Ramirez-Burgos v. United States

United States Court of Appeals
For the First Circuit

No. 01-1012

JULIO RAMIREZ-BURGOS,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

James M. Fox for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H. S. Garcia, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, were on brief for appellee.

December 10, 2002
 STAHL, Senior Circuit Judge. A jury convicted petitioner

Julio Ramirez-Burgos of aiding and abetting two carjackings in

violation of 18 U.S.C. § 2 and § 2119, and of using a weapon during

the commission of a violent crime in violation of 18 U.S.C. §

924(c). Although Count One of the superseding indictment charged

Ramirez with violating 18 U.S.C. § 2119(2), the trial court did not

instruct the jury to determine whether the victim of the carjacking

suffered serious bodily injury as a result of the carjacking.

Ramirez appeals the district court's denial of his § 2255 petition,

in which he claimed that his sentence must be vacated because the

Supreme Court's ruling in Jones v. United States, 526 U.S. 227

(1999), requires that the jury determine the element of serious

bodily injury. We affirm.

I.

We review this case for the fourth time.1 In 1995 a

federal grand jury indicted Ramirez and Daniel Montañez-Rosa2 on

two counts of aiding and abetting each other in two carjackings, 18

U.S.C. §§ 2 and 2119, and on one count of using a firearm during

the commission of a violent crime, 18 U.S.C. § 924(c). The

1
The factual details of the two carjackings and rape are set
forth in United States v. Ramirez-Burgos, No. 96-1298, 1997 WL
268695 (1st Cir. May 21, 1997).
2
Montañez pled guilty before trial and cooperated with the
prosecution.

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defendants were charged under the 1992 version of 18 U.S.C. §

21193, which provided, in relevant part:

Whoever, possessing a firearm as defined in
section 921 of this title, takes a motor
vehicle . . . [from] another by force and
violence or by intimidation, or attempts to do
so, shall--
(1) be fined . . . or imprisoned not more than
15 years or both
(2) if serious bodily injury (as defined in
section 1365 of this title) results, be fined
under this title or imprisoned not more than
25 years, or both. . . .

* * * *

As is apparent from the text of the statute, the default maximum

sentence for a carjacking is fifteen years, id. § 2119(1), but if

the carjacking results in "serious bodily injury," the maximum

statutory penalty is increased to twenty-five years, id. § 2119(2).

Count One charged Ramirez and Montañez with aiding and

abetting each other in taking, while armed, a motor vehicle from

Nancy Rosado-Santiago

by force, violence or intimidation, to wit: by
forcing her to remain in the car, at gunpoint,
and forcibly assaulting her sexually,
resulting in serious bodily injury, as defined
in [18 U.S.C.] section 1365, namely bodily
injury which involves a substantial risk of

3
In 1994, Congress amended the statute, substituting "with the
intent to cause death or serious bodily harm" for "possessing a
firearm as defined in [18 U.S.C.] section 921." In Holloway v.
United States, 526 U.S. 1 (1999), where the Supreme Court
considered intent to commit bodily injury, it interpreted the later
version of the statute. As Ramirez's habeas petition does not
present any independent claim that the jury had to find intent,
Holloway is not relevant to our analysis here.

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 death and extreme physical pain. All in
violation of 18 United States Code, Sections
2119(2) and 2.

