United States v. Vince Garrido ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-10398
Plaintiff-Appellee,
v.  D.C. No.
1:07-CR-00074-1
VINCE P. GARRIDO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Guam
Frances M. Tydingco-Gatewood
Chief District Court Judge, Presiding
Submitted February 10, 2010*
Honolulu, Hawaii
Filed February 25, 2010
Before: Jerome Farris, Dorothy W. Nelson and
Carlos T. Bea, Circuit Judges.
Opinion by Judge D.W. Nelson
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
3059
3062 UNITED STATES v. GARRIDO
COUNSEL
Myra D. Mossman, Santa Barbara, California, for the
defendant-appellant.
Rosetta L. San Nicolas, Hagatna, Guam, Assistant United
States Attorney, for the plaintiff-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Vince P. Garrido appeals his conviction for Hobbs Act
Robbery in violation of 18 U.S.C. § 1951(a) and using and
carrying a firearm during a crime of violence in violation of
18 U.S.C. § 924(c). Garrido contends that the district court
erred when it admitted lay witness testimony that Garrido car-
ried a gun during the robbery, and when it denied his motion
for judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29 based on the sufficiency of evidence. Garrido
also appeals the district court’s conclusion that he was ineligi-
ble for a reduction of sentence for acceptance of responsibility
because he did not plead guilty to all charges. Although we
affirm the judgment of conviction, we hold that the district
court erred when it concluded that it had no legal authority to
UNITED STATES v. GARRIDO 3063
consider a reduction for acceptance of responsibility after
Garrido failed to plead guilty and contested the charge that he
used and carried a firearm in violation of 18 U.S.C. § 924(c).
Therefore, we vacate the district court’s sentence and remand
for resentencing.
I
Just after 2:00 a.m. on the morning of March 22, 2007,
Vince P. Garrido robbed the House of Liberty game room in
Dededo, Guam. Security Guard Philip Sablan, a childhood
friend, recognized Garrido as he got out of a car, pulled a ski
mask over his face and pointed a gun at Sablan. The driver
also got out of the car and pointed a gun at Sablan. Both Gar-
rido and the driver threatened to kill Sablan. The assailants
proceeded to enter the game room, threaten its occupants, and
order everyone to lie on the floor. The driver handcuffed
Sablan, and Garrido pointed his gun at Joshua Ninete, the
cashier. They took money from the cashier’s booth and then
walked out of the game room. Sablan, Ninete, and four cus-
tomers were present. The customers left before the police
arrived.
Garrido was arrested at a hotel twenty hours after the rob-
bery. He admitted that he committed the robbery and refused
to name the driver that accompanied him during the robbery.
Garrido was indicted for one count of Hobbs Act Robbery in
violation of 18 U.S.C. § 1951(a) and one count of using and
carrying a firearm during a crime of violence in violation of
18 U.S.C. § 924(c)(1)(A)(ii).
At trial, Sablan testified that when Garrido first approached
him, Garrido held a gun within one to two feet of Sablan’s
face. Sablan testified that Garrido’s gun looked like a nine
millimeter gun, the same type of gun that Sablan once owned.
Sablan also testified that while Garrido pointed his gun at the
cashier, the driver pressed a gun against Sablan’s neck, and he
was able to feel the cold metal behind his right ear. Sablan
3064 UNITED STATES v. GARRIDO
testified that both guns were real. Ninete testified that both
Garrido and the driver carried a gun. The gun came within
one foot of his face, and he testified that the gun looked real.
The robbery was captured on videotape and the video was
admitted into evidence. Defense counsel filed timely motions
for judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29. On November 20, 2007, after a four-day trial,
the jury found Garrido guilty of both counts.
At sentencing, Garrido requested a reduction for acceptance
of responsibility. During the sentencing hearing, the district
court noted that, though Garrido made an effort to plea to the
robbery count, he did not enter a guilty plea on the firearm
count and, thus, he did not truthfully admit the conduct com-
prising all of the offenses. The district court stated, “after
reading [United States v. Ginn, 87 F.3d 367 (9th Cir. 1996)]
and the Guidelines Manual, it appears to me that the defen-
dant has to have affirmatively entered a guilty plea.” After
stating that there was no case law indicating otherwise, the
district court concluded “that the acceptance of responsibility
reduction is not allowed.” The district court sentenced Gar-
rido to 130 months in prison.
