[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2241
UNITED STATES,
Appellee,
v.
DANIEL JOSEPH MARAVILLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Daniel J. Maravilla on brief pro se.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, on brief for appellee.
April 6, 2001
Per Curiam. Daniel Joseph Maravilla has appealed
from the district court's denial of his motion to correct
his sentence pursuant to former Fed. R. Crim. P. 35(a).1 We
affirm.
I.
On September 10, 1982, Maravilla, a United States
customs officer, along with Rafael Dominguez, a fellow
customs officer, kidnaped and murdered a money courier, who
had arrived in San Juan from the Dominican Republic.
Maravilla and Dominguez stole the approximately $700,000 in
cash and checks that the courier had intended to deposit in
a San Juan bank. As of September 10, Maravilla and
Dominguez had less than $100 each in bank accounts. Their
salaries amounted to $34,000 and $37,000 per year
respectively. However, on the evening of September 10, they
purchased, with cash, first class plane tickets and flew to
Miami, carrying a briefcase containing $265,000 in cash.
1Maravilla was convicted in 1987 for an offense committed in
1982. Therefore, former Rule 35(a) applicable to offenses
committed prior to November 1, 1987 pertains. That rule
provided:
The court may correct an illegal sentence at
any time and may correct a sentence imposed
in an illegal manner within the time
provided herein for the reduction of
sentence.
They paid a friend $12,000 to take $220,000 of the cash to
Panama and deposit it in numbered, unnamed bank accounts.
In the weeks following, they made additional generous bank
deposits, made unusually expensive purchases and gave
generous gifts. In February 1983, Maravilla flew to
Colombia with $53,700 in cash. When stopped, he claimed not
to know that he was supposed to declare cash, despite the
fact that Maravilla's own customs job involved interviewing
persons who made declarations of cash. He later told three
different false stories about the origins of this cash.
Eventually, Maravilla was arrested, tried, and
convicted of depriving an inhabitant of the United States of
his civil rights (in violation of 18 U.S.C. § 242), robbery
(in violation of 18 U.S.C. § 1951(a)), transporting in
interstate commerce more than $5,000 knowing it to have been
stolen (in violation of 18 U.S.C. § 2314), concealing or
disposing of more than $5,000 which has moved in or is a
part of interstate or foreign commerce, knowing it to have
been stolen (in violation of 18 U.S.C. § 2315), lying to the
FBI (in violation of 18 U.S.C. § 1001), and obstruction of
justice (in violation of 18 U.S.C. § 1503).
On direct appeal, this court reversed Maravilla's
§ 242 conviction, the victim not being an inhabitant of the
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United States. United States v. Maravilla, 907 F.2d 216
(1st Cir. 1990). On remand, the district court restructured
the sentences on the remaining convictions to run
consecutively, rather than concurrently. Maravilla appealed
from his resentencing, arguing that the restructuring was
unconstitutionally vindictive. We rejected that argument
and affirmed the sentences. United States v. Dominguez, 951
F.2d 412 (1st Cir. 1991), cert. denied, 504 U.S. 917 (1992).
Maravilla then began a series of pro se attacks on
his convictions and sentences. He filed a motion for a new
trial, pursuant to Fed. R. Crim. P. 33. The district court
denied the new trial motion (a decision that we affirmed on
appeal). United States v. Maravilla, 7 F.3d 219 (1st Cir.
1993) (per curiam) (TABLE), cert. denied, 512 U.S. 1219
(1994). Thereafter, Maravilla moved to vacate his sentence,
pursuant to 28 U.S.C. § 2255. The district court denied the
§ 2255 motion. Maravilla v. United States, 901 F. Supp. 62
(D. P.R. 1995). We affirmed. Maravilla v. United States,
95 F.3d 1146 (1st Cir. 1996) (per curiam) (TABLE), cert.
denied, 520 U.S. 1202 (1997). Next, Maravilla filed two
applications in this court, seeking leave to file a second
or successive § 2255 motion in the district court. We
denied both applications. Maravilla v. United States, No.
-4-
98-8014 (1st Cir. Jun. 19, 1998); Maravilla v. United
States, No. 98-8021 (1st Cir. Sept. 8, 1998).
Then, Maravilla filed a habeas petition, pursuant
to 28 U.S.C. § 2241 in the United States District Court for
the Middle District of Florida. That habeas petition was
dismissed. Maravilla v. Parks, No. 99-108-Civ-Oc-10C (M.D.
Fla. Apr. 27, 1999). Maravilla resubmitted his habeas
petition, but that petition was denied, as an impermissible
attempt to circumvent the requirements imposed on second or
successive § 2255 motions by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"). Maravilla v. Parks,
No. 99-231-Civ-Oc-10C (M.D. Fla. Aug. 20, 1999). The
Eleventh Circuit Court of Appeals affirmed this ruling.
