United States Court of Appeals
For the First Circuit
No. 02-2419
UNITED STATES,
Appellee,
v.
CARLOS MARTINEZ-BERMUDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez, and Howard, Circuit Judges.
Colleen E. Carafotes for appellant.
H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and
Sonia I. Torres-Pabón, Assistant United States Attorneys, for
appellees.
November 1, 2004
LIPEZ, Circuit Judge. Appellant Carlos Martinez-Bermudez
participated in a carjacking, recklessly drove the stolen vehicle
against traffic on a crowded street, and eventually struck and
killed a police officer. After being charged in a three-count
indictment, he pled guilty to one count of aiding and abetting an
armed carjacking that resulted in death in violation of 18 U.S.C.
§ 2119(3). The district court sentenced him to life imprisonment.
He now appeals his sentence, arguing that the district court
misapplied several provisions of the United States Sentencing
Guidelines. We affirm.
I.
Because appellant was sentenced following a guilty plea,
"[w]e distill the facts from the plea colloquy, the undisputed
portions of the presentence investigation report . . . and the
transcript of the disposition hearing." United States v. Brewster,
127 F.3d 22, 24 (1st Cir. 1997). We summarize the facts in this
section and recount additional facts in subsequent sections where
appropriate.
On June 26, 2001, at about 1 p.m., Miguel Comas-Horta was
driving past the service window of a Wendy's restaurant in
Mayagüez, Puerto Rico. Three men -- Wilber Heredia-Rivera
(Heredia), David Nuñez-Pérez (Nuñez), and appellant Carlos
Martinez-Bermudez (Martinez) -- approached Comas-Horta's car.
Heredia forced Comas-Horta at gunpoint to surrender his vehicle,
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and Martinez ordered him to throw himself on the ground. The three
assailants then drove off at a high rate of speed. The police were
soon informed of the crime and received a description of the stolen
car.
At about 1:45 p.m., a Commonwealth motorcycle police
officer saw the car driving on Comercio Street in downtown Mayagüez
and followed it. The three assailants noticed the officer pursuing
them and, with Martinez at the wheel, attempted to escape. During
the pursuit, Nuñez threw two guns out the window of the car, one of
which was later recovered by the Commonwealth police.
Two additional Commonwealth officers -- Maria L. Colón-
Ramos and William Camacho-Rivera -- joined the pursuit in a patrol
car. They made a u-turn on Comercio Street and stopped their
vehicle. Officer Camacho-Rivera exited the patrol car and began to
stop oncoming traffic. Martinez drove the stolen vehicle
approximately sixty miles per hour down the wrong side of Comercio
Street -- that is, against the flow of traffic -- and toward
Officer Camacho-Rivera. Although Martinez had sufficient time to
stop or change the direction of his vehicle, he did not do so.
Instead, he struck and killed Officer Camacho-Rivera, then lost
control of the car and struck two civilian vehicles before the
stolen car finally came to a stop. Martinez, Nuñez, and Heredia
were apprehended shortly thereafter.
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II.
On July 24, 2001, a grand jury handed down a three-count
indictment against Martinez. At his arraignment in August 2001,
Martinez pled not guilty to all three counts. In April 2002,
however, he agreed to plead guilty to Count One: aiding and
abetting the taking of a vehicle by force, which resulted in the
death of Officer Camacho-Rivera.1 In exchange for his guilty plea
on Count One, the government agreed to request dismissal of Counts
Two and Three.2 The parties did not enter into any agreement
regarding the application of the Sentencing Guidelines, except that
the government agreed to support a three-level downward adjustment
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.3
1
Count One was charged pursuant to 18 U.S.C. § 2119, which
states in relevant part:
Whoever, with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce
from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall
. . . (3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both,
or sentenced to death.
2
Count Two charged Martinez with aiding an abetting the use of
a firearm in furtherance of a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A)(ii). Count Three charged Martinez with
aiding and abetting the possession of a firearm by a convicted
criminal in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
3
All references to the United States Sentencing Guidelines are
to the November 2001 version, which was in effect at the time of
Martinez's sentencing. See United States v. Harotunian, 920 F.2d
1040, 1041-42 (1st Cir. 1990) ("Barring any ex post facto problem,
a defendant is to be punished according to the guidelines in effect
-4-
The presentence report recommended, pursuant to U.S.S.G.