The trial court read the entire indictment to the jury, including

the above-quoted language. Despite that reading, the court did not

instruct the jury under § 2119(2). Rather, its instruction

referred solely to the elements set forth in the first paragraph of

§ 2119. The court, however, did provide the jury for its

deliberation a copy of the superseding indictment, which included

Count One, quoted above. Trial counsel did not object to the jury

instructions as given.4

The jury returned a verdict of guilty on all three

counts. The trial evidence showed that, before relinquishing

control over Rosado and her vehicle, one of the carjackers forced

her to undress and then raped her. In both written exceptions

filed in response to the Pre-Sentence Investigative Report and at

4
Indeed, in support of a motion in limine seeking to exclude
all references to the sexual assault of Rosado, Ramirez argued that
serious bodily injury was a sentencing factor and not an element of
the offense. In a written order entered on June 15, 1995, the
district court denied Ramirez's motion on the ground that sexual
assault "constituted part of the element of the offense for which
defendant was charged in Count I of the Indictment."
At the time of Ramirez's convictions, this Court had not yet
decided whether serious bodily injury was an element or a
sentencing factor of § 2119(2). Ramirez's jury verdict was
rendered on June 21, 1995. Shortly thereafter but before his
sentencing, this Court held that serious bodily injury was a
sentencing factor, not an element of the offense, on October 12,
1995. See United States v. Rivera-Gomez, 67 F.3d 993, 1000 (1st
Cir. 1995), overruled by Jones v. United States, 526 U.S. 227
(1999).

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the sentencing hearing, Ramirez objected to a recommended four-

point enhancement for serious bodily injury, under U.S.S.G. §

2B3.1(B)(3), being applied to his conviction for the carjacking of

Rosado. He claimed that there was insufficient evidence to support

a finding of serious bodily injury to support the enhancement.

However, he did not argue that the maximum available sentence for

the carjacking of Rosado was fifteen years because of the failure

to instruct the jury to determine, beyond a reasonable doubt, that

Rosado suffered serious bodily injury.

The district court flatly rejected Ramirez's objection,

noting that the jury had found Ramirez guilty under § 2119(2). He

then determined that there was sufficient evidence of serious

bodily injury to enhance Ramirez's sentence by four points under

U.S.S.G. § 2B3.1(B)(3). In the end, the court sentenced Ramirez to

a term of 360 months as to Counts One and Two, to be served

concurrently, and 60 months as to Count Three, to be served

consecutively to Counts One and Two.

Ramirez, pro se, appealed his convictions and sentence.

But he assigned no error to the court's jury instructions, nor did

he claim that he was deprived of due process or of his right to

jury trial because no "serious bodily injury" instruction was

provided to the jury. In fact, relying on our decision in United

States v. Rivera-Gomez, 67 F.3d 993, 1000 (1st Cir. 1995), Ramirez

challenged the denial of his motion in limine on the ground, inter

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alia, that serious bodily injury was a sentencing factor. We

affirmed his convictions, but vacated his sentence and remanded for

resentencing because the sentence imposed by the district court

exceeded the maximum sentence available under the statute. United

States v. Ramirez-Burgos, No. 96-1298, 1997 WL 268695 (1st Cir. May

21, 1997); see also 18 U.S.C. § 2119(2) (providing for a term of

300 months for carjacking that results in serious bodily injury).

On remand, the district court resentenced Ramirez to 300 months as

to Count One, but erroneously entered an identical concurrent 300-

month term for Count Two, which lacked serious bodily injury and

thus had a statutory maximum of fifteen years under § 2119(1).

Ramirez again appealed, this time with appointed counsel, who

raised a number of objections to the convictions and sentence.5

Moreover, appointed counsel did not raise the claim now raised in

the § 2255 petition.

On March 24, 1999, one day after the filing of Ramirez's

reply brief, the Supreme Court decided Jones v. United States, 526

U.S. 227 (1999). In Jones, the Supreme Court held that subsections

(1)-(3) of § 2119 are "three separate offenses . . . [with]

5
We declined to review the newly brought challenges to his
convictions as they were outside the scope of the issues made
relevant by the intervening appellate decision and remand. United
States v. Ramirez-Burgos, No. 98-1995, 1999 WL 525916, at *3-4 (1st
Cir. May 18, 1999) (citing United States v. Ticchiarelli, 171 F.3d
24, 30-33 (1st Cir. 1999) (holding that under law-of-the-case
doctrine, when resentencing after a remand, district court should
consider only new arguments or new facts made newly-relevant by the
intervening decision of the court of appeals)).

