Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1408

UNITED STATES OF AMERICA,

Appellee,

v.

FRANKIE TORRES-COLON,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Boudin, Chief Judge,

Stahl, Senior Circuit Judge,

 and Lynch, Circuit Judge.

Hector E. Guzman-Silva, Assistant Federal Public Defender,

Patricia A. Garrity, Research and Writing Specialist, and Joseph C.

Laws, Jr., Federal Public Defender, District of Puerto Rico, on

brief for appellant.

German A. Rieckehoff, Assistant United States Attorney, Nelson

Perez-Sosa, Assistant United States Attorney, Senior Appellate

Attorney, and H.S. Garcia, United States Attorney, on brief for

appellee.

December 2, 2005
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Per Curiam. Frankie Torres-Colon, who pled guilty to

carjacking and was sentenced to 262 months in prison and five

years of supervised release, appeals his sentence on four

grounds: (1) that the district court erred in enhancing his

offense level for physically restraining a person to facilitate

commission of the offense; (2) that the district court erred in

enhancing his offense level for using a minor to commit the

offense or to assist in avoiding detection or apprehension;

(3) that the district court erred (a) in imposing a drug

treatment condition of supervised release in its written judgment

that was not announced at sentencing and (b) in failing to

specify the maximum number of drug tests that defendant would be

subjected to while on supervised release; and (4) that he is

entitled to resentencing under United States v. Booker, 125 S.

Ct. 738 (2005). For the reasons discussed below, we vacate the

drug treatment condition but find the remaining claims of error

to be without merit and therefore otherwise affirm the district

court's judgment. 

1. Enhancement for Physical Restraint 

Torres-Colon first challenges the two-level enhancement

that the district court predicated on its conclusion that the

victim had been "physically restrained" to facilitate defendants'

commission of the carjacking offense or their escape. See USSG
All citations to the Guidelines herein are to the 2002 1

Guidelines Manual, the version that applied at Torres-Colon's

sentencing. See PSR, ¶ 11.

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§ 2B3.1(b)(4)(B). Because the relevant facts are undisputed, 1

this challenge presents an issue of Guideline interpretation,

which is reviewed de novo. United States v. DeLuca, 137 F.3d 24,

39 n.17 (1st Cir. 1998).

As Torres-Colon concedes, the examples listed in the

Guideline definition of "physically restrained," USSG § 1B1.1,

comment. (n.1 (h)) ("the forcible restraint of the victim such as

by being tied, bound, or locked up"), "are merely

illustrative . . ., not exhaustive," DeLuca, 137 F.3d at 39. To

constitute physical restraint, it is sufficient that the victim's

freedom of movement be physically restricted. Id. Under that

standard, the district court's conclusion that the victim was

physically restrained from leaving the scene by being stabbed and

beaten is legally correct and amply supported by the undisputed

facts.

2. Enhancement for Using a Minor

Torres-Colon next challenges the two-level enhancement

that the district court predicated on its conclusion that the

defendants had used a minor in the commission of the offense.

See USSG § 3B1.4. Specifically, the district court found that

"the child was part of [defendants'] concealment and was a decoy

in order for them to carry out this offense." If viewed as a
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factual finding, that conclusion is a reasonable inference from

the undisputed facts that the offense occurred in a school

parking lot at dismissal time, where other adults were likely to

be accompanied by children. From those facts, it could

reasonably be inferred, as the government argued, that the

defendants used the child to fit in better with the other adults

and thereby allay suspicions as to their nefarious intentions.

As a legal matter, we agree with the other circuits that have

held that using a child as a decoy is sufficient to constitute

"use" of the child within the meaning of section 3B1.4. See

United States v. Alarcon, 261 F.3d 416, 422-23 (5th Cir. 2001);

United States v. Castro-Hernandez, 258 F.3d 1057, 1060-61 (9th

Cir. 2001); cf. United States v. Warner, 204 F.3d 799, 800-01

(8th Cir. 2000) (upholding enhancement for use of a child where

defendant brought his child to a drug deal and offered to leave

her as security while defendant went to set the drugs).

3. Drug Testing and Treatment Conditions of Supervised Release

On appeal, Torres-Colon raises two challenges to the

conditions of supervised release, neither of which was raised

below. First, he argues that the district court violated his

right to be present at trial by requiring in the written

judgment--without first announcing the requirement at sentencing-

-that if Torres-Colon has a positive drug test while on

supervised release, "he shall participate in a substance abuse
Both of those provisions mandate that a defendant on 2

supervised release be required to submit to one drug test within 15

days of release and at least two periodic drug tests thereafter

"(as determined by the court)."

