                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2003

USA v. Castro
Precedential or Non-Precedential: Non-Precedential

Docket 01-2540




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"USA v. Castro" (2003). 2003 Decisions. Paper 633.
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                                                                               NOT PRECEDENTIAL

                         IN THE UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT
                                       ____________

                                             No. 01-2540
                                            ____________

                         UNITED STATES OF AMERICA

                                                    v.

                         PABLO ANDRES CASTRO


                                        Pablo Castro,
                                                   Appellant
                                            ____________

                            Appeal from the United States District Court
                                     For the District of New Jersey
                                        D.C. No.: 00-CR-546
                           District Judge: Honorable Joseph A. Greenaway
                                            ____________

                      Submitted Under Third Circuit LAR 34.1(a) April 10, 2003

           Before: BARRY and ROSENN, Circuit Judges, and POLLAK,* District Judge.

                                        (Filed: April 23, 2003)

                                     OPINION OF THE COURT
                                          ____________

ROSENN, Circuit Judge.

        This appeal challenges the sentence of the defendant who pled guilty to kidnaping.




*Honorable Louis H. Pollak, United States District Court for the Eastern District of
Pennsylvania, Sitting by Designation
In August, 2000, the defendant and two others, Luis Carlos Balanta and Cesar Agusto

Cardona, were charged in a two-count indictment with conspiracy to commit kidnaping and

with kidnaping in violation of 18 U.S.C. § 1201(a)(1) and (c). On October 12, 2000, the

defendant pled guilty to the conspiracy count pursuant to a written plea agreement. As part

of the agreement, he agreed to stipulate at sentencing as follows: “Because a dangerous

weapon was used during the course of the kidnaping, [S]pecific Offense Characteristic §

2A4.1(b)(3) applies. This Specific Offense Characteristic results in an increase of 2

levels.” At sentencing, the defendant argued that the two-level enhancement for use of a

dangerous weapon was inappropriate and should not be applied to him.

        The District Court specifically found that the defendant had not reserved his right to

challenge the stipulation at the time of his sentence. The weapons enhancement was

accordingly included in Castro’s sentence. Castro now brings a direct appeal1 challenging

inter alia the sentence enhancement and claims his counsel was ineffective . We affirm.

                                                   I.

        Defendant Castro conspired with three other men – Balanta, Cardona, and Jason

Montoya – to kidnap a drug dealer named Nelson Rondon to recoup money Rondon owed

Balanta. On July 18, 2000, Castro and his co-conspirators drove from Queens, New York to

Elizabeth, New Jersey to kidnap Rondon. During the ride, Castro told his co-conspirators




   1
    The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. The
judgment was a final order for the purposes of 28 U.S.C. § 1291 and defendant had a right
to appeal under 18 U.S.C. § 3742(a).

                                                   2
about two weapons they were going to use to intimidate Rondon. At approximately 7:00

a.m., Castro and Montoya forcibly abducted Rondon in front of his house in Elizabeth.

Rondon stated that he was hit twice with a gun during the abduction, once in the back of the

head and once in the lower back. Castro and his partners in crime held Rondon captive for

several days and took him across state lines on several occasions.

        On July 21, 2000, the conspirators returned to Elizabeth in a Dodge Caravan with

Rondon in the back seat. A brown bag that contained a large frame automatic weapon and a

.38 caliber rifle were also in the minivan. The conspirators were arrested as they waited for

the ransom money to be delivered. After receiving his Miranda warnings, Castro confessed

to the kidnaping and said two of his co-conspirators carried weapons in furtherance of the

kidnaping.

        Castro now contends that he was not aware of any weapons that were used to abduct

Rondon until July 21. Castro may not now renege on the stipulations that were part and

parcel of his plea agreement. Castro also argues that the enhancement is improper because

he never personally possessed, used, or displayed a gun against Rondon. However, his

personal use of a gun is irrelevant because the government could prove that Castro’s co-

conspirators possessed a gun in connection with the offense and Castro was aware of it. All

that is required for a sentence enhancement is that a dangerous weapon be used and that its

uses be reasonably foreseeable acts or activities. See U.S.S.G. §§ 1B1.3(a)(1)(B),

2A4.1(b)(3).

        Even without Castro’s stipulation, the District Court’s conclusion that a gun was

                                                    3
used was not clearly erroneous. See United States v. Veksler, 62 F.3d 544, 550 (3d Cir.

1995). In addition to Castro’s stipulation, there was sufficient evidence for the District

Court to conclude that a gun was used. The Probation Office concluded that Castro had used

a dangerous weapon during the commission of a kidnaping. Thus, it recommended a two-

level upward adjustment. U.S.S.G. § 2A4.1(b)(3). Castro now contends that he was unaware

of any weapons that were used to abduct Rondon. En route to Rondon’s residence, Castro

told Cardona about the two weapons they were going to use to intimidate Rondon.

Furthermore, Rondon stated that he was hit in the back of the neck and the lower back with

guns. Castro admitted he was present at the abduction on July 18. Thus, it is not plausible

that Castro was unaware of any weapons until July 21.

           A two-level increase is appropriate if a dangerous weapon is used. See U.S.S.G. §

2A4.1(b)(3). “Used” means “discharged or otherwise used.” See United States v. Gaytan, 74

F.3d 545, 559 (5th Cir. 1996), cert. denied, 117 S. Ct. 77 (1996). “Otherwise used” means

that the conduct “did not amount to the discharge of a firearm but was more than

brandishing, displaying, or possessing a firearm or other dangerous weapon.” Id. (citing

U.S.S.G. § 1B1.1, comment n.1(f)). Castro implausibly argues that the guns were not

“otherwise used.” This argument is without merit. Rondon stated that he was hit with the

guns. Striking a victim with a gun is more than brandishing, displaying, or possessing a

firearm.

                                                     II.

           Castro’s claim of ineffective assistance of counsel was not raised below or decided

                                                     4
by the District Court. Generally, a claim for ineffective assistance of counsel may not be

raised on direct appeal. 2 Here, the factual record is not well enough established to resolve

this question on direct appeal. Therefore, we decline to entertain this aspect of Castro’s

appeal. See United States v. Haywood,155 F.3d 674, 678 (3d Cir. 1998).

                                                    III.

         The District Court’s judgment of conviction and sentence of May 18, 2001, is

hereby affirmed.




   2
    There is a narrow exception to the rule that defendants cannot attack the effectiveness
of counsel on direct appeal where the record is sufficient to allow a determination by the
Court of Appeals. See United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).
However, this exception does not apply to Castro’s claim.

                                                     5
TO THE CLERK:

Please file the foregoing opinion.




                                         /s/Max Rosenn
                                                Circuit Judge




                                     6
