United States v. Castro-Vazquez

United States Court of Appeals
For the First Circuit
No. 13-1508
UNITED STATES,
Appellee,
v.
ADEMIR CASTRO-VAZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Barron, Selya, and Dyk,*
Circuit Judges.
Susan Z. Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Carmen M. Márquez-Marín, Assistant United States
Attorney, were on brief, for appellee.
Sharon L. Beckman, with whom Larissa Warren and Graham D.
Welch were on brief, for defendant-appellant.
September 4, 2015
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. Ademir Castro-Vasquez pled guilty to
being a prohibited person in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). On appeal he challenges his conviction
and the 78-month sentence imposed by the United States District
Court for the District of Puerto Rico. We affirm Castro-Vazquez’s
conviction, but we vacate and remand for reconsideration of the
sentence because the district court erred in its approach to
applying a ten-level sentencing enhancement under the United States
Sentencing Guidelines ("guidelines") § 2K2.1(a)(2).
I.
On September 26, 2012, acting on an anonymous tip, Puerto
Rico Police Department officers were investigating the presence of
suspicious persons at a gas station in Trujillo Alto, Puerto Rico.
They observed Castro-Vazquez, allegedly pacing nervously,
accompanied by another man, Allen Miranda-Melendez, filling a
container with gas for a car parked nearby at the side of a rural
road. One officer observed a bulge on Castro-Vazquez’s waist.
After stopping the two men at the parked car, Castro-Vazquez was
asked to lift up his shirt, which he refused to do. One of the
officers then lifted up Castro-Vazquez’s shirt, and saw a firearm
on his waist, at which point both men were arrested.
Castro-Vazquez was charged with being a convicted felon
in possession of a firearm under 18 U.S.C. § 922(g)(1). Miranda-
Melendez was charged with conspiring with Castro-Vazquez to commit
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robbery under 18 U.S.C. § 1951(b)(1), though Castro-Vazquez was not
himself charged with such a conspiracy.
At his arraignment on October 17, 2012, Castro-Vazquez
pled not guilty. The magistrate judge ordered that the parties
would have "7 days for discovery and 14 days thereafter to file any
motions." At a status conference held November 7, 2012, the
district court set trial for December 3, 2012, and refused the
defense counsel’s request for additional time. On November 30,
2012, the defense counsel filed a motion to continue the trial for
one week. The court instead granted a one-day continuance to
December 4.
Two days before trial was scheduled, Miranda-Melendez’s
attorney filed a motion to suppress certain incriminating
statements that Miranda-Melendez had allegedly made. One day
before trial was scheduled, Castro-Vazquez’s attorney also filed a
motion to suppress evidence, including the firearm and a mobile
phone with pictures of the defendant carrying the firearm, seized
at the time of Castro-Vazquez’s arrest. Castro-Vazquez alleged
that this evidence should be suppressed because it was the result
of an unlawful warrantless search, seizure, and arrest in violation
of the Fourth Amendment. In opposing the motion to suppress, the
government raised no timeliness objection to the motion. Instead,
the government argued that the officers had reasonable suspicion to
stop and frisk Castro-Vazquez, and probable cause to arrest him.
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The district court denied both defendants’ motions, stating that,
with respect to Castro-Vazquez’s motion, the court "will not
entertain a motion to suppress filed on the eve of trial." The
court also stated that Miranda-Melendez and Castro-Vazquez should
make their suppression arguments "at trial and as part of the Rule
29 motion." Id.
Miranda-Melendez chose to take the district court’s
recommended course. He went to trial and requested suppression of
the incriminating statements. The district court suppressed the
statements and dismissed his case apparently because, in the
absence of the statements, there was insufficient evidence.
Castro-Vazquez, however, took a different tack. On the morning
trial was to begin and before the jury was empaneled, at about
10:30 A.M., Castro-Vazquez’s counsel asked for ten minutes for a
bench conference, during which she renewed the motion to suppress.
