United States v. Garcia-Ortiz ( 2011 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 09-2325
    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
    Boudin, Selya and Lipez,
    Circuit Judges.
    Rachel Brill on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
    Pérez-Sosa, Chief Appellate Division, and Thomas F. Klumper,
    Assistant United States Attorney, on brief for appellee.
    September 12, 2011
    SELYA, Circuit Judge. Following resentencing, defendant-
    appellant   José   A.   García-Ortiz     challenges   his   conviction   and
    sentence on one of three counts of conviction on the ground that
    the challenged conviction and sentence violate the Double Jeopardy
    Clause. He simultaneously challenges his sentence on another count
    as unreasonably high, castigating the district court for denying
    him a mitigating role adjustment. In a pro se supplementary brief,
    he augments this asseverational array by challenging both the
    legitimacy of his conviction and the sentencing court's failure to
    reduce his sentence based on post-offense rehabilitation.            After
    careful consideration, we affirm in part, vacate in part, and
    remand for resentencing.
    The background facts, taken in a light consistent with
    the jury's verdict, are easily catalogued.            Those who hunger for
    more exegetic detail should consult our earlier opinion in this
    case.   See United States v. García-Ortiz, 
    528 F.3d 74
    , 77-79 (1st
    Cir. 2008).
    On   December   9,   2000,     the   defendant    and   several
    confederates assaulted and robbed two employees of a food warehouse
    in Puerto Rico.     In an ensuing gunfight, one of the robbers was
    killed and the defendant himself was wounded.          Later the same day,
    local police officers recovered the bullet-ridden car that had been
    used by the robbers.     Through DNA analysis, the Federal Bureau of
    -2-
    Investigation    identified     blood   found   inside   the   car    as   the
    defendant's blood.
    Presented with these facts and other evidence, a federal
    grand   jury   indicted   the   defendant.      The   operative      charging
    document, a superseding indictment handed up on September 3, 2003,
    contained three counts.       Count 1 charged the defendant with Hobbs
    Act robbery, see 
    18 U.S.C. § 1951
    (a); count 2 charged him with
    aiding and abetting the unlawful carrying and use of a firearm
    during and in relation to the robbery, see 
    id.
     § 924(c)(1)(A); and
    count 3 charged him with aiding and abetting the death of an
    accomplice in the commission of an armed robbery, see id. § 924(j).
    The defendant maintained his innocence, but a trial jury convicted
    him on all three counts.
    The district court originally sentenced the defendant on
    May 10, 2006 (the details of that sentence are irrelevant here).
    On appeal, we upheld the convictions but vacated the sentence and
    remanded for resentencing.       See García-Ortiz, 
    528 F.3d at 85
    .
    Once the case had been returned to the district court,
    the defendant filed a sentencing memorandum urging, among other
    things, downward adjustments for his mitigating role and his post-
    offense rehabilitation. He later filed a supplementary memorandum,
    arguing that the offense charged in count 2 was a lesser included
    offense of that charged in count 3 and that, therefore, sentencing
    him independently on count 2 transgressed the Double Jeopardy
    Clause.
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    At a resentencing hearing held on August 13, 2009, the
    district court rejected the defendant's lesser included offense
    argument, his request for a mitigating role adjustment, and his
    request          for   a      reduced    sentence      based     on     post-offense
    rehabilitation.            The   court   did,      however,    grant    a   five-level
    reduction of the base offense level (from 43 to 38), concluding
    that a base offense level of 43 would be too severe in the absence
    of any evidence that the defendant intended to kill his accomplice.
    When       all   was   said    and   done,    the   court     imposed   a   240-month
    incarcerative sentence on count 3, a concurrent 50-month sentence
    on count 1, and a consecutive five-year sentence on count 2.1                     The
    court repeatedly stated that, in imposing the sentence, it had
    evaluated the factors enumerated in 
    18 U.S.C. § 3553
    (a).
    This timely appeal followed.          The defendant's claims of
    error are fourfold.            In his counselled brief, he renews his double
    jeopardy and mitigating role arguments. Then, in his supplementary
    pro se brief, he attempts to attack his conviction frontally and to
    reassert his claim of post-offense rehabilitation.2                     We deal with
    these claims of error sequentially.
