                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-10832
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAMACIO ANDRADE-CASTANEDA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:03-CR-295-1
                      --------------------

Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Damacio Andrade-Castaneda (Andrade) appeals his 240-month

sentence from a conviction for conspiracy to commit hostage

taking, hostage taking and aiding and abetting, conspiracy to

transport and harbor illegal aliens, harboring illegal aliens and

aiding and abetting, and transporting illegal aliens.      Andrade

argues that the district court erred in imposing the following

sentencing increases:   a six level increase for a ransom demand,

a one level increase for failure to release an illegal alien, a

two level increase for vulnerable victim, and a four level

     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-10832
                                  -2-

increase for leadership role in the offenses.    Because Andrade

raised his objections in the district court, we review the

district court’s legal interpretation of the Sentencing

Guidelines de novo and its factual findings for clear error.

United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.

2005).

     With respect to the ransom increase, Andrade argues that

§ 2A4.1(b)(1) requires the district court to make a finding that

an additional demand was made increasing the price from that

which was originally agreed upon by the illegal alien and the

smuggler.   Although this court has not decided whether

§ 2A4.1(b)(1) requires a finding of an additional increase of

money beyond that already owed in the hostage taking, it is

unnecessary to decide the question in Andrade’s case.     Here,

testimony from illegal aliens harbored by Andrade’s organization

supports the district court’s conclusion that the fees imposed by

Andrade’s organization were increased after the aliens crossed

the border.    Accordingly, the district court did not clearly err

in assigning the six level increase.    See Angeles-Mendoza, 407

F.3d at 746.

     With respect to the increase for failure to release an alien

prior to the expiration of seven days, Andrade argues that

because the aliens did not decide to leave until two or three

days after their abductors stopped feeding them, the detention

did not exceed seven days.    Andrade’s argument lacks merit.     The
                            No. 05-10832
                                 -3-

record contains testimony from one of the aliens harbored by

Andrade, as well as a neighbor in a house adjacent to where the

aliens were kept, that supports the increase pursuant to

§ 2A4.1(b)(4)(B).    Because the record supports the conclusion

that the hostages were detained in excess of seven days from

their detention, the district court did not clearly err in

assigning a one level increase.    See Angeles-Mendoza, 407 F.3d at

746.

       With respect to the vulnerable victim increase pursuant to

§ 3A1.1(b)(1), Andrade argues that the district court erred

because it failed to articulate an unusual vulnerability in the

aliens.    The record reflects that the conditions referenced by

the district court were conditions of smuggling, not personal

characteristics of a vulnerable victim.       See United States v.

Medina-Argueta, 454 F.3d 479, 482-83 (5th Cir. 2006); Angeles-

Mendoza, 407 F.3d 745-48.    Moreover, the district court failed to

articulate specific findings or direct observations of victims to

support the § 3A1.1(b)(1) increase.    Medina-Argueta, 454 F.3d at

482-83.    The district court thus committed clear error in

assigning this increase.    See id. at 483.    Due to this

enhancement error, the district court miscalculated the

appropriate guideline range.    See id.    Without the two level

increase, Andrade’s overall offense level would have been 35.

With a level I criminal history category his correct guideline

range would have been 168 to 210 months of imprisonment.
                           No. 05-10832
                                -4-

Accordingly, the district court’s sentence of 240 months of

imprisonment must be vacated and the case remanded for

resentencing in light of this guideline miscalculation.     See

Angeles-Mendoza, 407 F.3d at 746-48, 54.

     With respect to the leadership role increase, Andrade argues

that there was no evidence that he organized the participants in

the conspiracy.   The record reflects that Andrade recruited

numerous individuals to guard the aliens who were held at the

house in Corsicana, Texas, and to transport the aliens to Dallas,

Houston, and Georgia.   The record further reflects that Andrade

planned these trips and paid the drivers.   Andrade recruited

others to cash money orders from the ransom payments received.

Andrade’s assertion that two other individuals retained

leadership roles is unavailing because proof that the defendant

supervised only one other culpable participant is sufficient to

make the defendant eligible for this enhancement.    See United

States v. Washington, 44 F.3d 1271, 1281 (5th Cir. 1995).      The

district court’s leadership role enhancement was not clearly

erroneous.   See Angeles-Mendoza, 407 F.3d at 746.

     Andrade argues that the district court’s sentencing

increases violate the Ex Post Facto Clause because his offense

was committed prior to the Supreme Court’s decision in Booker.

As Andrade concedes, his argument that the Ex Post Facto Clause

prohibits the district court from applying Booker’s remedial

opinion to his case was squarely rejected by this court in United
                          No. 05-10832
                               -5-

States v. Scroggins, 411 F.3d 572, 575-77 (5th Cir. 2005).   He

raises the argument only to preserve it for Supreme Court review.

     SENTENCE VACATED AND REMANDED FOR RESENTENCING CONSISTENT

WITH THIS OPINION.