The court again refused to hear the motion, noting that counsel
"filed it hours before trial would start" and that the court "will
not consider a late motion" because "[m]otions to suppress have to
be timely filed." The court also stated that it would allow the
suppression issue to be raised at trial, expressly stating that the
point was "preserv[ed]." The bench conference for both defendants
lasted until about 11:00 A.M. About a half hour later, Castro-
Vazquez requested a change-of-plea hearing. At the colloquy, the
district court asked Castro-Vazquez a number of questions to ensure
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that he understood the charges and was pleading voluntarily. When
asked whether he was satisfied with his attorney’s work, Castro-
Vazquez apparently responded in the affirmative but with what the
district court characterized as a "grimace." The district court
repeated the question and told Castro-Vazquez he did not have to
plead guilty, but Castro-Vazquez noted he was not being forced to
plead guilty, and the court accepted the plea.
Castro-Vazquez was sentenced on March 22, 2013. At his
sentencing hearing, the district court sentenced him to 78 months,
using as a guideline range 63 to 78 months, based on a total
offense level of 22 and a criminal history category of IV. The
total offense level of 22 was calculated by relying on Section
2K2.1 of the Sentencing Guidelines, which provides a prior felony
enhancement for unlawful possession of a firearm. The base offense
level is increased from 14 to 24 "if the defendant committed any
part of the instant offense subsequent to sustaining at least two
felony convictions of either a crime of violence or a controlled
substance offense." U.S.S.G. § 2K2.1(a)(2). The total offense
level was 22 because Castro-Vazquez was also given a two-level
reduction for his acceptance of responsibility. The district court
did not state which of Castro-Vazquez’s prior convictions were
relied on to arrive at the guideline range, relying instead on the
presentence report. The report stated that the base offense level
was calculated pursuant to Section 2K2.1(a)(2), and listed seven
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prior convictions (with three separate concurrent sentences) for
burglary, robbery, and certain drug-related crimes, but the report
also did not state which of those prior convictions were relied on
for the prior felony enhancement. Castro-Vazquez entered no
objections to the contents of the report (though as discussed below
there is a question whether there was verification that Castro-
Vazquez "read and discussed" the report with counsel, see Fed. R.
Crim. P. 32(i)(1)(A)). During sentencing, the district court
recited some facts concerning Castro-Vazquez’s prior criminal
activity alleged in the report, and noted that the sentences for
his prior convictions had been concurrent and too lenient.
II.
Castro-Vazquez challenges the voluntariness of his
unconditional guilty plea. Although both Castro-Vazquez and the
government suggest the standard of review is de novo, in fact we
have yet to decide whether, when a defendant challenges the
voluntariness of a plea on grounds other than a Rule 11 error,
review is de novo even if defendant did not object below. See
United States v. Rodríguez-Morales, 647 F.3d 395, 398 (1st Cir.
2011); Sotirion v. United States, 617 F.3d 27, 34 n.6 (1st Cir.
2010). We need not decide the issue now since we conclude that,
even under a de novo standard of review, Castro-Vazquez’s guilty
plea has not been shown on this record to have been involuntary,
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reserving for a Section 2255 proceeding the question of ineffective
assistance of counsel.
We first address Castro-Vazquez’s complaint that the
district court erred in refusing to decide the motion to suppress
before trial. Federal Rules of Criminal Procedure Rule 12(b)(3)
requires that a motion to suppress "must be raised by pretrial
motion," Fed. R. Crim. P. R. 12(b)(3) (2007), "[b]efore [t]rial,"
id. However, the court "may, at the arraignment or as soon
afterward as practicable, set a deadline for the parties to make
pretrial motions." Id. R. 12(c)(1). Either way, the court "must
decide every pretrial motion before trial unless it finds good
cause to defer a ruling." Id. R. 12(d).