    1
    This consecutive sentence was required by statute. See 
    18 U.S.C. § 924
    (c)(1)(D)(ii); see also 
    id.
     § 924(c)(1)(A) (directing
    that punishment for a violation of subsection (c) is to be imposed
    "in addition to the punishment provided for" the underlying crime
    of violence).
    2
    The pro se brief also reasserts the claim of entitlement to
    a mitigating role adjustment, but it adds nothing of substance to
    the parallel argument contained in the defendant's counselled
    brief.
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    The defendant's principal plaint is that his conviction
    and sentence on count 2 violate the Double Jeopardy Clause, U.S.
    Const. amend. V, because his conviction on that count is for a
    lesser included offense of the crime for which he stands convicted
    under count 3.     We review this claim de novo.      See United States v.
    Gerhard,   
    615 F.3d 7
    ,   18   (1st   Cir.   2010);   United   States   v.
    DeCologero, 
    530 F.3d 36
    , 71 (1st Cir. 2008).
    "[W]henever a defendant is tried for greater and lesser
    offenses in the same proceeding . . . neither legislatures nor
    courts have found it necessary to impose multiple convictions
    . . . ."   Rutledge v. United States, 
    517 U.S. 292
    , 307 (1996).
    Even so, "[n]ot all multiple punishments run afoul of the Double
    Jeopardy Clause."        United States v. Henry, 
    519 F.3d 68
    , 72 (1st
    Cir. 2008).      Congress may authorize punishment under two separate
    statutes, even if those two statutes proscribe the same conduct.
    Missouri v. Hunter, 
    459 U.S. 359
    , 368-69 (1983); Albernaz v. United
    States, 
    450 U.S. 333
    , 344 (1981); Whalen v. United States, 
    445 U.S. 684
    , 688-89 (1980).
    Here, the elements of section 924(c), collectively, are
    elements of section 924(j); that is, a conviction under section
    924(j) necessarily includes a finding that the defendant violated
    section 924(c).       See 
    18 U.S.C. § 924
    (j).         The only meaningful
    difference is that section 924(j) requires proof of one additional
    fact: the death.     Accordingly, section 924(c) is a lesser included
    offense of section 924(j).         See United States v. Flores, 968 F.2d
    -5-
    1366, 1369, 1371 (1st Cir. 1992). The government now concedes as
    much, and the case law amply supports this concession.                See, e.g.,
    United States v. Catalán-Roman, 
    585 F.3d 453
    , 472 (1st Cir. 2009);
    United States v. Jiménez-Torres, 
    435 F.3d 3
    , 10 (1st Cir. 2006).
    The analysis, however, does not end there.                    Although
    traditionally        legislatures     have      not     authorized    cumulative
    punishment for lesser included offenses, see Rutledge, 
    517 U.S. at 307
    ,   there   is    no    direct   bar    against     such   legislation.       See
    Albernaz, 
    450 U.S. at 344
     ("In determining the permissibility of
    the imposition of cumulative punishment for the crime of rape and
    the crime of unintentional killing in the course of rape, the Court
    recognized that the 'dispositive question' was whether Congress
    intended to authorize separate punishment for the two crimes."
    (quoting Whalen, 
    445 U.S. at 689
    )). In other words, Congress could
    have   authorized      cumulative     punishments       for   convictions    under
    sections 924(c) and 924(j) had it chosen to do so.               See Hunter, 
    459 U.S. at 366-68
    . But the plain language of section 924(j) indicates
    no such desire.           It follows that, in line with the principles
    limned in Rutledge, the conviction and sentence on count 2 must be
    annulled.      See    Rutledge,     
    517 U.S. at 307
       (adhering     to   the
    presumption that Congress intends to authorize only one punishment
    when a defendant is convicted under two different statutes that
    proscribe the same conduct); see also Whalen, 
    445 U.S. at 691-92
    (noting that without a clear indication that Congress intended
    cumulative punishments for the same offense under two different
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    statutes, courts must presume that Congress authorized only one
    punishment).