Garrido brought this appeal. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
II.
[1] We reject Garrido’s argument that the district court
erred under Federal Rules of Evidence 701 and 702 by allow-
ing lay witnesses to testify that Garrido used a gun during the
robbery. “The District Court’s construction or interpretation
of either a statute or the Federal Rules of Evidence, including
whether particular evidence falls within the scope of a given
rule, is subject to de novo review.” United States v. Durham,
464 F.3d 976, 981 (9th Cir. 2006). “Once it has been deter-
mined that challenged evidence falls within the scope of a
UNITED STATES v. GARRIDO 3065
given rule, the District Court’s decision to admit the evidence
is reviewed for abuse of discretion.” Id.
[2] Security guard Philip Sablan and the cashier Joshua
Ninete testified as to their observations of Garrido’s gun. The
testimony was “predicated upon concrete facts within their
own observation and recollection.” Durham, 464 F.3d at 982
(quoting United States v. Skeet, 665 F.2d 983, 985 (9th Cir.
1982)). They did not have to be experts or have training in
weapons identification to testify about what they saw. The
district court did not err by permitting these lay witnesses to
testify that Garrido carried a gun. See United States v. Liles,
432 F.2d 18, 19-20 (9th Cir. 1970).
III.
[3] We also reject Garrido’s claim that there was insuffi-
cient evidence to sustain the conviction under 18 U.S.C.
§ 924(c). We review sufficiency of evidence claims de novo.
United States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999).
We “review this claim to determine whether any ‘rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” United States v. Westerdahl,
945 F.2d 1083, 1088 (9th Cir. 1991) (quoting Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)). “Possession of a toy or rep-
lica gun cannot sustain a conviction under § 924(c).” Id.
[4] The evidence at trial supports the jury’s conclusion that
Garrido had a gun during the robbery. The robbery was cap-
tured by video surveillance showing masked men holding
guns. This two-minute video was entered into evidence. Two
eyewitnesses testified that Garrido had a gun. One of those
witnesses, security guard Philip Sablan, came within one to
two feet of the gun. He was able to describe the gun and testi-
fied that he once owned a gun similar to the weapon Garrido
was holding. This evidence, viewed in the light most favor-
able to the government, is sufficient for a rational juror to
conclude that Garrido used a firearm in furtherance of a crime
3066 UNITED STATES v. GARRIDO
of violence in violation of 18 U.S.C. § 924(c). See Wester-
dahl, 945 F.2d at 1088.
IV.
“We review de novo whether the district court misappre-
hended the law with respect to the acceptance of responsibil-
ity reduction.” United States v. Cortes, 299 F.3d 1030, 1037
(9th Cir. 2002). Whether or not the defendant has accepted
responsibility for his crime is a factual finding that we review
for clear error. United States v. McKinney, 15 F.3d 849, 852
n.6 (9th Cir. 1994).
[5] Garrido asserts that the district court erred when it did
not grant him a two-level reduction for acceptance of respon-
sibility. The United States Sentencing Guidelines provide for
a two-point reduction in a defendant’s offense level where a
defendant clearly demonstrates acceptance of responsibility
for his offense. U.S.S.G. § 3E1.1(a) (2007). To determine
whether a defendant qualifies for a reduction, the district court
may consider whether the defendant “truthfully admitt[ed] the
conduct comprising the offense(s) of conviction, and truth-
fully admitt[ed] or not falsely den[ied] any additional relevant
conduct for which the defendant is accountable . . .” U.S.S.G.
§ 3E1.1, cmt. n.1(a) (2007). This is a factual determination
within the district court’s discretion that “is entitled to great
deference on review.” U.S.S.G. § 3E1.1, cmt. n.5 (2007).
