United States v. Garcia-Ortiz , 904 F.3d 102 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-1405
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. GARCÍA-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Rachel Brill for appellant.
John P. Taddei, with whom Margaret A. Upshaw, Attorney, United
States Department of Justice, and Rosa Emilia Rodríguez-Vélez,
United States Attorney, were on brief, for appellee.
September 17, 2018
KAYATTA, Circuit Judge. In his fourth time before our
court, defendant-appellant José García–Ortiz ("García") asks us to
vacate one of his convictions stemming from an armed robbery
committed in Puerto Rico in the year 2000. He argues that his
conviction for felony murder under 18 U.S.C. § 924(j) must be
vacated because armed robbery committed in violation of the Hobbs
Act, 18 U.S.C. § 1951, does not qualify as a "crime of violence"
under 18 U.S.C. § 924(c). He also disputes the imposition of a
restitution order and raises other issues outside the scope of
this court's limited remand in United States v. García-Ortiz, 792
F.3d 184, 186 (1st Cir. 2015) ("García III"). For the following
reasons, we affirm García's conviction and sentence.
I.
As we detailed in United States v. García-Ortiz, 528
F.3d 74 (1st Cir. 2008) ("García I"), García participated in the
armed robbery of a grocery store manager and his security guard
escort as they were delivering around $63,000 in cash to a bank.
Id. at 77. During an exchange of gunfire in the course of the
robbery, the security guard shot and killed one of García's
collaborators. Id. In 2004, a jury convicted García of aiding
and abetting a Hobbs Act robbery (count one),1 aiding and abetting
the use or carrying of a firearm during and in relation to a crime
1 In violation of 18 U.S.C. §§ 2, 1951(a), (b)(1).
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of violence (count two),2 and aiding and abetting felony murder in
the course of using or carrying a firearm in relation to a crime
of violence (count three).3 Id. at 78-79.
In García I, we remanded the case back to the district
court so that it could modify an erroneous life sentence imposed
for count one, for which the statutory maximum was twenty years.
Id. at 85. After resentencing, García appealed again. We then
reversed on double jeopardy grounds the conviction on count two
(aiding and abetting the use or carrying of a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)) because that count was a lesser included part of
count three. United States v. García-Ortiz, 657 F.3d 25, 28–29
(1st Cir. 2011) ("García II"). In García's subsequent
resentencing, the district court imposed, for the first time, a
restitution order. García appealed again, challenging among other
things the imposition of the restitution order. García III, 792
F.3d at 188–94. We affirmed García's convictions and sentences on
the remaining counts (one and three). We nevertheless ordered a
limited remand of "only the restitution portion of his sentence"
because the district court had mistakenly "continued" a
restitution order that it had neglected to impose in the first
instance. Id. at 186, 192. On remand following Garcia III, the
2 In violation of 18 U.S.C. §§ 2, 924(c)(1)(A).
3 In violation of 18 U.S.C. §§ 2, 924(j).
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district court formally imposed a restitution order for $30,000,
a reduction from the initial order of $60,000.
At present, García stands convicted of aiding and
abetting a robbery committed in violation of the Hobbs Act, 18
U.S.C. § 1951(a) (count one) and aiding and abetting felony murder
in the course of using or carrying a firearm in relation to a crime
of violence, in violation of 18 U.S.C. §§ 2, 924(j) (count three).
His current sentence consists of 36 months' imprisonment for count
one to run consecutively with a 216-month term for count three,
plus $30,000 in restitution.
García raises several issues in this most recent appeal.