Here, the magistrate judge at arraignment had set a
deadline of "7 days for discovery and 14 days thereafter to file
any motions." Relying on his assertion that discovery in fact was
not completed within the seven-day period and was not completed
until December 3, 2012, Castro-Vazquez avers that his December 3,
2012, motion to suppress was well within the fourteen-day post-
discovery deadline. The only effective deadline, he says, was thus
the default deadline in Rule 12(b)(3): that pretrial motions to
suppress must be filed "[b]efore [t]rial."
"Before trial" in Rule 12(b)(3) means before the jury is
empaneled. The main purpose of Rule 12(d)’s requirement that the
district court hear pretrial motions before trial is that "[w]ere
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a defendant able to delay such a motion until trial, he could
prevent the government from appealing" because jeopardy would have
attached at trial. United States v. Barletta, 644 F.2d 50, 54–55
(1st Cir. 1981). And it is "[o]nce a jury has been sworn [in that]
jeopardy attaches, [and] the government loses its right to appeal
an adverse ruling on suppression." United States v. Nuñez, 19 F.3d
719, 723 (1st Cir. 1994) (quoting United States v. Taylor, 792 F.2d
1019, 1025 (11th Cir. 1986)); see also United States v. Dittus, 453
F.2d 1335, 1336 (3d Cir. 1972) (holding that a renewed motion for
suppression at the time of jury selection was untimely); United
States v. Allied Stevedoring Corp., 241 F.2d 925, 931 (2d Cir.
1957) (holding that motion to suppress delayed until "40 jurors had
been assembled, and the prosecution was about to open" was
untimely). Here Castro-Vazquez filed a motion to suppress the day
before trial began. He argues that because the district court did
not set a deadline requiring the suppression motion to be filed at
an earlier time, the motion was timely, and the district court
erred in finding it to have been untimely. Whether the district
court erred in not deciding the motion before trial and whether
Castro-Vazquez had standing to complain of that error are questions
that we need not address. That is so because, even if not deciding
the motion before trial was error, Castro-Vazquez waived this
argument by pleading guilty unconditionally.
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It is well-established that an unconditional guilty plea
results in the waiver of errors preceding the plea. As the Supreme
Court held in Tollett v. Henderson, 411 U.S. 258 (1973), "[w]hen a
criminal defendant has solemnly admitted in open court that he is
in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the
guilty plea." Id. at 267. This court has "assiduously followed
the letter and spirit of Tollett, holding with monotonous
regularity that an unconditional guilty plea effectuates a waiver
of any and all independent non-jurisdictional lapses that may have
marred the case’s progress up to that point." United States v.
Cordero, 42 F.3d 697, 699 (1st Cir. 1994). So long as the
unconditional guilty plea is knowing and voluntary, the Tollett
rule applies. See Tollett, 411 U.S. at 267 (the defendant "may
only attack the voluntary and intelligent character of the guilty
plea").1
1
Castro-Vazquez cites dicta in United States v. Gaffney,
469 F.3d 211, 215 (1st Cir. 2006), stating that constitutional
violations that are not "independent" of a plea but rather
"intertwined with the plea itself" might "evade[] Tollett’s
strictures." Id. at 215. But independent of counsel’s potential
ineffective assistance, the district court’s possible violation of
Rule 12 would not rise to the level of a constitutional violation.
In addition, the mere "fact of a pending trial does not serve to
make an eve-of-trial plea involuntary." United States v. White,
734 F.3d 843, 849 (8th Cir. 2013); see also Doe v. Woodford, 508
F.3d 563, 569–72 (9th Cir. 2007) (two hours to consider a plea
bargain did not render plea involuntary).