Maravilla v. Parks, 220 F.3d 592 (11th Cir. 2000) (TABLE).
Most recently, Maravilla filed a motion, pursuant
to former Criminal Rule 35(a), in the United States District
Court for the District of Puerto Rico. He argued that the
robbery, transporting stolen money, and concealing or
disposing of stolen money counts were multiplicitous and
could not constitutionally support consecutive sentences
under the Double Jeopardy Clause. He also contended that
his conviction and sentence for lying to the FBI in
violation of 18 U.S.C. § 1001 must be vacated in light of
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United States v. Gaudin, 515 U.S. 506 (1995), because the
element of materiality had been determined by the trial
judge, not the jury. As noted at the outset, the district
court denied the Rule 35(a) motion and Maravilla appealed.
II.
As a threshold matter, Maravilla argues that former
Rule 35(a), which authorized the district courts to correct
an illegal sentence "at any time," see supra note 1,
effectively permits him to avoid any time bar or the
requirements that AEDPA imposes on second or successive §
2255 motions. If applicable, former Rule 35(a) might
arguably also permit Maravilla to avoid the procedural
default rules that pertain to a § 2255 motion,
notwithstanding Maravilla's failure previously to raise his
current claims in a timely fashion either on direct appeal
or in his first § 2255 motion. 2 See Callanan v. United
2
Maravilla's current claim that his consecutive sentences
for his § 1951(a), § 2314, and § 2315 convictions are
unconstitutional under the Double Jeopardy Clause is similar,
but not identical, to his claim on appeal after resentencing
that the restructured consecutive sentences were
unconstitutionally vindictive. See United States v. Dominguez,
951 F.2d at 414-18. Both claims that Maravilla raised in his
motion under former Rule 35(a) motion were first raised in his
application for leave to file a second or successive § 2255
motion, which we rejected on the ground that the issues did not
satisfy the statutory requirements for the requested
authorization. Maravilla v. United States, No. 98-8014 (1st
Cir. Jun. 19, 1998). Maravilla then sought to raise his current
double jeopardy claim in the habeas petition filed in the
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States, 364 U.S. 587, 589 n.3 (1961) ("Rule 35 is available
to correct an illegal sentence when the claim is based on
the face of the indictment even if such claim had not been
raised on direct appeal"); United States v. Landrum, 93 F.3d
122, 125 (4th Cir. 1996) (reciting that the procedural
default rules applicable to § 2255 motions do not pertain to
motions brought under former Rule 35(a)).
With respect to his conviction for lying to the FBI
in violation of 18 U.S.C. § 1001, former Rule 35(a) is of no
aid to Maravilla. "Former Rule 35(a) is limited to the
correction of an illegal sentence; it does not cover
arguments that the conviction is itself improper, for such
arguments must be raised under § 2255." United States v.
Canino, 212 F.3d 383, 384 (7th Cir. 2000). Notwithstanding
his attempt to focus on the 5 year consecutive sentence
imposed, Maravilla's objection is that his conviction under
§ 1001 is improper under Gaudin. The district court,
therefore, correctly denied Maravilla's Rule 35(a) motion
with respect to the Gaudin-based claim.
To the extent that Maravilla seeks to vacate his
§§ 2314 and 2315 convictions, former Rule 35(a) is
federal district court in Florida. See Maravilla v. Parks, No.
99-231-Civ-Oc-10C (M.D. Fla. Aug. 20, 1999).
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unavailable, for the reasons already addressed. Maravilla's
filing has some flavor that what he is saying is that he
cannot be constitutionally convicted both of robbery under
the Hobbs Act (§ 1951) and either transporting the stolen
money (§ 2314) and/or concealing or disposing of that stolen
money (§ 2315). However, Maravilla's filing could also be
read to include a claim that, apart from whether he could be
convicted under both § 1951 and § 2314 or § 2315,
constitutionally he cannot be sentenced and, in the
particulars of this case, sentenced to consecutive terms,
under both § 1951 and § 2314 or § 2315. In other words, the
§§ 2314 and 2315 convictions could stand but each 10 year
consecutive term of imprisonment for the §§ 2314 and 2315
convictions must be vacated, leaving only the 20 year term
of imprisonment for the robbery conviction. This latter
type of contention conceivably could be an appropriate basis
for review under former Rule 35(a). See Hill v. United
States, 368 U.S. 424, 430 (1962) (remarking that the
imposition of multiple terms for the same offense could
constitute an illegal sentence under former Rule 35(a)).
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III.