§ 2B3.1(c) (the robbery cross-reference to the first degree murder
guideline), that Martinez receive a base offense level of forty-
three. It also recommended the following adjustments: (1) a three-
level upward adjustment pursuant to § 3A1.2 because the victim was
a government officer; (2) a two-level upward adjustment pursuant to
§ 3C1.2 for reckless endangerment during flight from a law
enforcement officer; (3) a two-level upward adjustment pursuant to
§ 3C1.1 for obstruction of justice; and (4) a three-level downward
adjustment pursuant to § 3E1.1 for acceptance of responsibility.
The adjustments resulted in a total offense level of forty-seven.
At the sentencing hearing on September 30, 2001, the district court
adopted the recommendations in the presentence report and applied
a total offense level of forty-seven. Under the Guidelines'
sentencing table, that total offense level requires a punishment of
life imprisonment. See U.S.S.G. Ch. 5 Pt. A.
III.
On appeal, Martinez argues that the district court
misapplied the Guidelines as a matter of law.4 First, he argues
that the district court improperly applied a base offense level of
forty-three. Second, he contends that the district court's
at the time of sentencing."); U.S.S.G. § 1B1.11(a).
4
He does not challenge the factual findings that underlie the
district court's application of the Guidelines.
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imposition of both an upward adjustment for obstruction of justice
and a downward adjustment for acceptance of responsibility is
inconsistent. Finally, he argues that the district court engaged
in impermissible double counting by imposing both an upward
adjustment because the victim was a government officer and an
upward adjustment for reckless endangerment during flight from law
enforcement. We review de novo the district court's legal
interpretation of the Guidelines. See United States v. Talladino,
38 F.3d 1255, 1263 (1st Cir. 1994).
A. The Base Offense Level
U.S.S.G. § 2B3.1(c) provides that, in the case of a
robbery:
If a victim was killed under circumstances
that would constitute murder under 18 U.S.C. §
1111 had such killing taken place within the
territorial or maritime jurisdiction of the
United States, apply § 2A1.1 (First Degree
Murder).
This section, which explicitly applies to robbery, also applies to
carjacking. See United States v. Lebrón-Cepeda, 324 F.3d 52, 61
(1st Cir. 2003) (per curiam), cert. denied sub nom.
Caraballo-Gonzalez v. United States, 124 S. Ct. 232 (2003). 18
U.S.C. § 1111 provides in relevant part: "Murder is the unlawful
killing of a human being with malice aforethought. Every murder
. . . committed in the perpetration of . . . robbery . . . is
murder in the first degree." Finally, U.S.S.G. § 2A1.1 mandates a
base offense level of forty-three for first degree murder.
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Martinez argues that § 2B3.1(c) is inapplicable in this
case because Martinez did not kill Officer Camacho-Rivera "in the
perpetration of . . . robbery," but rather during his flight from
pursuing authorities. This argument is unavailing. In
interpreting 18 U.S.C. § 2119(2), the carjacking statute that
applies when serious bodily injury "results," we have noted that
"Congress intended to cover a fairly broad range of consequences
flowing from a carjacking," and concluded that "the injuries
covered . . . include those caused by the carjacker at any point
during his or her retention of the vehicle." United States v.
Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998). Applying this
principle to § 2119(3), which is parallel to § 2119(2) in all
pertinent respects, a death "results" from a carjacking if that
death was caused "at any point during [the carjacker's] retention
of the vehicle." Therefore, the conduct to which Martinez admitted
in his plea satisfied the elements of § 2119(3).
However, the fact that § 2119(3) covers a death incurred
during flight does not end our inquiry for sentencing purposes.
The offense guideline for § 2119 is U.S.S.G. § 2B3.1 (robbery), and
the offense level must be calculated under that guideline. The
cross-reference to § 2A1.1 (first degree murder) applies only if
the requirements of 18 U.S.C. § 1111 (murder) are met.5 While it
5
The intent element of § 1111(a) is satisfied automatically in
the case of felony murder. United States v. Shea, 211 F.3d 658,
674 (1st Cir. 2000). Thus, the only real dispute is whether the
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may seem intuitive that a death that "results" from a carjacking is
also committed "in perpetration of" the carjacking, the analyses
are formally distinct because they depend on interpretation of
different statutes. Moreover, it is possible that a death might
meet the standard of "result[ing]" from a carjacking while not the
potentially higher standard of being committed "in perpetration of"
that carjacking.