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distinct elements, each of which must be charged by indictment,

proven beyond a reasonable doubt, and submitted to a jury for its

verdict." Id. at 251-52. Ramirez did not raise the Jones issue at

trial, nor during the pendency of the second appeal, in a

supplemental brief or a 28j letter.

Two months after the Jones decision and without reference

to it, we vacated Ramirez's sentence as to Count Two, on the ground

that it exceeded the statutory maximum of fifteen years under 18

U.S.C. § 2119(1). United States v. Ramirez-Burgos, No. 98-1995,

1999 WL 525916 (1st Cir. May 18, 1999).

II.

On May 24, 2000, seeking to take advantage of the Jones

decision, Ramirez brought a motion to vacate, set aside or correct

his sentence, pursuant to 28 U.S.C. § 2255. He argued that the

district court should vacate his sentence because the jury did not

determine beyond a reasonable doubt whether Rosado suffered serious

bodily injury. In the alternative, he alleged that his appellate

counsel's failure to advise this Court of the Jones decision on his

second appeal amounted to ineffective assistance of counsel. The

district court denied his petition.

We granted a certificate of appealability, 28 U.S.C. §

2253(c), as to (1) whether appellate counsel's failure to advise

this Court of the Jones decision constituted ineffective assistance

of counsel, (2) whether Ramirez's prior default of the Jones issue

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barred him from raising it for the first time on collateral review,

and (3) whether Jones entitles him to relief.

III.

For Ramirez to prevail on his ineffective assistance of

counsel claim, he must establish (1) that, by failing to advise

this Court of the Jones decision, his appellate counsel's

performance "fell below an objective standard of reasonableness,"

and (2) that "there is a reasonable probability that, but for

counsel's unprofessional errors," he would have prevailed on his

Jones claim on his second appeal. Strickland v. Washington, 466

U.S. 688, 686-88 (1984); see also Murray v. Carrier, 477 U.S. 478,

485 (1986) (holding that the Strickland standard applies to trial

and appellate counsel). We find it unnecessary to determine

whether Ramirez's appellate counsel was unreasonable in failing to

raise a Jones claim, for even if we assume that he was, his claim

would have failed under Strickland's second prong.

Because Ramirez failed to object to the jury instructions

or otherwise raise a Jones-type claim at trial, we would not have

granted relief on his second appeal unless Ramirez established that

the Jones error was plain under Fed. R. Crim. P. 52(b). See United

States v. Perez-Montañez, 202 F.3d 434, 441-43 (1st Cir. 2000)

(holding that, on direct appeal, plain error review applies where

the Jones argument was not preserved at trial); cf. United States

v. Cotton, ___ U.S. ___, 122 S. Ct. 1781, 1785 (2002) (holding that

-8-
a defendant's failure to object to Apprendi6 error at trial

engenders plain error review on direct appeal); Neder v. United

States, 527 U.S. 1, 15 (1999) (holding that "the omission of an

element [in a jury instruction] is an error that is subject to

harmless-error analysis."). "Under that test, before an appellate

court can correct an error not raised at trial, there must be (1)

'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial

rights.'" Johnson v. United States, 520 U.S. 461, 466-67 (1997)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). If

these conditions are met, we may then exercise our discretion to

correct the error, "but only if (4) the error seriously affect[s]

the fairness, integrity, or public reputation of judicial

proceedings." Id. at 467 (internal quotation marks omitted)

(quoting Olano, 507 U.S. at 732).

We quickly dispose of the first two prongs of the test.

Jones applies to Ramirez's case retroactively as his case was still

on direct review at the time it was decided. Perez-Montañez, 202

F.3d at 442 (citing Griffith v. Kentucky, 479 U.S. 314, 328

(1987)). Accordingly, the trial court's failure to instruct the

jury to determine the element of whether the carjacking resulted in

serious bodily injury was "error." See Jones, 526 U.S. at 251-252;

6
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the
Supreme Court held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt."

-9-
Perez-Montañez, 202 F.3d at 441-42. And because Jones was decided

at the time of appellate consideration, the error was "plain." See

Johnson, 520 U.S. at 468 ("[W]here the law at the time of trial was

settled and clearly contrary to the law at the time of appeal--it

is enough that an error be 'plain' at the time of appellate

consideration.").

