FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 17, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 06-11675, 06-11676

Non-Argument Calendar

________________________

D. C. Docket No. 05-00099-CR-FTM-33-DNF

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FRANCISCO RAYON SANTIAGO

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CLAUDIA PEREZ GARCIA, 

Defendant-Appellant. 
2

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

 (October 17, 2006)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

In this consolidated appeal, co-defendants Claudia Perez Garcia and

Francisco Rayon Santiago challenge their sentences imposed after they pled guilty

to transporting illegal aliens for profit, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). 

After review, we affirm.

I. BACKGROUND

A. Offense Conduct

Carmela Altamirano-Vasquez wired $2,000 to an account to have her 15-

year-old daughter, Olimpia, smuggled from Mexico into the United States. After

being smuggled into the United States through California, Olimpia was placed in a

van containing approximately 14 to 16 other illegal aliens and was transported by

Defendants Garcia and Santiago to Florida. 

Vasquez had been told that her daughter would be dropped off at a gas

station. When the van arrived at the gas station, however, Defendant Garcia
3

informed Vasquez that Vasquez would have to pay an additional $780 dollars for

delivery of Olimpia. When Vasquez refused to pay the extra money, Defendant

Garcia drove the van away with Olimpia still inside.

Vasquez pursued the van in her own vehicle. Using a cell phone, Defendant

Garcia called Vasquez’s residence and told the woman who answered that Garcia

was driving between 80 and 90 miles an hour and would throw Olimpia out of the

van if Vasquez did not stop following her. Vasquez called 911 and reported that

her daughter had been kidnapped. Law enforcement stopped the van and found

Defendant Garcia, Defendant Santiago and four illegal aliens, including Olimpia,

inside.

After being arrested, Defendants Garcia and Santiago admitted to

Immigration and Customs Enforcement agents that they knew the passengers in the

van were illegal aliens. Garcia further admitted that she had been paid $800 and

that she would have received an additional $800 upon completion of the trip. 

Defendant Garcia told law enforcement that she and Defendant Santiago were not

given a list of which aliens still owed money and that the aliens were supposed to

tell them. 

Defendant Santiago admitted being a driver of the van and that he would

have been paid $1,000 upon completion of the trip. Santiago also admitted to
4

having made similar trips two or three times in the past.

B. Guilty Pleas

In separate hearings, both Defendants Garcia and Santiago pled guilty to

transporting “an illegal alien or aliens” knowing that the “alien or aliens” had

illegally entered the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). 

At Defendant Garcia’s plea hearing, the magistrate judge advised Garcia that

she faced a ten-year penalty for each alien transported and thus could face 30 to 40

years’ imprisonment. See 8 U.S.C. § 1324(a)(1)(B)(i). The magistrate judge noted

the possible application of a 20-year statutory enhancement based on endangering

an alien and asked the government’s position. See id. § 1324(a)(1)(B)(iii). The

Assistant United States Attorney (“AUSA”) representing the government, who was

standing in for the AUSA assigned to Garcia’s case, stated that he did not believe

that the aliens had been endangered or that the United States would be seeking that

particular statutory enhancement. Based on the AUSA’s response and the fact that

three aliens had been mentioned in Defendant Garcia’s plea agreement, the

magistrate judge found that the statutory maximum sentence was 30 years. 

Defendant Garcia disagreed with the magistrate judge’s calculation of the statutory

maximum because the indictment had not specifically identified more than one

alien. Accordingly, the magistrate judge allowed Garcia a one-day continuance to
5

contemplate her plea. 

At the continuation of the plea hearing, the government’s main counsel was

present. This AUSA clarified that, although the government was not seeking a

statutory enhancement based on endangerment, it would likely be asking for a

guidelines enhancement. The magistrate judge restated that Defendant Garcia’s

statutory maximum sentence was 30 years. Garcia persisted in her guilty plea,

which was accepted by the district court on the magistrate judge’s

recommendation.

At his plea hearing, Defendant Santiago admitted to driving with Defendant

Garcia from California to bring illegal aliens to Florida. Santiago also clarified

that there were two illegal aliens in the van when it was stopped by law

enforcement. As with Garcia’s plea hearing, the parties debated the appropriate

statutory maximum sentence. Ultimately, the magistrate judge found that the

maximum penalty was 30 years. Santiago expressed his desire to persist in his

guilty plea, but noted that the indictment had failed to allege the specific number of

aliens involved. The magistrate judge recommended that the district court accept

Santiago’s plea, and the district court did so.