[6] Garrido did not have to plead guilty to be eligible for
a reduction for acceptance of responsibility. See United States
v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002) (“Although a
guilty plea is undoubtedly significant evidence of an accep-
tance of responsibility, if [the defendant] otherwise demon-
strated sincere contrition, he remains eligible for the
reduction.”); McKinney, 15 F.3d at 854 (stating that the defen-
dant was eligible for a reduction even though he pled not
guilty to a conspiracy charge because he accepted responsibil-
ity for his own conduct). The Sentencing Guidelines state that
UNITED STATES v. GARRIDO 3067
the reduction is not intended for a defendant who does not
admit guilt or express remorse until after putting the govern-
ment to its burden of proof at trial. U.S.S.G. § 3E1.1, cmt. n.2
(2007). The Guidelines also state, however, that “[c]onviction
by trial . . . does not automatically preclude a defendant from
consideration for such a reduction” where, for example, the
defendant goes to trial to challenge the constitutionality of a
statute or the application of a statute to her or his conduct. Id.
We have recognized that this example is not exhaustive. McK-
inney, 15 F.3d at 853 (“Although the application notes list
only this single example of a case where a defendant can
receive the reduction despite going to trial, the quoted passage
itself makes clear that the example was not intended to be
exhaustive.”). If Garrido manifested the appropriate contri-
tion, the reduction is available. Id. (“[I]n appropriate circum-
stances the reduction is . . . available in cases in which the
defendant manifests genuine contrition for his acts but none-
theless contests his factual guilt at trial.”).
[7] In this case, Garrido confessed to committing the rob-
bery, and tried to plead guilty to that charge. The district court
may take that into consideration. It can also consider that Gar-
rido did not plead guilty and put the government to its burden
of proof at trial on both counts of conviction. Cortes, 299 F.3d
at 1038. It appears that the district court did not reach the fac-
tual determination, and concluded instead that the fact that
Garrido had not pled guilty to all charges was dispositive. We
now turn to whether Garrido was ineligible for a reduction for
acceptance of responsibility because he challenged the factual
elements of the second charge, using and carrying a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c).
V.
The Sentencing Guidelines instruct courts to first identify
groups of closely related counts and then determine the
offense level applicable to each group. U.S.S.G. § 3D1.1(a)
(2007). Then, those groups are themselves grouped to deter-
3068 UNITED STATES v. GARRIDO
mine a combined offense level (§§ 3D1.1(a)(3), 3D1.4) that
will be used to determine the sentence applicable to each
count (§ 3D1.5). However, where a statute specifies a term of
imprisonment to be imposed, and that term is to run consecu-
tively to any other term, that count is not to be grouped with
other counts. U.S.S.G. § 3D1.1(b)(1) (2007). Counts that are
grouped are treated as a single offense for the purposes of the
guidelines. U.S.S.G. § 3D, introductory cmt. (2007).
18 U.S.C. § 924(c) is specifically identified as a charge that
is not to be grouped. U.S.S.G. § 3D1.1, cmt. n.2 (2007). This
is because § 924(c) specifies a mandatory minimum sentence
of seven years’ imprisonment that is to run consecutively to
any other term of imprisonment. Thus, under the guidelines,
it is not considered the same offense of conviction as a rob-
bery charge. Instead, in the instant case the § 924(c) convic-
tion contributes zero points to the offense level and no
combined guidelines sentence is calculated. As a practical
matter, when a defendant accepts responsibility for § 924(c),
the defendant does not receive a reduction in his sentence for
that count.
[8] Citing United States v. Ginn, 87 F.3d 367 (9th Cir.
1996), the government contends that Garrido had to accept
responsibility for each count in the indictment to qualify for
a reduction in his sentence for acceptance of responsibility. In
Ginn, the defendant pled guilty to one robbery but contested
the charge of a second robbery, forcing the government to
meet its burden of proof at trial. Ginn, 87 F.3d at 368. The
defendant asserted that he was entitled to a reduction in his
sentence for acceptance of responsibility for one of the rob-
beries. Id. at 370. We held that “a defendant is not entitled to
an adjustment when he does not accept responsibility for all
of the counts of which he is convicted.” Id. We reasoned that
“[b]ecause an adjustment for acceptance of responsibility is
made only after the combined offense level is computed, the
Sentencing Guidelines do not contemplate calculating accep-
tance of responsibility for each offense.” Id. at 371 (citations
UNITED STATES v. GARRIDO 3069
and quotations omitted) (emphasis added). In Ginn, the rob-
beries could be grouped, and only after the combined offense
level was calculated could the court consider an adjustment
for acceptance of responsibility. Id. We concluded that per-
mitting Ginn to “receive a benefit on his offense level for both
robberies even though he accepted responsibility for only one
robbery” would be “contrary to the intent of the Sentencing
Guidelines.” Id. Unlike the defendant in Ginn, the defendant
here sought a reduction for the robbery charge, which could
not be grouped with the § 924(c) charge that he contested.
