                Not for Publication in West's Federal Reporter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
             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




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

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


      1
      All citations to the Guidelines herein are to the 2002
Guidelines Manual, the version that applied at Torres-Colon's
sentencing. See PSR, ¶ 11.

                                 -3-
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


                                      -4-
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)2   by

delegating to the probation officer the discretion to determine

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

while on supervised release.3          Although the government conceded

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).




     2
      Both of those provisions mandate that a defendant on
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)."
        3
      Although this condition was not announced at sentencing,
Torres-Colon does not challenge it on right-to-be-present grounds
and concedes that plain-error review applies to his wrongful
delegation claim.

                                      -5-
            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   post-

Antonakopoulos 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.


                                            -6-
            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 fall-

back 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


                                   -7-
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).




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