Claiming a change in controlling law since we decided his third
appeal, he first urges us to find unconstitutionally vague the so-
called "residual clause" of 18 U.S.C. § 924(c)(3)(B). That clause
treats as a "crime of violence" any felony offense "that by its
nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of
committing the offense." García reasons that because
section 924(c)'s residual clause is unconstitutional, and because
his Hobbs Act robbery conviction does not alternatively qualify as
a "crime of violence" under 18 U.S.C. § 924(c)(3)(A)'s so-called
"force clause," his felony murder conviction, which relies on
section 924(c)'s definition of "crime of violence," must be
vacated. Second, García argues that the district court
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impermissibly imposed the restitution order to punish him for his
success on appeal. Finally, in an effort to resuscitate and
reconstitute arguments from previous appeals, García also argues
that the district court should have considered an amendment to the
United States Sentencing Guidelines (the "Guidelines") when
considering whether to apply a mitigating role adjustment, and
should not have imposed the terms of imprisonment consecutively
for counts one and three. For the following reasons, we reject
each of these arguments and affirm García's convictions and
sentence.
II.
A.
García's conviction for felony murder rests on the
proposition that his offense that led to a death -- armed robbery
in violation of the Hobbs Act -- is a "crime of violence" under
section 924(c). At the time of García's conviction, there was
apparently little reason to doubt that such an offense satisfied
the definition of a crime of violence contained in the residual
clause of section 924(c), as García raised no objection in this
vein in any of his prior appeals. García now points to two
subsequent decisions of the United States Supreme Court, Johnson
v. United States, 135 S. Ct. 2551 (2015) ("Johnson II") and
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which García claims
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compel the conclusion that section 924(c)'s residual clause is
unconstitutionally vague.
We usually do not entertain on a subsequent appeal issues
that exceed the scope of our remand mandate. See United States v.
Wallace, 573 F.3d 82, 88 (1st Cir. 2009). Nevertheless, we
recognize an exception when the controlling law materially changes
after the case is remanded. Id. at 89. We will assume that Dimaya
and Johnson II brought about such a change.
Overcoming the limited scope of our remand mandate still
leaves García with another procedural hurdle: His failure to
timely raise before the district court his argument that Hobbs Act
robbery does not qualify under the residual clause of
section 924(c)(3) would normally constitute a forfeiture, limiting
us to plain error review. In similar circumstances, however, we
recently overlooked such a forfeiture where, as here, a defendant
failed to anticipate the Supreme Court overruling itself on a
constitutional principle. See Lassend v. United States, 898 F.3d
115, 122 (1st Cir. 2018) (noting that Johnson II "expressly
overruled" two prior Supreme Court cases "in relation to the [Armed
Career Criminal Act]").
Turning to the merits, we find that any possible
infirmity of section 924(c)'s residual clause provides García with
no exculpation because his Hobbs Act robbery still qualifies as a
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crime of violence under the force clause of section 924(c). Our
reasoning for finding the force clause satisfied follows.
The parties agree that García's conviction concerned
Hobbs Act robbery (not extortion). So, our task at the outset is
to compare the statutory language describing the elements of Hobbs
Act robbery to the definition of a "crime of violence" in the force
clause, section 924(c)(3)(A). See United States v. Faust, 853
F.3d 39, 50–51 (1st Cir.), reh'g denied, 869 F.3d 11 (1st Cir.
2017) (describing this categorical approach). The relevant Hobbs
Act language states:
Whoever in any way or degree obstructs,
delays, or affects commerce or the movement of
any article or commodity in commerce, by
robbery or extortion or attempts or conspires
so to do, or commits or threatens physical
violence to any person or property in
furtherance of a plan or purpose to do
anything in violation of this section shall
[be fined or imprisoned.]
18 U.S.C. § 1951(a). The term "robbery" means:
[T]he unlawful taking or obtaining of personal
property from the person or in the presence of
another, against his will, by means of actual
or threatened force, or violence, or fear of
injury, immediate or future, to his person or
property, or property in his custody or
possession, or the person or property of a
relative or member of his family or of anyone
in his company at the time of the taking or
obtaining.
Id. § 1951(b)(1) (emphasis added). The force clause, in turn,
defines a "crime of violence" as "an offense that is a felony
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and . . . has as an element the use, attempted use, or threatened
use of physical force against the person or property of another."
Id. § 924(c)(3)(A).