We have held repeatedly that "the law of this circuit is
that the commission of a carjacking continues at least while the
carjacker maintains control over the victim and [his or] her car."
Lebrón-Cepeda, 324 F.3d at 61 (alteration in original) (internal
quotation marks omitted); Ramirez-Burgos v. United States, 313 F.3d
23, 30 n.9 (1st Cir. 2002), cert. denied, 537 U.S. 1167 (2003);
Vazquez-Rivera, 135 F.3d at 178. But those cases all involved
injury to the victim of the carjacking itself, not to third
parties. Indeed, the exact language of Ramirez-Burgos and Lebrón-
Cepeda is that "the commission of a carjacking continues at least
while the carjacker maintains control over the victim and her car."
In this case, Martinez had relinquished control over Comas-Horta
(the carjacking victim) some forty-five minutes before the police
chase began, let alone the fatal crash.6
death occurred "in perpetration of" the carjacking.
6
Martinez has not argued that § 2B3.1(c) should not apply
because, when he struck Officer Camacho-Rivera, Martinez no longer
-8-
The problem of applying the felony murder doctrine to a
death caused, not to the victim of the predicate robbery during its
course, but to someone else during subsequent flight, has arisen in
state law more often than under § 1111. For example, in People v.
Kendrick, 363 P.2d 13, 16 (Cal. 1961), the defendant robbed a store
and drove away, unpursued, at about seventy miles per hour. Some
time (perhaps as much as forty-five minutes) later he was stopped
by a traffic officer. The defendant mistakenly believed the
officer intended to arrest him for the robbery, and shot the
officer. Id. at 16, 23. The California court concluded that "the
homicide could properly be viewed as committed by defendant in an
endeavor to effect an escape." Id. at 23. This conclusion
followed from the nature of robbery as a crime that inherently
involves flight:
Robbery, unlike burglary, is not confined to a
fixed locus, but is frequently spread over
considerable distance and varying periods of
time. The escape of the robbers with the
loot, by means of arms, necessarily is as
had control over the original victim of the carjacking. We note
that the rationale behind Lebrón-Cepeda and Ramirez-Burgos seems to
incorporate an element of kidnapping. Furthermore, our statement
in Vazquez-Rivera that the injuries covered under § 2119 "include
those caused by the carjacker at any point during his or her
retention of the vehicle" must have some logical limit. If the
carjacking is so successful that the defendant completely evades
capture and simply retains the vehicle for his own use, it cannot
be the case that any subsequent traffic accident, after any
interval of time whatsoever, is part of the carjacking. Because
these issues are not fully presented here, however, we decline to
comment on the theoretical outer boundaries of a carjacking after
the victim has been released.
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important to the execution of the plan as
gaining possession of the property.
Id. (quoting People v. Boss, 290 P. 881, 883 (Cal. 1930)). The
robbery continues, under this rationale, "until the robber has won
his way to a place of temporary safety." People v. Fierro, 821
P.2d 1302, 1326 (Cal. 1991) (internal quotation marks omitted). We
have approved this "temporary safety" formulation in the context of
the federal crime of escape. See United States v. DeStefano, 59
F.3d 1, 4 & n.5 (1st Cir. 1995) (quoting Fierro).
Carjacking, being a species of robbery, follows the same
general analysis: flight with the vehicle is inherent to the
crime.7 There might be situations in which a carjacker made off
with a vehicle, reached a point of temporary safety, and only later
was pursued by police. In such cases the flight might no longer be
part of the "perpetration" of the carjacking. Here, however, we
are satisfied that the district court committed no error in
concluding that the carjacking was still in progress when the death
occurred. Martinez struck Officer Camacho-Rivera less than an hour
after initiating the carjacking and while he still retained control
over the stolen vehicle. The record contains no evidence of an
7
Technically, one could be guilty of violating § 2119 simply
by "tak[ing] a motor vehicle . . . from the person or presence of
another by force and violence or by intimidation," without actually
driving it anywhere. But that is true of robbery in general. By
stating that escape is inherent to carjacking we do not mean that
it is an element that must be proven, but simply that, when it does
occur, it is part of the "perpetration" of the crime.