C. Sentencing Hearing

The presentence investigation reports (“PSI”) recommended holding
6

Defendants Garcia and Santiago accountable for transporting at least 14 illegal

aliens based on law enforcement interviews with Olimpia and the other two illegal

aliens found in the van. The PSIs applied a three-level offense level increase

pursuant to U.S.S.G. § 2L1.1(b)(2) because Garcia and Santiago had transported

between 6 and 24 illegal aliens. The PSIs also made a two-level victim-related

adjustment pursuant to U.S.S.G. § 3A1.3 because Olimpia had been physically

restrained when Garcia had driven off without delivering her to her mother. The

PSIs calculated a guidelines range of 15 to 21 months for each defendant.

Citing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),

Defendants Garcia and Santiago objected to the three-level increase for the number

of aliens transported. Garcia and Santiago also objected to the victim-related

adjustment. The defendants did not object to the portions of the PSIs containing

the facts of the offense. 

The district court overruled all of the defendants’ objections and adopted the

facts and guidelines calculations in the PSI. As to Defendant Garcia, the district

court noted the advisory guidelines range of 15 to 21 months, stated that it had

considered all the factors in 18 U.S.C. § 3553(a) and found that a 21-month

sentence was appropriate. The district court explained that it sentenced Garcia at

the high end of the advisory guidelines range because Garcia had “preyed on the
Garcia and Santiago timely raised their Booker objections to the enhancement based on the 1

number of aliens, and thus, we review their claims on appeal de novo, but reverse only for harmful

error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

7

wishes of people who wanted to come to the United States.” The district court

noted in particular the cruel way in which Garcia had treated Olimpia and her

mother.

As to Defendant Santiago, the district court again noted the advisory

guidelines range and stated that it had considered the § 3553(a) factors. The

district court sentenced Santiago to a 17-month sentence. The district court

explained that it had imposed this particular sentence for deterrence purposes and

because his co-defendant, Garcia, was more culpable. The district court stated,

however, that Santiago did not deserve a sentence at the low end of the guidelines

range because his actions had preyed on the vulnerabilities of others and were done

for profit. Garcia and Santiago appealed.

II. DISCUSSION

A. Booker

Defendants Garcia and Santiago first argue that the district court violated

their constitutional rights under Booker when it enhanced their sentences based on

the number of aliens transported. This argument is without merit. It is well 1

settled that, as long as a district court applies the guidelines in an advisory fashion,
8

which the district court did in this case, it is not precluded from making additional

factual findings, under a preponderance-of-the-evidence standard, that go beyond

the facts charged in the indictment and admitted by the defendant. See United

States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005). Additionally, Garcia and

Santiago did not make a factual objection to the number of aliens alleged in the

PSI, effectively admitting this fact for Booker purposes. See United States v.

Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). Accordingly, there is no Booker

error.

B. Apprendi

Defendant Santiago also argues that the district committed error under

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), by increasing his

statutory maximum based on the number of aliens transported, a fact not alleged in

the indictment. See Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct.

2531, 2537 (explaining that the “‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely based on the facts reflected in the

jury verdict or admitted by the defendant” and not additional judge-made findings

(emphasis removed)). The district court did not commit Apprendi error. During

his plea colloquy, Santiago admitted that there were two aliens in the van when it

was stopped by law enforcement. Thus, the ten-year penalty applied to each alien,
We review a sentencing court’s findings of fact for clear error and the application of the 2

guidelines to those facts de novo. United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996).

9

resulting in a 20-year statutory maximum. See 8 U.S.C. § 1324(a)(1)(B)(i). The

facts found by the district court, namely that 14 aliens were transported, did not

increase Santiago’s sentence above the statutory maximum authorized by

Santiago’s admitted facts. Indeed, Santiago’s 17-month sentence was well below

the ten-year statutory maximum that would have applied had Santiago not made

that admission.