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There is no basis to conclude on this record that the
plea was unknowing or involuntary. Castro-Vazquez does not allege
the district court coerced or misinformed him in his change of plea
hearing. See, e.g., Mack v. United States, 635 F.2d 20, 25 (1st
Cir. 1980). Instead, he argues that the guilty plea was
involuntary because of his counsel’s ineffectiveness. His theory
appears to be that the suppression motion was a strong one (as
allegedly evidenced by the success of his co-defendant’s motion)
and that Castro-Vazquez’s counsel was ineffective because she
failed to counsel Castro-Vazquez to go to trial and pursue the
suppression motion.
In such circumstances, this court will not review a claim
of ineffective assistance of counsel on direct appeal. See United
States v. Vázquez-Larrauri, 778 F.3d 276, 293–94 (1st Cir. 2015)
("As a general rule, this court does not review ineffective
assistance of counsel claims on direct appeal . . . except[] where
the critical facts are not genuinely in dispute and the record is
sufficiently developed . . . ." (internal quotation marks,
citations omitted)); United States v. Torres-Rosario, 447 F.3d 61,
64 (1st Cir. 2006) ("Sixth Amendment attacks on counsel are rarely
allowed on direct appeal because they require findings as to what
happened and, as important, why counsel acted as he did —
information rarely developed in the existing record."); United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (same).
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Castro-Vazquez relies on United States v. Mercedes-De La
Cruz, 787 F.3d 61 (1st Cir. 2015), as permitting a direct appeal
challenge to counsel’s effectiveness, but that case is
distinguishable. There, in a "rare case," id. at 63, this court
reviewed an ineffective assistance of counsel claim on direct
appeal because it was clear that the defense attorney simply "never
filed a motion to suppress on behalf of [the defendant], much less
a timely one," id. at 67, even though the motion would "quite
likely" have been meritorious, id. at 68, and his co-defendants,
who had less plausible grounds for doing so, did file timely
motions, id. at 67. But here, there is a question whether the
suppression motion Castro-Vazquez did file was in fact timely. And
further, Castro-Vazquez’s claim involves highly fact-dependent
questions as to whether Castro-Vazquez was adequately counseled to
plea when his suppression motion could be considered at trial.
"An ineffective assistance of counsel claim that requires
further factual determinations should be brought through a
collateral proceeding in district court under 28 U.S.C. § 2255."
United States v. Reyes, 352 F.3d 511, 517 (1st Cir. 2003); see also
Mala, 7 F.3d at 1063 ("When faced with similar situations in
comparable cases, we have routinely dismissed the relevant portion
of the appeal without prejudice to the defendant's right to
litigate his ineffective assistance claim through the medium of an
application for post-conviction relief."). In this case, the
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ineffective assistance of counsel claim is sufficiently complex
that the district court may find it desirable to appoint counsel if
Castro-Vazquez petitions for Section 2255 relief. See Mala, 7 F.3d
at 1063–64 (directing district court to appoint counsel for Section
2255 proceeding because constitutional claim was colorable,
factually and legally complex, and incarcerated appellant was
hampered in his ability to investigate undeveloped facts).
III.
We now turn to issues concerning Castro-Vazquez’s
sentencing. Castro-Vazquez objects to the prior felony enhancement
pursuant to Section 2K2.1 of the guidelines, which resulted in a
total offense level of 22. As explained above, the district court
apparently derived the prior felony enhancement from the
presentence report’s description of Castro-Vazquez’s prior
convictions. Section 2K2.1 provides for a prior felony enhancement
"if the defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of either
a crime of violence or a controlled substance offense." U.S.S.G
§ 2K2.1(a)(2). Castro-Vazquez contends that his prior convictions
did not satisfy the requirement of at least two crime-of-violence
or controlled-substance offenses.
Below, Castro-Vazquez failed to object to the sentence
imposed, so our review is for plain error. See United States v.