It would seem that the "actual or threatened force, or
violence, or fear of injury" required as an element of the robbery
offense satisfies the "use, attempted use, or threatened use of
physical force" element of the definition of a crime of violence
as long as we construe robbery's "force, or violence, or fear of
injury" as requiring the use or threat of "physical force." García
advocates against such a construction. He points out that the
required "physical force" need be "violent force," Johnson v.
United States, 559 U.S. 133, 140 (2010) (Johnson I). As an example
of a robbery without such force, he posits that a person can commit
Hobbs Act robbery by threatening to "devalue some intangible
economic interest like a stock holding or contract right." This,
however, sounds to us like Hobbs Act extortion.4 García points to
no actual convictions for Hobbs Act robbery matching or
approximating his theorized scenario. And the Supreme Court has
counseled that we need not consider a theorized scenario unless
there is a "realistic probability" that courts would apply the law
4"[T]he obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right." 18 U.S.C.
§ 1951(b)(2).
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to find an offense in such a scenario. See Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007).
We also find ourselves unpersuaded that a threat to
devalue an intangible economic interest constitutes the type of
"injury" described in the Hobbs Act's robbery provision -- "by
means of actual or threatened force, or violence, or fear of
injury." 18 U.S.C. § 1951(b)(1). Cf. United States v. Melgar-
Cabrera, 892 F.3d 1053, 1066 (10th Cir. 2018) (putting someone in
"fear of injury" requires the threatened use of physical force).
Applying the canon of noscitur a sociis, the "fear of injury"
contemplated by the statute must be like the "force" or "violence"
described in the clauses preceding it. See Yates v. United States,
135 S. Ct. 1074, 1085 (2015) (stating that canon as "a word is
known by the company it keeps"). This reading and García's
inability to point to any convictions for Hobbs Act robbery based
upon threats to devalue intangible property convince us that Hobbs
Act robbery, even when based upon a threat of injury to property,
requires a threat of the kind of force described in Johnson I,
that is, "violent force . . . capable of causing physical pain or
injury." 559 U.S. at 140.
We likewise reject García's related claim that Hobbs Act
robbery can be committed with a degree of force against a person
falling short of "violent" force. To support this claim, García
imagines a scenario in which a culprit threatens to poison someone,
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and claims that such an action would not involve the use or
threatened use of violent force. But a threat to poison someone
involves the threatened use of force capable of causing physical
injury, and thus does involve violent force. See United States v.
Edwards, 857 F.3d 420, 427 (1st Cir.), cert. denied, 138 S. Ct.
283 (2017) (suggesting that the knowing use of poison to cause
physical harm involves physical force satisfying Johnson I). A
threat to poison another imposes a "fear of injury," 18 U.S.C.
§ 1951(b)(1), to one's person, and Johnson I short-circuits any
argument that placing someone in fear of bodily injury does not
involve the use of physical force, if "force" encapsulates the
concept of causing or threatening to cause bodily injury. 559
U.S. at 140; cf. United States v. Castleman, 134 S. Ct. 1405, 1417
(2014) (Scalia, J., concurring in part and concurring in judgment)
(rejecting the argument that Johnson I "requires force capable of
inflicting 'serious' bodily injury," as opposed simply to "force
capable of causing physical pain or injury, serious or otherwise").
García also posits that perhaps the threat of injury
under a Hobbs Act robbery prosecution might take the form of
threatening to withhold medication from the victim, or threatening
to lock a person up in a car on a hot day. But he fails to identify
any convictions, or even prosecutions, matching these scenarios,
nor do they strike us as realistically probable. See Edwards, 857
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F.3d at 427 (noting the need for a realistic probability of
hypothetical conviction, rather than mere "imaginative thinking").
