains that Aranda-Tovar was properly characterized as a
“customer” rather than a “victim” and that Aranda’s age and gender
did not make her an unusually vulnerable victim of the offense.
First, Bustamante argues that illegal aliens in alien
smuggling cases are not “victims” as a matter of law under
§3A1.1(b) because alien smuggling is a victimless crime.
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Bustamante cites United States v. Velasquez-Mercado, in which the
Fifth Circuit expressed skepticism that illegal aliens are
“victims” for purposes of § 3A1.1. See Velasquez-Mercado, 872 F.2d
632, 636 (5th Cir. 1989).
The Velasquez-Mercado court was applying the 1988 Sentencing
Guidelines. See id. at 634 n.2. The commentary to § 3A1.1 has
since undergone several clarifications. Bustamante was sentenced
under the 1997 Guidelines, which added Application Note 2 to the
commentary:
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
§ 1.B1.3 (Relevant Conduct).
U.S. Sentencing Guidelines § 3A1.1 cmt. 2 (1997). The Commission
explained that it added this language to specify that the “victim”
for sentencing purposes need not be the victim of the offense for
which the defendant was convicted. See U.S. Sentencing Guidelines
Appendix C No. 564 (1997). Thus, it is permissible for a court to
apply the vulnerable victim enhancement in an alien smuggling case,
even if aliens are not victims of the offense, if the defendant’s
conduct was relevant to the offense.
For the enhancement to apply, however, the defendant must have
exploited the victim’s particular weaknesses. The triggering
factor must be an unusual vulnerability only present in some
victims of that type of crime. See United States v. Moree, 897
F.2d 1329, 1335 (5th Cir. 1990). In United States v. Kuban, for
example, the age of the victim and his acquaintance with the
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defendant made him particularly vulnerable to the defendant’s
threats of force. 94 F.3d 971, 972 (5th Cir. 1996).
Here, the government presented no evidence that Bustamante
exploited any particular vulnerability of Aranda-Tovar. The fee
Bustamante charged for Aranda-Tovar’s transport is a factor already
incorporated into his offense. Section 3A1.1(b) does not apply if
the offense specifically incorporates the factor on which the
enhancement would be based. See U.S. Sentencing Guidelines § 3A1.1
cmt. 2 (1997).
Further, the government did not demonstrate that Aranda-
Tovar’s youth, gender, or assumed poverty and naivete made her
especially vulnerable. The government suggests that Aranda-Tovar
was held at the Austin apartment because she was young and female,
but our case law indicates that the holding of aliens pending
payment is not an unusual practice when the aliens have not pre-
paid for their transport. 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). There is no evidence that
Bustamante held Aranda-Tovar because she was a young woman rather
than as a routine way to secure payment.
We hold that it was clear error for the district court to
apply the vulnerable victim enhancement under § 3A1.1(b). The
sentence is vacated, and the case is remanded for resentencing.
VACATED AND REMANDED.
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