Serrano-Mercado, 784 F.3d 838, 844–45 (1st Cir. 2015). Castro-
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Vazquez must thus demonstrate "(1) that an error occurred (2) which
was clear or obvious and which not only (3) affected [his]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
Before the district court, the government relied on
several prior convictions listed in the presentence report,
including robbery, burglary, and drug convictions.2 On appeal,
however, the government does not argue that Castro-Vazquez’s drug
convictions qualify as predicate offenses and relies only on the
robbery and burglary convictions. Under this approach, if either
the burglary or robbery conviction failed to qualify as a "crime of
violence," there would have been no basis for an enhancement.
The guidelines define the term "crime of violence" in
Section 2K2.1(a)(2) as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that —
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
2
Also listed in the report were illegal appropriation and
aggravated damages convictions with sentences served concurrently
with the burglary conviction. The parties apparently agree that
those are not relevant to this appeal.
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U.S.S.G. § 4B1.2(a).3 Thus, to qualify as a crime of violence, a
prior conviction must contain an element of the threat, use, or
attempted use of force, be one of the "enumerated offenses," such
as burglary of a dwelling, or fall within what is known as the
"residual clause" because it involves conduct that "presents a
serious potential risk of physical injury." See United States v.
Ramirez, 708 F.3d 295, 300 (1st Cir. 2013). In order to determine
whether a prior conviction counts as a crime of violence, we apply
the framework outlined by the Supreme Court in Descamps v. United
States, 133 S. Ct. 2276 (2013). See United States v. Ramos-
González, 775 F.3d 483, 504–05 (1st Cir. 2015).4 We look to the
elements of the prior convictions as defined by the relevant
statute — not to the particular facts underlying the convictions,
see Descamps, 133 S. Ct. at 2283 — and we compare those to the
elements of the crimes described in the guideline’s definition.
If the statute is indivisible, we apply a "categorical
approach." Id. (citing Taylor v. United States, 495 U.S. 575
(1990)). Under that approach, if the statute has the same elements
3
The term is defined in Section 2K2.1 by cross-reference
to the term as it is used in Section 4B1.1, part of the career
offender guidelines.
4
The definition of "crime of violence" is "nearly
identical" to the definition of "violent felony" in the Armed
Career Criminal Act, so courts "consistently have held that
decisions construing one of these phrases generally inform the
construction of the other." Serrano-Mercado, 784 F.3d at 843 n.4
(internal quotation marks, citation omitted).
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as the "generic" crime as defined in the guidelines, then the prior
conviction serves as a predicate offense under the guidelines. Id.
If the elements of the indivisible statute sweep more broadly than
the generic crime, then the conviction cannot count as a predicate
offense, "even if the defendant actually committed the offense in
its generic form." Id. (emphasis added).
If, but only if, the statute is "divisible" — that is, it
comprises multiple, alternative versions of a crime not all of
which qualify as a predicate offense — then we apply a "modified"
categorical approach, whereby a limited set of "Shepard" documents,
such as the charging documents, plea agreements, plea colloquies,
jury instructions, and verdict forms, may be consulted to determine
which of a statute’s alternative elements formed the basis of the
prior conviction. Id. at 2283–84 (citing Shepard v. United States,
544 U.S. 13, 17, 25–26 (2005)). However, the modified approach
"retains the categorical approach’s central feature: a focus on the
elements, rather than the facts, of a crime." Id. at 2285.
The district court did not at the time of sentencing have
the benefit of the Supreme Court’s Descamps decision. Nonetheless,
we conclude that the district court’s approach may have been
inconsistent with the Descamps framework.
With respect to Castro-Vazquez’s burglary conviction,
Castro-Vazquez argues that it cannot be a "crime of violence"
because burglary under Puerto Rico law does not have an "unlawful
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entry" requirement as does generic burglary under Section 4B1.2.
See Taylor, 495 U.S. at 598. In that respect, Castro-Vazquez
suggests, the Puerto Rico burglary statute is much like the
California one that the Supreme Court considered in Descamps, in
which the Court held that the lack of an unlawful entry element
made the California statute overbroad under the categorical
approach. See 133 S. Ct. at 2285–86 (noting the "simple
discrepancy between generic burglary and the [state] crime" is that
the "former requires an unlawful entry along the lines of breaking
and entering").