Our third inquiry is whether the error "affect[ed]

[Ramirez's] substantial rights." An error affects substantial

rights if it was "prejudicial," meaning that the error "must have

affected the outcome of the district court proceedings." Olano,

507 U.S. at 734; see also Perez-Montañez, 202 F.3d at 442. In

making this inquiry, we do not "'become in effect a second jury to

determine whether the defendant is guilty.'" Neder, 527 U.S. at 19

(quoting R. Traynor, The Riddle of Harmless Error 50 (1970)).

Rather, "we must determine 'whether the record contains evidence

that could rationally lead to a contrary finding with respect to

the omitted element.'" United States v. Benjamin, 252 F.3d 1, 9

(1st Cir. 2001) (quoting Neder, 527 U.S. at 19); United States v.

Baldyga, 233 F.3d 674, 682 (1st Cir. 2000) (same). This inquiry is

substantially similar to the standard applied in harmless error

analysis, except that the petitioner, not the government, "bears

the burden of persuasion with respect to prejudice." Olano, 507

U.S. at 734; see also Perez-Montañez, 202 F.3d at 442.

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 In providing for an enhanced penalty in 18 U.S.C. §

2119(2), Congress intended that defendants involved in carjackings

that include serious bodily injury should receive more severe

punishment than those defendants involved in carjackings that do

not include serious bodily injury. The issue for the jury,

therefore, is whether the carjacking resulted in serious bodily

injury. It is undisputed that Rosado was raped during the

commission of the carjacking; indeed, Ramirez conceded this fact at

oral argument.7 And not surprisingly, Ramirez agreed at oral

argument that Rosado suffered serious bodily injury as a result of

being raped by one of the carjackers. Thus, the question

immediately before us is whether Rosado's serious bodily injury--

the rape--resulted from the carjacking.

We are not in uncharted territory. In United States v.

Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998), we analyzed what

type of injuries "result" from a carjacking for purposes of 18

U.S.C. § 2119(2). We explained that

the choice of the word "results" in the
statutory phrase "if serious bodily injury . .
. results" suggests that Congress intended to
cover a fairly broad range of consequences
flowing from a carjacking. Moreover, the
legislative history characterized the

7
Ramirez must concede this point. The jury heard undisputed
testimony that, before abandoning Rosado and her vehicle, one of
the carjackers forced her to undress and then raped her. Moreover,
the jury heard uncontroverted testimony that semen was found on her
body and skirt. Ramirez had an opportunity to cross-examine Rosado
on this point, but chose not to do so.

-11-
 provision as imposing the enhancement when the
carjacking "involves bodily injury," which
supports the view that the injuries covered
are not limited to those resulting from the
"taking" of a vehicle, but also include those
caused by the carjacker at any point during
his or her retention of the vehicle.

Id. (citation omitted). Accordingly, we held that serious bodily

injury arising from the rape in that case resulted from the

carjacking.8 Id. We have since reaffirmed our reading of the term

"results" as including injuries that were caused by the actions of

the carjacker at any time during the commission of the carjacking.

See United States v. Lowe, 145 F.3d 45, 53 (1st Cir. 1998).9

The jury heard overwhelming and uncontroverted evidence

that Rosado was raped during the commission of the carjacking. See

Ramirez-Burgos I, 1997 WL 268695, at *1, 4-5. Indeed, in Ramirez's

direct appeal, we found that "the rape, like the earlier

brandishing of the gun, provided the intimidation by which the

carjackers extended their control of the victim and her

8
In 1996, Congress amended § 2119(2) to make clear that the
definition of "serious bodily injury" includes sexual abuse, as
defined in 18 U.S.C. §§ 2241 and 2242, that occurs during the
course of the carjacking. See Carjacking Correction Act of 1996,
Pub. L. 104-217, 110 Stat. 3020; H.R. Rep. No. 104-787 (1996),
reprinted in 1996 U.S.C.C.A.N. 3409 ("[The amendment to § 2119(2)]
is intended to make clear that offenders who commit rape during a
carjacking should get the penalty enhancement provided for in the
statute.").
9
We do not here set forth the temporal limits of a carjacking
under § 2119. But we reaffirm, without hesitation, that the
commission of a carjacking continues at least while the carjacker
maintains control over the victim and her car. See Vazquez-Rivera,
135 F.3d at 178.