Although this condition was not announced at sentencing, 3

Torres-Colon does not challenge it on right-to-be-present grounds

and concedes that plain-error review applies to his wrongful

delegation claim.

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program arranged and approved by the Probation officer . . . ."

We agree that by imposing this condition for the first time in

its written judgment, the district court erred. United States v.

Meléndez-Santana, 353 F.3d 93, 100 (1st Cir. 2003), overruled, in

part, on other grounds by United States v. Padilla, 415 F.3d 211,

220 (1st Cir. 2005) (en banc). Accordingly, we vacate that

condition.

Next, Torres-Colon argues that the district court

violated 18 U.S.C. § 3583(d) and USSG § 5D1.3(a)(4) by 2

delegating to the probation officer the discretion to determine

the maximum number of drug tests that Torres-Colon must undergo

while on supervised release. Although the government conceded 3

error on this point, its concession rested on our decision in

Meléndez-Santana, which has since been overruled in relevant

part. See Padilla, 415 F.3d at 215. Therefore, we do not hold

the government to that concession but rather consider the issue

ourselves. United States v. Sánchez-Berríos, 424 F.3d 65, 81

(1st Cir. 2005).
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Despite Padilla, the drug-testing condition remains an

impermissible delegation of authority to the probation officer.

See Padilla, 415 F.3d at 217-18 (leaving that holding of

Meléndez-Santana intact). Nevertheless, for the reasons

discussed elsewhere in Padilla, that delegation error neither

affected Torres-Colon's substantial rights nor seriously impugned

the integrity of the judicial proceedings. Id. at 220-24.

Therefore, we decline to correct the error. Sánchez-Berríos, 424

F.3d at 81.

4. Booker Error 

Finally, Torres-Colon argues that he is entitled to

resentencing under Booker. Although he concedes that this

argument was not preserved below, he asks the court to revisit

its holding, first set forth in Antonakopoulos, 399 F.3d at 75,

that to satisfy the third and fourth prongs of the plain error

test, "the defendant must point to circumstances creating a

reasonable probability that the district court would impose a

different sentence more favorable to the defendant under the new

'advisory Guidelines' Booker regime." We have repeatedly

rejected that same plea as beyond the power of a postAntonakopoulos panel, see United States v. Villafane-Jimenez, 410

F.3d 74, 85 (1st Cir. 2005) (per curiam); United States v.

Bailey, 405 F.3d 102, 114 (1st Cir. 2005). For the same reason,

we do so here.
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Torres-Colon virtually concedes that he cannot satisfy

the Antonakopoulos standard, saying that he "can do no more than

speculate about what the district court judge might have done

differently under an advisory guidelines regimen." As a fallback position, however, he makes a brief, conclusory argument

that the district court would have sentenced him differently if

the Guidelines were not mandatory. In support of that

contention, he alludes to "the severe disadvantage he suffered in

his upbringing, his mental status after years of substance abuse,

and his socio-economic status," which he claims were not raised

or considered by the district court at sentencing. In the

district court, however, Torres-Colon told the probation officer

that he had a "good" childhood, was reared by his mother (an

elementary school teacher) and his grandmother in a "normal"

setting, and enjoys good mental and emotional health. We are

therefore reluctant to consider the proffered factors as

potentially mitigating circumstances. See United States v.

Martins, 413 F.3d 139, 154 (1st Cir. 2005). 

Moreover, the district court expressly considered

Torres-Colon's substance abuse and found it to be "surely no

excuse for the senseless and cruel emotional harm that has been

caused to the victim, his family and society as a whole." The

district court further commented that a "harsh sentence"--the top

of the applicable Guidelines range--was necessary to protect the
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public and "meet the sentencing purposes in this particular

case." Given those circumstances and comments, we see no

reasonable probability that the district court would have imposed

a lesser sentence under post-Booker standards. See, e.g., United

States v. Baskin, 424 F.3d 1, 4-5 (1st Cir. 2005); United States

v. Estevez, 419 F.3d 77, 80-82 (1st Cir. 2005).

For the above reasons, we vacate the drug treatment

condition of supervised release and remand the case to the

district court for the sole purpose of deleting that condition

from the written judgment. In all other respects, the district

court's judgment and sentence are affirmed. See Local R. 27(c).