The Puerto Rico burglary statute states that it is
unlawful for "[a]ny person who enters a dwelling . . . with the
purpose of committing any crime involving an unlawful taking or a
felony." P.R. Laws Ann. Tit. 33, § 4831. The statute is thus
indivisible with respect to entry — it clearly does not contain
multiple, alternative elements of separate crimes with respect to
the type of entry required.5 See Descamps, 133 S. Ct. at 2285 &
5
This is not to say the statute is indivisible in all
respects. The "place" element of the statute, for instance,
recites alternative places where burglary can occur. See P.R. Laws
Ann. Tit. 33, § 4831. Similarly, in Descamps, the California
burglary statute at stake was indivisible with respect to entry,
133 S. Ct. at 2282, 2285, but also listed in the alternative many
different places burglary could occur. See Cal. Penal Code Ann.
§ 459 (West 2010) (providing that a "person who enters" a list of
alternative locations with intent to commit certain crimes is
guilty of burglary).
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n.2. Descamps made it clear that the "focus [is] on the elements,
rather than the facts, of a crime." 133 S. Ct. at 2285.
Here, we are concerned that the district court’s approach
was inconsistent with Descamps’ stricture because the district
court relied on the factual allegations of the presentence report
rather than addressing whether the Puerto Rico burglary statute
requires unlawful entry as an element of the offense. The
government in its briefs on appeal makes no effort to square the
approach below with Descamps’ approach, which requires determining
whether the Puerto Rico burglary statute requires unlawful entry as
an element.
It is true, of course, that plain error review presents
a high bar, and the failure to follow the Descamps framework would
not necessarily constitute plain error. See Serrano-Mercado, 784
F.3d at 845–46. However, as we also explained in Serrano-Mercado,
the plain error standard can be overcome where there has been
intervening legal authority that makes clear that the district
court’s approach was inconsistent with the intervening legal
authority. See Serrano-Mercado, 784 F.3d at 849; United States v.
Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) (holding that
district court commits prejudicial plain error in characterizing a
conviction as a crime of violence if, at the time of appeal,
intervening law makes clear that a conviction does not necessarily
qualify categorically as a crime of violence); Henderson v. United
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States, 133 S. Ct. 1121, 1127–28 (2013) (plain error assessed
according to law at time of appeal, even if prior law was merely
unsettled).
At the time of Castro-Vazquez’s sentencing on March 22,
2013, the Supreme Court had not yet decided Descamps (decided June
20, 2013). After sentencing, Descamps established that in the case
of an indivisible statute, such as the burglary statute here, the
facts surrounding a particular prior conviction cannot qualify it
as a predicate offense if the statute itself sweeps too broadly.
See United States v. Fish, 758 F.3d 1, 14 (1st Cir. 2014) (noting
that Descamps "clarified the ornate rules" of this approach, in
particular clarifying that "the only way a facially overbroad
statute can qualify as a[] . . . predicate" is via the modified
categorical approach in the case of divisible statutes). The law
in this circuit before Descamps was not entirely settled as to
whether facts alleged in a presentence report could be used to show
a prior conviction is a predicate offense. See United States v.
McVicar, 907 F.2d 1, 2 (1st Cir. 1990) (relying on conduct alleged
in a presentence report and what robbery "typically involves,"
concluding that robbery was a crime of violence); see also United
States v. Martinez, 762 F.3d at 135–36 (noting that the statement
in United States v. Davis, 676 F.3d 3, 9 & n.5 (1st Cir. 2012),
that the facts recited in a presentence report, if relied on, would
"almost certainly be sufficient to show" harmful battery was
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"likely no longer the correct standard" after Descamps). Here, the
record does not show the district court made any inquiry at all
into the elements of the Puerto Rico burglary statute, which is
enough in these circumstances to overcome the limitations otherwise
imposed by plain error review. See Torres-Rosario, 658 F.3d at
116–17.