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intervening action or event indicating that the carjacking had
ended prior to his striking the officer. Rather, the facts to
which Martinez admitted support the district court's inference that
Martinez was still engaged in the continuing process of stealing
and disposing of the car when he spotted the police following him,
tried to evade pursuit, and eventually killed Officer Camacho-
Rivera. Put briefly, the facts support the inference that the
death occurred "in the perpetration of" the carjacking.
Because Martinez struck Officer Camacho-Rivera "in the
perpetration of" the carjacking, the district court correctly
applied a base offense level of forty-three pursuant to § 2B3.1(c).
B. Upward Adjustments
Martinez challenges both the two-level upward adjustment
pursuant to § 3C1.2 for reckless endangerment during flight from a
law enforcement officer and the two-level upward adjustment under
§ 3C1.1 for obstruction of justice.8
8
Martinez does not contest the three-level upward adjustment
under § 3A1.2 for striking a government officer, but contends that
the further application of § 3C1.2 constitutes impermissible
"double counting" because both adjustments resulted from the same
act: recklessly driving the stolen vehicle in an effort to evade
capture. See U.S.S.G. § 3C1.2, cmt. n.1 ("Do not apply this
enhancement where . . . another adjustment in Chapter Three,
results in an equivalent or greater increase in offense level
solely on the basis of the same conduct.").
His challenge to the adjustment for obstruction of justice
under § 3C1.1 is based on its alleged incompatibility with the
downward adjustment under § 3E1.1 for acceptance of responsibility.
See U.S.S.G. § 3E1.1, cmt. n.4 (upward adjustment for obstruction
of justice under § 3C1.1 can coexist with a downward adjustment
under § 3E1.1 only in "extraordinary" circumstances).
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We need not resolve these issues. We have concluded that
the district court correctly calculated a base offense level of
forty-three, and the uncontested adjustments, including the only
downward adjustment at issue, balance each other perfectly. That
is, neither Martinez nor the government challenge either the three-
level upward adjustment for death of a government officer under §
3A1.2, or the three-level downward adjustment for acceptance of
responsibility under § 3E1.1. Consequently, even if the district
court had applied only the uncontested adjustments –- or, put
differently, even if we found that application of the contested
adjustments was erroneous -- the total offense level would be
forty-three. Such a change would not affect Martinez's sentence
because all offense levels of forty-three or above mandate a life
sentence. See U.S.S.G. Ch. 5 Pt. A & cmt. n.2 (mandating life
sentence for offense level of forty-three, and treating all higher
offense levels as equivalent to level forty-three).
We do not "address an allegedly erroneous sentencing
computation if . . . correcting it will neither change the
defendant's sentence nor relieve him from some unfair collateral
consequence." United States v. Saccoccia, 58 F.3d 754, 790-91 (1st
Cir. 1995) (refusing to determine whether the district court
erroneously imposed an upward adjustment for obstruction of justice
because "correction of [that] allegedly erroneous finding would not
eliminate the certainty of a mandatory sentence of life
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imprisonment"). Therefore, we decline to pass on the propriety of
the contested upward adjustments.9
AFFIRMED.
9
Briefing was completed in this appeal before the Supreme
Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004).
However, in the months that have followed, Martinez has not sought
to raise a Blakely challenge via Fed. R. App. P. 28(j) or
otherwise, so we need not decide how Blakely might affect this
case. See, e.g., United States v. Garcia-Morales, 382 F.3d 12, 19
n.3 (1st Cir. 2004) (declining to address Blakely because appellant
did not raise the issue). Even if we addressed the issue sua
sponte, our review would be for plain error. See United States v.
Morgan, 384 F.3d 1, 2004 U.S. App. LEXIS 18739, *15-16 (1st Cir.
2004). As in Morgan, "[b]ecause the trial judge acted in
accordance with circuit precedent (not yet clearly established to
be erroneous), we cannot say plain error occurred, and we need not
proceed further." Id. at *18.
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