Therefore, no combined offense level was ever calculated,
and it was possible to calculate acceptance of responsibility
for each separate offense.
[9] Our sister circuits have held that a district court retains
discretion to apply the acceptance of responsibility reduction
when the defendant seeks the reduction for one charge after
contesting the factual elements of a § 924(c) charge. See
United States v. Williams, 344 F.3d 365, 381 (3rd Cir. 2003)
(“[W]here the counts are not grouped and credit may be
granted to them separately, there is no error when the District
Court grants the reduction as to a count that the defendant did
not challenge.”); United States v. Hargrove, 478 F.3d 195,
200 (4th Cir. 2007) (“[U]nder the terms of U.S.S.G. § 3E1.1,
the defendant must only accept responsibility for the grouped
guidelines counts in order to be eligible for the reduction in
offense level for that particular ‘offense.’ ”); United States v.
Wattree, 431 F.3d 618, 622-23 (8th Cir. 2005) (“Where a
defendant pleads guilty to all counts that are grouped for sen-
tencing, contesting guilt only on non-grouped offenses, the
guidelines do permit a two-level acceptance-of-responsibility
reduction, based on the totality of the circumstances.”).
[10] We join our sister circuits in holding that, where a
defendant accepts responsibility for all counts that are
grouped under U.S.S.G. §§ 3D1.1-3D1.5, that defendant is
eligible for the § 3E1.1 reduction for those counts, even if the
defendant has not accepted responsibility for other counts
3070 UNITED STATES v. GARRIDO
which, under § 3D1.1(b), are excluded from grouping.
Although Garrido challenged the 18 U.S.C. § 924(c) charge,
such challenge does not disqualify him from the § 3E1.1 sen-
tence reduction for the 18 U.S.C. § 1951 Hobbs Act Robbery
charge, because that charge was not “grouped” with the
§ 924(c) charge. See U.S.S.G. § 3D1.1(b). Thus, under the
guidelines, each sentence was calculated separately, and the
§ 3E1.1 reduction applies separately.
Here, the district court retained discretion to consider
whether Garrido qualified for a reduction. Garrido did not
have to plead guilty as long as he manifested the appropriate
contrition. Even if he did not accept responsibility for the
§ 924(c) charge, that did not automatically disqualify Garrido
for a reduction on the robbery charge, and the district court
had the legal authority to consider Garrido’s eligibility for a
reduction of sentence for acceptance of responsibility for the
robbery.
[11] The district court implied that it could not consider
Garrido’s eligibility for a reduction because Garrido did not
plead guilty and because he contested the § 924(c) charge. It
indicated both that Garrido “did not truthfully admit the con-
duct comprising all of the offenses,” and, citing the Ginn case,
“that the defendant has to have affirmatively entered a guilty
plea.” To the extent that the district court believed that Gar-
rido had to affirmatively enter a guilty plea on all of the
offenses to be eligible for a reduction, it committed legal
error. We therefore find it appropriate to vacate the district
court’s order and remand to the district court for resentencing.
Upon resentencing, the district court should take into account
the appropriate considerations pursuant to the sentencing
guidelines. U.S.S.G. § 3E1.1, cmt. n.1(a) (2007). We express
no view on the merits of Garrido’s motion.
The government’s motion to strike portions of Garido’s
opening brief and any related filings is denied as moot.
UNITED STATES v. GARRIDO 3071
AFFIRMED in part; SENTENCE VACATED and
REMANDED.