We address one other argument concerning Castro-Vazquez’s
burglary conviction.6 Castro-Vazquez contends that his burglary
conviction was a misdemeanor rather than a felony punishable by
imprisonment for over one year, thus preventing the conviction from
being a predicate offense. See U.S.S.G. § 2K2.1, Application Note
1 (defining "felony conviction" for purposes of Section 2K2.1 as
"an offense punishable by death or imprisonment for a term
exceeding one year"). His argument seems to be that he was
convicted for attempted burglary rather than attempted aggravated
burglary. He argues that, because the former is not an offense
punishable under Puerto Rico law with imprisonment for over one
year, it is a misdemeanor, while the latter, which is punishable by
6
Castro-Vazquez argues in a footnote that the location
elements of the Puerto Rico burglary and aggravated burglary
statutes (requiring a person to enter "a dwelling, building or
other construction or structure or its dependencies or annexes,"
P.R. Laws Ann. Tit. 33, § 4831, and, in the case of aggravated
burglary, that such entry be while the building is "inhabited," id.
§ 4832) are also overbroad. We deem these cursory arguments
waived. See Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38,
60 n.1 (1st Cir. 1999) ("We have repeatedly held that arguments
raised only in a footnote or in a perfunctory manner are waived.").
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a term exceeding a year, would be a felony. See P.R. Laws Ann.
Tit. 33, § 4831 (burglary "shall incur a misdemeanor"); id. § 4832
(aggravated burglary "shall incur a third degree felony"); id.
§ 4644 (misdemeanors punishable by imprisonment for up to ninety
days; third-degree felonies punishable by imprisonment between
three and eight years). Even if we were to conclude that any error
in characterizing the burglary conviction as a felony were not
plain error, we think the district court should consider this issue
on remand. Here, "we have already concluded that the judgment
should be remanded to correct [another error], and we have broad
authority to shape a remand in the interests of justice." United
States v. Merric, 166 F.3d 406, 412 (1st Cir. 1999) (citing 28
U.S.C. § 2106).
As for Castro-Vazquez’s arguments with respect to the
robbery convictions, we conclude again that a remand is required in
the light of Descamps. Puerto Rico’s robbery statute criminalizes
a person’s "unlawfully tak[ing] personal property belonging to
another in the immediate presence of said person and against
his/her will by means of violence or intimidation." P.R. Laws Ann.
Tit. 33, § 4826. Castro-Vazquez contends that neither of the
alternative crimes established by this apparently divisible robbery
statute — criminalizing robbery either by "violence" or by
"intimidation" — qualifies as a crime of violence. According to
Castro-Vazquez, intimidation is defined under Puerto Rico law to
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include mere moral or psychological pressure, and violence is
defined under Puerto Rico law to include the slightest use of
force. Either way, the prior offense would fall short of the
guidelines requirement that the offense include an element of
"physical force," which is defined as "violent force — that is,
force capable of causing physical pain or injury to another
person," Martinez, 762 F.3d at 133 (quoting Johnson v. United
States, 559 U.S. 133, 140 (2010)); see also Johnson, 559 U.S. at
140 ("violent" in ACCA connotes a "substantial degree of force").7
Here, just as with the burglary conviction, the district court made
no inquiry at all into the elements of either type of robbery under
Puerto Rico law. Thus, given that Descamps clarified that even the
"modified" categorical approach "retains the categorical approach's
central feature: a focus on the elements, rather than the facts, of
a crime," Descamps, 133 S. Ct. at 2285, we follow Torres-Rosario
in holding that a remand is required to consider these issues in
the light of Descamps. If the district court concludes that only
one of the divisible crimes of the robbery statute constitutes a
crime of violence, it will be required to determine whether proper
7
"Robbery" is also listed as an example of a "crime of
violence" in the guidelines. See U.S.S.G. § 4B1.2, Application
Note 1. That does not change our conclusion. See United States v.
