*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this opinion should not be published and is not precedent except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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United States Court of Appeals

Fifth Circuit

FILED

July 1, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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
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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. SanchezAngeles 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),
1 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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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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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 SanchezAngeles 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.