Assuming without deciding, that Maravilla may
appropriately raise this double jeopardy claim in a motion
under former Rule 35(a) and is not barred from doing so now,
it is nevertheless clear that the claim has no merit. We
need not decide whether our review is de novo or for an
abuse of discretion. Compare United States v. Gruenberg, 53
F.3d 214, 215 (8th Cir. 1995) (per curiam) (abuse of
discretion) with United States v. Thompson, 979 F.2d 743,
744 (9th Cir. 1992) (de novo). There was neither an abuse
of discretion nor an error of law in the district court's
denial of Maravilla's Rule 35(a) motion.
Maravilla has offered no authority to support his
contention that the offenses of interstate transportation
and concealment/disposing of stolen money merge into the
offense of the interference with commerce by robbery, so as
to bar the imposition of consecutive sentences for these
offenses. Maravilla points to cases that hold that one
cannot be separately punished for stealing property and
receiving that same stolen property. See, e.g., Heflin v.
United States, 358 U.S. 415, 419-20 (1959) (finding no
congressional intent to punish multiple aspects of the same
criminal act). But, Maravilla was not convicted of stealing
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and receiving the same stolen money. Although he
characterizes his conduct as a single, if extended, criminal
act -- he views his criminal conduct as simply the theft of
money moving in interstate commerce -- he clearly committed
several discrete criminal acts.
Maravilla was convicted of robbing the money
courier (§ 1951), transporting that stolen money in
interstate or foreign commerce (§ 2314) and concealing or
disposing of money that had moved in or was a part of
interstate or foreign commerce, knowing that money to have
been stolen (§ 2315). Certainly, these statutes pass the
Blockburger test. Each offense requires proof of a fact
which the other does not. Blockburger v. United States, 284
U.S. 299, 304 (1932).
As interfaced with the facts of this case: Section
1951 requires proof of the obstruction of the movement of
the courier's cash and checks in commerce, by robbery.3 It
3Sections 1951(a) and (b), in the version current in 1981,
provided, in pertinent part:
(a) Whoever in any way or degree obstructs,
delays, or affects commerce or the movement
of any article or commodity in commerce, by
robbery ... shall be fined not more than
$10,000 or imprisoned not more than twenty
years, or both.
(b) As used in this section–
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does not require proof that Maravilla also either
transported the money in interstate commerce or
concealed/disposed of stolen money that had moved in or was
part of interstate or foreign commerce. Section 2314
requires proof that Maravilla had transported the stolen
money in interstate or foreign commerce, knowing the money
to have been stolen.4 It does not require that Maravilla,
himself, steal the money or that he conceal/dispose of the
money that had moved in or was part of interstate or foreign
commerce. And, although Maravilla did, in fact, himself,
commit the robbery, he did more in "transporting" the stolen
money in interstate commerce than simply, as he would have
it, remove it from the courier's possession and carry it
away from the crime scene. Section 2315 requires proof that
Maravilla concealed or disposed of the money that had moved
(1) The term "robbery" means the
unlawful taking or obtaining of personal
property from the person ... against his
will, by means of ... violence....
4Section 2314, in the version current in 1981, provided, in
pertinent part:
Whoever transports in interstate or
foreign commerce any ... securities or
money, of the value of $5,000 or more,
knowing the same to have been stolen ...
Shall be fined not more than $10,000 or
imprisoned not more than ten years, or both.
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in or was part of interstate or foreign commerce, knowing it
to have been stolen. 5 While it does not require that
Maravilla, himself, steal the money or transport it in
interstate commerce, Maravilla, did, in fact, steal the
money and transport it in interstate commerce, and he did
more than simply remove the money from the courier's
possession and transport it in interstate commerce.
The facts of this case evidence discrete criminal
acts that support separate convictions and sentences.
Maravilla robbed the money courier (in violation of § 1951);
later that evening, he transported $265,000 of the stolen
cash from San Juan to Miami (in violation of § 2314) and
there paid a friend $12,000 to conceal/dispose of $220,000
of the stolen cash in numbered, unnamed bank accounts in
Panama (in violation of § 2315).
5
Section 2315, in the version current in 1981, provided, in
pertinent part:
Whoever ... conceals ... or disposes of
any ... securities, or money of the value of
$5,000 or more, ... moving as, or which are
a part of, or which constitute interstate or
foreign commerce, knowing the same to have
been stolen...
Shall be fined not more than $10,000 or
imprisoned not more than ten years, or both.
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Contrary to Maravilla's contention, transporting
in interstate commerce stolen money and concealing/disposing
of stolen money that has moved in or is part of interstate
or foreign commerce are not lesser included offenses of
robbery under the Hobbs Act. There was no double jeopardy
violation in the district court's imposition of consecutive
sentences for these convictions.
The district court's denial of the motion filed
under former Rule 35(a) is affirmed.
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