García next argues that the offense of Hobbs Act robbery
does not require as an element the "intentional threat of physical
force," so it fails to satisfy the mens rea required under
section 924's force clause. We have previously rejected similar
arguments. In United States v. Ellison, the defendant argued that
his conviction for federal bank robbery was not a "crime of
violence" under the force clause of Guidelines section 4B1.2(a)
(the "career offender guideline") because a conviction under the
bank robbery statute5 could be founded upon "intimidation" that
the culprit did not intend -- that is, it could be founded merely
upon behavior a reasonable person would have experienced as
intimidating. 866 F.3d 32, 38 (1st Cir. 2017). We said that
because the federal bank robbery statute does require general
intent, i.e., knowledge on the part of the defendant that his
actions were objectively intimidating, it "has as an element the
5 18 U.S.C. § 2113(a), which reads:
Whoever, by force and violence, or by
intimidation, takes, or attempts to take, from
the person or presence of another, or obtains
or attempts to obtain by extortion any
property or money or any other thing of value
belonging to, or in the care, custody,
control, management, or possession of, any
bank, credit union, or any savings and loan
association . . . [s]hall be fined under this
title or imprisoned not more than twenty
years, or both.
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use, attempted use, or threatened use of physical force against
the person of another," U.S.S.G. § 4B1.2(a), such that a conviction
for federal bank robbery satisfies the mens rea component of the
career offender guideline's force clause. Id. at 38–40; see also
United States v. Frates, 896 F.3d 93, 99 (1st Cir. 2018); cf.
Carter v. United States, 530 U.S. 255, 268–70 (2000)
(characterizing the offense under the federal bank robbery statute
as a general intent crime, i.e., one requiring proof of knowledge
of the actus reus).
The elements of Hobbs Act robbery similarly include "an
implicit mens rea element of general intent -- or knowledge -- as
to the actus reus of the offense." Frates, 896 F.3d at 98 (quoting
Ellison, 866 F.3d at 39); see also United States v. Tobias, 33 F.
App'x 547, 549 (2d Cir. 2002) (summary order) (observing that the
term "robbery," as in 18 U.S.C. § 1951, "implies knowing and
willful conduct"); United States v. Gray, 260 F.3d 1267, 1283 (11th
Cir. 2001) (noting that circuit precedent suggested a "knowing"
mens rea standard for Hobbs Act robbery and rejected a requirement
of specific intent to commit the crime); United States v. Du Bo,
186 F.3d 1177, 1179 (9th Cir. 1999) (knowing or willing conduct is
an "implied and necessary element" of Hobbs Act robbery). We
therefore reject any contention by García that the mens rea
required to commit Hobbs Act robbery is less than that required to
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constitute the "use, attempted use, or threatened use of physical
force." 18 U.S.C. § 924(c)(3)(A).
In a supplemental pro se brief, García next argues that
a conviction for aiding and abetting a Hobbs Act robbery cannot
categorically constitute a "crime of violence" under section 924's
force clause because a defendant can be convicted of aiding and
abetting the crime "even when he has not personally committed all
the acts constituting the elements of the substantive crime aided."
United States v. Sosa, 777 F.3d 1279, 1293 (11th Cir. 2015)
(quoting United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.
2004)). This argument simply states the mandate of 18 U.S.C. § 2,
which makes an aider and abettor "punishable as a principal," and
thus no different for purposes of the categorical approach than
one who commits the substantive offense. See Lassend, 898 F.3d at
132-33.
Having rejected García's arguments, we therefore hold
that because the offense of Hobbs Act robbery has as an element
the use or threatened use of physical force capable of causing
injury to a person or property, a conviction for Hobbs Act robbery
categorically constitutes a "crime of violence" under
section 924(c)'s force clause. We therefore affirm García's
conviction under 18 U.S.C. § 924(j).
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B.