    We turn next to the defendant's contention that the
    sentencing court should have awarded him a two-level reduction in
    his offense level for his minor role in the offenses of conviction.
    Under the applicable guideline provision, a sentencing court may
    reduce a defendant's total offense level by two levels (and thus
    lower   his    guideline   sentencing    range)   if   it   finds   that   the
    defendant played a minor role in the offense of conviction.                USSG
    §3B1.2(b).     A request for a minor role adjustment is addressed to
    the sound judgment of the sentencing court, and a defendant who
    seeks that balm bears the burden of proving his entitlement to it
    by a preponderance of the evidence.        United States v. Vargas, 
    560 F.3d 45
    , 50 (1st Cir. 2009).      The essential predicate is a showing
    that the defendant is both less culpable than his confederates (or,
    at least, most of them) and less culpable than the mine-run of
    those who have committed similar crimes.          United States v. Ocasio,
    
    914 F.2d 330
    , 333 (1st Cir. 1990).
    Recognizing, as we do, that the determination of a
    defendant's role is factbound, "we review a district court's
    resolution of the facts relative to a minor role adjustment for
    clear error, applications of law to those raw facts somewhat less
    deferentially, and purely legal questions de novo."           United States
    v. Quiñones-Medina, 
    553 F.3d 19
    , 22 (1st Cir. 2009).                Absent an
    error of law — and we discern none here — the battle over a
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    defendant's role in the offense "will almost always be won or lost
    in the district court."     United States v. Graciani, 
    61 F.3d 70
    , 75
    (1st Cir. 1995).
    In this instance, the lower court concluded that the
    defendant had not demonstrated an entitlement to a mitigating role
    adjustment.     In the court's view, the defendant was a "direct
    participant" in the robbery and, as such, did not satisfy either
    prong   of    the   test.   The   proof    of   the   defendant's   direct
    participation in the robbery and gunfight was quite strong — the
    jury's verdict, affirmed on appeal, see García-Ortiz, 
    528 F.3d at 85
    , conduces to that view — and the inference drawn by the district
    court seems eminently reasonable.        See, e.g., Quiñones-Medina, 
    553 F.3d at 22-23
     (upholding denial of mitigating role adjustment where
    facts demonstrated defendant's "full-fledged participation[]" in
    commission of crime); United States v. Olivero, 
    552 F.3d 34
    , 40-41
    (1st Cir. 2009) (similar).
    The defendant reproves the district court for relying on
    the presentence investigation report (PSI Report) to lend credence
    to its finding that he was a direct participant in the crimes of
    conviction.     This attack is easily repulsed.       Where, as here, the
    factual account set out in the PSI Report plausibly supports two
    different sets of inferences, a sentencing court's choice of one
    over the other cannot be deemed clearly erroneous.          United States
    v. Prochner, 
    417 F.3d 54
    , 66 n.9 (1st Cir. 2005); United States v.
    Villarman-Oviedo, 
    325 F.3d 1
    , 16 (1st Cir. 2003).
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    To be sure, the defendant attempts to minimize his role
    by    comparing    himself    to   the   ringleader       of   the   group.     This
    comparison    amounts    to    little      more    than    whistling     past    the
    graveyard.        The fact that some other accomplice may be more
    culpable than the defendant does not necessarily mean that the
    defendant's role in the offense is minor.                  See United States v.
    Soto-Beníquez, 
    356 F.3d 1
    , 53 (1st Cir. 2004); United States v.
    Murphy, 
    193 F.3d 1
    , 8-9 (1st Cir. 1999).
    In a related vein, the defendant contends that the
    failure of the sentencing court to afford him a mitigating role
    adjustment reflects a misapplication of a statute providing that,
    in fashioning a sentence, the court shall consider "(1) the nature
    and    circumstances     of        the   offense     and       the   history     and
    characteristics of the defendant; [and] (2) the need for the
    sentence imposed -- (A) to reflect the seriousness of the offense,
    to promote respect for the law, and to provide just punishment for
    the offense . . . ." 
    18 U.S.C. § 3553
    (a).             The defendant maintains
    that, in this case, the sum total of these factors compels a
    mitigating role adjustment.