-12-
automobile." Id. at *5. At no time has Ramirez disputed that

Rosado's serious bodily injury occurred during the commission of

the carjacking. Nor does he do so now. In sum, Ramirez has failed

to point to any facts--and our independent review of the entire

record has found none--that suggest that the jury rationally could

have reached a different conclusion.

Faced with the unavoidable conclusion that the rape

resulted from the carjacking, at oral argument, Ramirez maintained

that he suffered prejudice because the jury did not determine the

identity of the rapist. According to his theory--one that was not

raised at trial, sentencing, direct appeal, in his § 2255 petition,

or in his briefs for this appeal--only the rapist, not the other

carjacker, can be held criminally responsible for the serious

bodily injury because the rape was not included in the purpose of

the joint venture--the carjacking of Rosado--and, in any case, the

rape occurred after the joint venture ended.

Ramirez's arguments raise the interesting question of the

scope of aider and abettor liability under the carjacking statute.

After all, not only was Ramirez charged and convicted as a

principal, but he was also charged and convicted as an aider and

abettor under 18 U.S.C. § 2(a) ("Whoever commits an offense against

the United States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal."). The case

-13-
law is remarkably silent on the question of the scope of aider and

abettor liability in this situation.

Although intriguing, the issue need not detain us for two

reasons. First, the question of the scope of aider and abettor

liability is beyond the scope of this appeal. The only issue

before us is whether the failure to instruct the jury to determine

the element of serious bodily injury affected the trial court

proceedings. Had the error not occurred, the trial court would

have instructed the jury to determine, in addition to the other

elements of the offense, only whether Rosado suffered serious

bodily injury as a result of the carjacking. There is nothing in

Jones or § 2119(2) that requires the trial court to instruct the

jury to determine the identity of the person who actually caused

the serious bodily injury. The identity of the rapist is simply

immaterial to answering this question.

Second, even if the identity of the rapist is material,

we reach the same result because the jury verdict necessarily

included a finding that Ramirez was the rapist. The trial evidence

showed that there were only two carjackers--the number of

carjackers has never been in dispute. Given that there were only

two carjackers, Ramirez and Montañez, if one is excluded as the

rapist, the other necessarily is the rapist. After taking over

Rosado's car, the two carjackers drove around searching for a

second victim. One carjacker drove Rosado's car while the other

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sat in the backseat. Spotting Kassandra Rivera-Boujoven, the

driver rammed Rosado's car into Rivera's car. The driver then

exited Rosado's car, got into Rivera's car, and drove away, leaving

the only other carjacker with Rosado. The other carjacker, who

remained in the backseat of Rosado's car, moved to the driver's

seat, and drove Rosado to a secluded location. Once there, he

ordered her to undress, and then raped her. After raping Rosado,

the second carjacker left Rosado and climbed into the backseat of

Rivera's car. The two men, with Rivera in the passenger seat,

drove off, stopped to consume drugs, and ultimately crashed into a

mango tree. Ramirez was found in the backseat of Rivera's car,

trying to escape.10

The trial evidence was overwhelming and uncontroverted

that Montañez was the first carjacker, the carjacker who exited

Rosado's car, and the only driver of Rivera's vehicle, leaving the

second carjacker as the one who ultimately raped Rosado.11 That

10
At trial, Ramirez maintained that he did not participate in
either of the two carjackings. According to his defense theory,
the second carjacker, the one who raped Rosado and jumped in the
backseat of Rivera's car, exited Rivera's car at a housing project.
Shortly thereafter, Ramirez got into the backseat of Rivera's car
to shoot up drugs with Montañez. At closing argument, his trial
counsel explained that "by chance, luck, or coincidence," Ramirez
had unwittingly switched places with the second carjacker--the
rapist. The jury cearly rejected Ramirez's mere coincidence
argument, and found him guilty of both carjackings.
11
In closing argument, Ramirez's trial counsel acknowledged
that Montañez was the driver of Rosado's car who exited and took
over Rivera's. Moreover, Rivera specifically identified Montañez
as the only driver of her car, and Ramirez himself testified that

