                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 27, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-20538
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFREDO RIVERA-BENITO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-446-1
                      --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Alfredo Rivera-Benito pleaded guilty to three counts of

harboring illegal aliens for financial gain, three counts of

transporting illegal aliens for financial gain, and one count of

conspiracy to commit hostage taking.   The district court

sentenced Rivera to 210 months in prison and a five-year term of

supervised release.

     Rivera challenges the six-level enhancement to his base

offense level under U.S.S.G. § 2A4.1(b)(1) on the basis that a


     *
       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this opinion should not be published and is not precedent except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. 04-20538
                                -2-

ransom demand is an element of the hostage-taking offense under

18 U.S.C. § 1203 and that the enhancement thus constituted

impermissible double counting.   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).      A ransom demand is

not an element of the offense under 18 U.S.C. § 1203.     Because

the fact of a ransom demand is not taken into account by the base

offense level set forth for that offense at § 2A4.1(b)(1), there

was no impermissible double counting.

     Rivera also challenges the § 2A4.1(b)(1) enhancement on the

grounds that the smuggled aliens agreed that, upon their arrival

in the United States, they would be held until their smuggling

fees had been paid.   The fact that Pantaleon’s detention may have

been consensual at its inception is not dispositive of the issue

whether she was held captive.    See United States v. Carrion-

Caliz, 944 F.2d 220, 226 (5th Cir. 1991).     For the purposes of 18

U.S.C. § 1203(a), it is sufficient that Pantaleon was later

detained or confined against her will.     Id.

     The record in this case reveals that Pantaleon was told that

she would owe $1,300 to the people who received her in the United

States as a fee for helping her get across the border.     Once

Pantaleon arrived in Houston, Texas, however, that $1,300 border-

crossing fee was increased to $4,000.     Rivera and his co-

defendants did not release Pantaleon until they received the
                            No. 04-20538
                                 -3-

$4,000.   Pantaleon was kept in a house completely enclosed by

locked burglar bars.   She testified that she wanted to run away

from the house but that she could not.     Based on these facts,

Pantaleon’s detention clearly ceased to be consensual, and she

was confined against her will.   The district court therefore did

not clearly err in applying the six-level enhancement under

§ 2A4.1(b)(1).

     Rivera also challenges the two-level enhancement under

§ 2A4.1(b)(3) on several grounds.   Citing Crawford v. Washington,

541 U.S. 36 (2004), Rivera first argues that the district court’s

reliance on testimony from another proceeding denied him his

Sixth Amendment rights under the Confrontation Clause.     “[T]here

is no Confrontation Clause right at sentencing.”     United States

v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999).     Nothing in

Crawford indicates that its holding is applicable to sentencing

proceedings.   Accordingly, Rivera’s Crawford-based argument lacks

merit.

     Rivera next argues that the district court’s reliance on

testimony from a co-defendant’s sentencing proceeding violated

his due process rights under the Fifth Amendment because he was

not given notice of such intended reliance or an opportunity to

contest the testimony.   To the extent that the district court

relied on matters outside the PSR without notifying Rivera in

advance, there was error.   See United States v. Townsend, 55 F.3d

168, 172 (5th Cir. 1995).   Any such error was harmless, however,
                             No. 04-20538
                                  -4-

because, despite Rivera’s assertions to the contrary, the

district court did not clearly err in finding that the statements

attributed to Pantaleon on the PSR were sufficient to support the

§ 2A4.1(b)(3) enhancement.    See United States v. De La Rosa, 911

F.2d 985, 993 (5th Cir. 1990).    Rivera’s mere assertion that

Pantaleon’s deposition testimony was more reliable than

information contained in the PSR did not suffice to meet his

burden of showing that the information contained in the PSR was

materially untrue.   See United States v. Vela, 927 F.2d 197, 201

(5th Cir. 1991).   The district court did not clearly err in

applying the two-level enhancement under § 2A4.1(b)(3).

     Rivera also appeals his sentence on the basis that the

enhancements applied by the district court violated his Sixth

Amendment rights pursuant to United States v. Booker, 125 S. Ct.

738 (2005).   As Rivera failed to raise this claim in the district

court, our review is for plain error.       See United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.

filed, No. 04-9517 (U.S. Mar. 31, 2005).      In order to establish

plain error, Rivera must show: (1) error, (2) that is clear or

obvious, and (3) that affects substantial rights.       Id.; United

States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005).

     Rivera meets the first two prongs of the plain error test

because the enhancements were based on facts found by the

district court, which constitutes obvious error after Booker.

See Infante, 404 F.3d at 394.    Nevertheless, Rivera’s claim fails
                           No. 04-20538
                                -5-

at the third step of the plain error test because he has not

shown that the error affected his substantial rights.   There is

no indication in the record that the district court would have

imposed a lower sentence if the guidelines had been advisory.

See id. at 394-95.   As Rivera has not satisfied the third prong

of the plain error test, he is not entitled to resentencing.

     Accordingly, the judgment of the district court is AFFIRMED.