The foregoing conclusion also largely resolves García's
challenge to his restitution order. The Mandatory Victim
Restitution Act, 18 U.S.C. § 3663A(c)(1)(A)(i), required the
district court to impose such an order once García was convicted
of any "crime of violence" as defined in 18 U.S.C. § 16. For the
same reasons we conclude that Hobbs Act robbery qualifies as a
"crime of violence" under section 924(c)'s force clause, we
conclude that Hobbs Act robbery also qualifies as a "crime of
violence" under section 16(a)'s force clause, which similarly
defines "crime of violence" as "an offense that has as an element
the use, attempted use, or threatened use of physical force against
the person or property of another." 18 U.S.C. § 16(a). The only
difference between the two provisions is that section 924's
definition requires that the crime be a felony, while section 16(a)
requires only "an offense," and this minor difference does not
alter our conclusion because Hobbs Act robbery is certainly a
felony.
García's claim that the restitution was a "punitive"
response to his successful appeal is twice mistaken: Restitution
is mandatory under section 3663A, which states that the district
court "shall order . . . restitution" for convictions for crimes
of violence, 18 U.S.C. § 3663A(a)(1), and García offers no specific
allegation, beyond mere assertion, of an improper motive by the
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district court. Moreover, he does not challenge the amount of
restitution required or any other aspect of the order; he just
challenges the fact of its existence. Without passing on the
details or amount of the restitution order, which remain
unchallenged, we cannot say, under any standard of review, that
the district court erred in ordering restitution as required by
Congress.
C.
García next argues that Amendment 794 to the Guidelines,
which modified the application notes for Guidelines § 3B1.2
(authorizing reductions for a defendant's mitigating role in the
offense) and which came into effect in 2015 after García III,
should have caused the district court to "award[] a reduction" in
his Guidelines calculation. While recognizing the limited nature
of the remand in García III, García argued below and suggests now
that Amendment 794's adjustments to the commentary for the
mitigating-role reduction constituted a significant change in
controlling legal authority permitting the district court to
recalculate García's offense level, even though consideration of
the issue exceeded the scope of remand. See United States v. Bell,
988 F.2d 247, 250-51 (1st Cir. 1993) (a district court may, in its
discretion, go beyond the mandate on remand when a party shows a
dramatic change in controlling legal authority, unearths
significant new evidence previously unavailable, or convinces the
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court that blatant error left uncorrected will perpetuate a serious
injustice). The district court recognized that it had "a mandate
as to only one aspect [of García's sentence]," as this court had
"already affirmed [the] other part of the decision" and "sent this
case to [the district court] only for restitution purposes." It
nonetheless stated that even if it were to "consider[] the downward
departure for a minor [role in the offense]," it would "deem[]
that this case does not warrant that." The district court found
no reason to impose the minor-role reduction because, as the court
noted on the record, there was no dispute that García participated
in the crime, the crime resulted in a death, García sustained a
bullet wound in his back, and no co-defendants were arrested or
charged against which García's relative culpability could be
compared. We therefore need not decide whether the district court
erred in treating the modification of the Guidelines commentary
for section 3B1.2 as failing to rise to the level of a "dramatic"
change in controlling legal authority. Any error was harmless.
See generally United States v. Tavares, 705 F.3d 4, 25–26 (1st
Cir. 2013) (applying harmless error analysis to procedural error
in Guidelines range calculation).
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D.
Finally, we dispose of García's argument that the terms
of imprisonment for counts one and three should have run
concurrently, rather than consecutively. We already decided this
issue in García III and affirmed the concurrent imposition of his
sentences. 792 F.3d at 193–94. In García III we noted that the
district court understood that it possessed the discretion to
impose the sentences for counts one and three concurrently or
consecutively, and so exercised this discretion. Id. And we noted
that García failed to identify any authority for the notion that
the district court was required to impose concurrent sentences.
Id. at 194.
García identifies no reason to depart from the law of
the case; he references "no newly discovered evidence or
intervening legal authority that requires us to reconsider, and
there can be no credible claim that our failure to do so would
work a manifest injustice in this case." United States v. Wallace,
573 F.3d 82, 92 (1st Cir. 2009) (internal quotation marks omitted).
We therefore affirm our own prior determination that the district
court was within its discretion to impose consecutive sentences
for counts one and three.
III.
We affirm the convictions and sentence imposed.
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