    This contention lacks force. The court below stated that
    it had thoroughly explored the section 3553(a) factors.                       Such a
    statement "is entitled to some weight."              United States v. Dávila-
    González, 
    595 F.3d 42
    , 49 (1st Cir. 2010).                Here, moreover, it is
    evident that the court considered the nature and seriousness of the
    offense and the role of the offender.                Viewing the record as a
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    whole, we find no clear error in the court's refusal to calibrate
    the section 3553(a) factors differently.
    To sum up, the defendant fully assented to sharing the
    risks, responsibilities, and rewards of the venture with his
    confederates.      The record supports a finding that he played an
    active role in the robbery and gunfight.               He was, therefore, not a
    minor participant. See United States v. Ocasio-Rivera, 
    991 F.2d 1
    ,
    4 (1st Cir. 1993); Ocasio, 
    914 F.2d at 333
    .
    This    brings     us     to    the    arguments       advanced     in    the
    defendant's pro se brief.            There, he alleges that this court, in
    its earlier opinion, erroneously upheld his conviction.                             This
    allegation is hopeless.
    A court of appeals normally does "not review in a second
    direct   appeal    an   issue    that      underlies     a    previously      affirmed
    conviction."      United States v. Gama-Bastidas, 
    222 F.3d 779
    , 784
    (10th Cir. 2000).       That general rule applies here.              While taking a
    second look at a previously decided issue occasionally may be
    justified, see United States v. Bell, 
    988 F.2d 247
    , 250-51 (1st
    Cir.   1993),   such    an   unusual       step   must       be   predicated    on    an
    exceptional circumstance (say, a material change in controlling
    legal authority, significant new evidence not earlier obtained in
    the exercise of due diligence, or a blatant error in the prior
    decision   that    would,       if   uncorrected,        result      in   a    serious
    injustice).     
    Id. at 251
    .      The defendant has made no showing of any
    such exceptional circumstance here.
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    Finally, the defendant contends that the district court
    should have reduced his sentence based on his rehabilitation
    efforts while incarcerated.        The Supreme Court recently confirmed
    that post-offense rehabilitation may, in appropriate circumstances,
    constitute a basis for a discretionary sentence reduction.             See
    Pepper v. United States, 
    131 S. Ct. 1229
    , 1241 (2011).
    To say that such a reduction is theoretically available
    is not to say that it is compelled.            The instant claim of post-
    offense rehabilitation is not new: the defendant raised the issue
    below, and the district court, at least by implication, rejected
    it.   We have reviewed the proffered evidence of rehabilitation and
    do not find it irresistible.       In the main, judgment calls of this
    sort "are for the sentencing court, not for this court."           United
    States v. Madera-Ortiz, 
    637 F.3d 26
    , 32 (1st Cir. 2011).          So it is
    here.
    There is one loose end.         When a defendant successfully
    challenges one of several interdependent sentences, the proper
    course often is to remand for resentencing on the other (non-
    vacated) counts.      See United States v. Pimienta-Redondo, 
    874 F.2d 9
    , 14-16 (1st Cir. 1989) (en banc).        This is such a case.   We have
    vacated the consecutive sentence (count 2), yet the statutory
    requirement    that     a   part    of   the    sentencing   package   run
    consecutively, see supra note 1, arguably applies to section 924(j)
    (count 3).    See, e.g., United States v. Dinwiddie, 
    618 F.3d 821
    ,
    837 (8th Cir. 2010); United States v. Battle, 
    289 F.3d 661
    , 666,
    -11-
    668-69 (10th Cir. 2002).       In view of these circumstances, we think
    it   likely    that   the   district   court   may   wish   to   unbundle   and
    reconstitute the sentencing package.            See Pimienta-Redondo, 
    874 F.2d at 14
    .      The district court may also wish to ameliorate the
    overall sentence in light of the reduced number of counts on which
    sentence will be imposed.
    We need go no further. For the reasons elucidated above,
    we affirm the defendant's conviction on counts 1 and 3, vacate his
    conviction and sentence on count 2, and remand for resentencing on
    the two remaining counts.
    Affirmed in part, vacated in part, and remanded for resentencing.
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