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only leaves Ramirez, the second carjacker, as the rapist. By

convicting Ramirez for both carjackings, the jury necessarily found

that Ramirez was the second carjacker, who remained in Rosado's car

after Montañez exited, and who ultimately raped Rosado. No other

reading of the facts and verdict is possible. In any event, the

record does not contain evidence that would allow a rational jury

to reach a contrary finding. The jury's determination that Ramirez

was the rapist is not surprising given the overwhelming evidence

presented at trial, including the positive identification by Rosado

that Ramirez was the rapist and corroborating testimony provided by

Rivera. See Ramirez-Burgos I, 1997 WL 268695, at *3-5. In short,

we conclude that the jury verdict necessarily would have been the

same had the trial court asked the jury to determine whether the

carjacking resulted in serious bodily injury.

Finally, even were we to pass over the question of

whether the error affected Ramirez's substantial rights, we would

still affirm because Ramirez's claim fails under the fourth prong

of plain error review. In Johnson, the Supreme Court held that,

where the trial court fails to submit an element of an offense to

the jury, if the evidence of the omitted element is "overwhelming"

and "essentially uncontroverted," there is "no basis for concluding

Montañez was the driver of Rivera's car. Finally, Rosado testified
that after Ramirez raped her, she watched him get into the backseat
of Rivera's car. There is no dispute that Montañez was not the
rapist.

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that the error 'seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.'" 520 U.S. at 470.

Here, Ramirez concedes that Rosado suffered serious

bodily injury as a result of the rape. And as we explained, the

overwhelming and uncontroverted evidence at trial showed that the

rape resulted from the carjacking for purposes of § 2119(2).

Furthermore, the jury's finding of guilt for the carjacking of both

Rosado and Rivera necessarily included a finding that Ramirez was

the rapist. There is no other rational way of reading the trial

evidence and verdict. Thus, the failure of the district court to

submit the element of serious bodily injury to the jury was simply

inconsequential to Ramirez's conviction or the sentence he

ultimately received. In sum, we find that the trial error,

although plain, did not seriously affect the fairness, integrity,

or public reputation of judicial proceedings.12

12
By deciding that Ramirez would have been unable to establish
plain error on direct review and thus cannot establish that his
appellate counsel was ineffective under the second prong of
Strickland, we need not discuss whether Ramirez has shown actual
prejudice sufficient to excuse his procedural default of the Jones
claim. See Bousley v. United States, 523 U.S. 614, 622 (1997)
(holding that in order to excuse a procedural default, a petitioner
must demonstrate either cause for failing to raise the claim and
actual prejudice, or actual innocence). Given that the actual
prejudice standard is more demanding than that for plain error and
that Ramirez is unable to satisfy the plain error standard, he
fails, a fortiori, to satisfy the actual prejudice standard to
excuse his default. See United States v. Frady, 456 U.S. 152, 166
(1982) (holding that the actual prejudice standard on collateral
review presents a "significantly higher hurdle" than plain error
review). Ramirez has made no claim of actual innocence.

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 Having found that there is no reasonable probability that

the second appeal panel would have found plain error had appellate

counsel raised Jones and complained about the jury instructions, we

hold that Ramirez has failed to establish prejudice under

Strickland's second prong.

IV.

It is beyond question that Ramirez was properly convicted

of and sentenced for a carjacking that resulted in serious bodily

injury. The decision of the district court is affirmed.

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