United States v. Garcia-Ortiz , 657 F.3d 25 ( 2011 )

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
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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
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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,
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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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