C. Restrained Victim Enhancement

Garcia and Santiago also challenge the district court’s use of the restrained

victim enhancement, pursuant to U.S.S.G. § 3A1.3. Under U.S.S.G. § 3A1.3, the 2

district court may increase a defendant’s offense level by two if a victim was

“physically restrained” in the course of the offense. U.S.S.G. § 3A1.3. “Physically

restrained” means the “forcible restraint of the victim such as by being tied, bound,

or locked up.” U.S.S.G. § 1B1.1, comment. (n.1(K)). The use of the modifier

“such as” in this definition indicates that the illustrations of physical restraint are

listed by way of example rather than as limitations. See United States v. Gonzalez,

183 F.3d 1315, 1327 (11th Cir. 1999) (concluding that forcibly holding victims at

gunpoint constituted physical restraint), overruled on other grounds, United States
We also reject Garcia’s argument that the government represented in the trial court that it 3

would not seek the restrained victim enhancement. The government never represented that it would

not seek the § 3A1.3 enhancement. Rather, it stated that it did not think that the statutory penalty

for endangerment, 8 U.S.C. § 1324(a)(1)(B)(iii), applied. In any event, the district court was

10

v. Diaz, 248 F.3d 1065 (11th Cir. 2001). We have construed the definition of

“physically restrained” in § 1B1.1 to include a situation in which the victims were

held against their will, were left with no alternative but to comply with the

defendant and had no effective way of leaving. See United States v. Vallejo, 297

F.3d 1154, 1167 (11th Cir. 2002) (involving victims held while being forced to

sign documents even though the victims were permitted to move between a club

and a restaurant next door).

Here, the district court did not clearly err in applying the § 3A1.3

enhancement. Instead of delivering Olimpia – a 15-year-old illegal alien – to her

mother at the gas station as arranged, Garcia drove away with Olimpia in order to

extort more money from her mother. Garcia also threatened to throw Olimpia out

of the van if her mother did not stop following the van. Garcia’s actions and

threats effectively prevented Olimpia from leaving the van and joining her mother. 

Garcia’s argument that Olimpia was not in danger during these events is irrelevant

because whether Olimpia was physically restrained within the meaning of § 3A1.3

does not turn on whether the victim was in danger, but on whether the victim was

unable to leave.3
required to calculated Garcia’s guidelines range based on all relevant conduct that occurred during

the commission of the offense regardless of the government’s representations. See U.S.S.G. §

1B1.3(a).

Generally, we review de novo a claim of double counting. United States 4

v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir. 1999). While Garcia did object to a sentence

at the high end of the guidelines range, she did not clearly make a double counting objection. Thus,

her claim on appeal is reviewed only for plain error. See United States v. Neely, 979 F.2d 1522,

1523 (11th Cir. 1992).

11

Furthermore, the district court did not clearly err in attributing Garcia’s

conduct to Santiago because such conduct was reasonably foreseeable given the

nature of the offense. See U.S.S.G. § 1B1.3(a)(1)(B), cmt. n.2 (explaining that one

defendant in a bank robbery is held accountable for second defendant’s assaulting

or injuring a victim because such conduct was reasonably foreseeable “given the

nature of the offense”). Garcia and Santiago agreed to transport illegal aliens, a

scared and vulnerable group, across the country in exchange for money. As part of

this plan, Garcia and Santiago were required to collect money from the aliens upon

delivering them to their destination. These circumstances created an environment

ripe for extortion.

D. Double Counting

Finally, Garcia argues that her 21-month sentence was excessive because it

was based on “double enhancements for the same offense.” “‘Impermissible 4

double counting occurs only when one part of the Guidelines is applied to increase

a defendant’s punishment on account of a kind of harm that has already been fully
12

accounted for by application of another part of the Guidelines.’” United States v.

Dudley, ___ F.3d ___, 2006 WL 2571020, at *4 (11th Cir. Sept. 8, 2006) (quoting

Matos-Rodriguez, 188 F.3d at 1309). Here, no double counting error occurred.

Garcia’s sentence was enhanced based on two separate kinds of harm – the

number of aliens she transported and her physical restraint of Olimpia. Neither of

these enhancements contained a harm that was fully taken into account by the

other. Furthermore, the fact that the district court sentenced Garcia at the high end

of the applicable guidelines range does not mean that Garcia’s sentence was

enhanced again. The district court has discretion to sentence anywhere within or

outside the applicable guidelines range so long as that sentence is reasonable. We

note, in any event, that the district court’s reasons for imposing a sentence at the

high end of the range, namely that Garcia had “preyed” on vulnerable illegal aliens

and treated both Olimpia and her mother cruelly, were not fully taken into account

as part of either guidelines enhancement.

III. CONCLUSION

For these reasons, we affirm Garcia’s 21-month sentence and Santiago’s 17-

month sentence.

AFFIRMED.