Ramirez, 708 F.3d 295, 302 n.8 (1st Cir. 2013) (noting that we
apply the categorical approach to determining whether a prior
conviction falls within a generic definition of an enumerated
offense, including those listed in application notes (citing United
States v. Walker, 595 F.3d 441, 445–46 (2d Cir. 2010) ("robbery" in
Section 4B1.2, Application Note 1))).
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Shepard materials establish that Castro-Vazquez was convicted of
that offense. See Torres-Rosario, 658 F.3d at 117.
We decline on appeal to accept the government’s
invitation, presented for the first time in its Rule 28(j) letter,
to decide whether unlawful entry was an element of the Puerto Rico
burglary statute, whether the burglary offense was a felony or
misdemeanor, and whether and to what extent violent physical force
is an element of both divisible parts of the Puerto Rico robbery
statute. See Ruskai v. Pistole, 775 F.3d 61, 66–67 (1st Cir. 2014)
(Rule 28(j) "should not be used to introduce new arguments"). Upon
remand, the district court should address in the first instance
such questions. If on remand, the district court concludes that
the guidelines calculation was erroneous and that an enhancement
was not warranted, resentencing will be required. See United
States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013). Here, there is
a "reasonable likelihood ‘that, but for the error, the district
court would have imposed a different, more favorable sentence.’"
United States v. Ortiz, 741 F.3d 288, 293–94 (1st Cir. 2014)
(quoting United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st
Cir. 2006)).
It remains to consider the residual clause in the
guidelines’ definition of "crime of violence," allowing a prior
conviction to be a predicate offense where it "otherwise involves
conduct that presents a serious potential risk of physical injury
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to another." U.S.S.G. § 4B1.2(a). Intervening authority has
called the residual clause into question. In Johnson v. United
States, 135 S. Ct. 2551 (2015), the Supreme Court struck down a
residual clause with identical language in the Armed Career
Criminal Act ("ACCA") as unconstitutionally vague. See 135 S. Ct.
at 2555–56, 2560 (holding that the residual clause in the ACCA’s
definition of "violent felony" is unconstitutional). The structure
and the language of the two residual clauses are substantially the
same. See United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014).
We do not decide whether the residual clause of the guidelines
fails under Johnson. See United States v. Tichenor, 683 F.3d 358,
363–65 (7th Cir. 2012) (rejecting vagueness challenge to the "crime
of violence" definition because the guidelines are merely
advisory). We hold only that if on remand the government relies on
the residual clause (it has disclaimed such reliance on appeal),
the constitutional issue must be addressed.
Moreover, although the government does not argue on
appeal that Castro-Vazquez’s prior drug convictions count as
"controlled substance offenses" under Section 4B1.2(b) of the
guidelines, this should not be treated as a waiver, and the
government, if it so chooses, should be permitted to attempt to
establish on remand that those offenses qualify under the
guidelines as predicate offenses. See Torres-Rosario, 658 F.3d at
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117 ("On remand, the government remains entitled to establish the
ACCA designation . . . .").
Finally, while Castro-Vazquez also argues on appeal that
the district court did not abide by Rule 32's requirement that the
court "verify" the defendant "read and discussed" the presentence
report with his counsel, see Fed. R. Crim. P. 32(i)(1)(A), we do
not address this issue here, since we assume any such potential
error will be corrected on remand. In addition, Castro-Vazquez’s
argument that the district court erred in sentencing him at the top
of the guidelines range may become moot in light of the remand.
See Ramos-González, 775 F.3d at 509. We do not now address the
issue.
CONCLUSION
We affirm Castro-Vazquez’s conviction, but we remand for
further proceedings as to his sentence consistent with this
opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDED.
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