United States Court of Appeals
For the First Circuit
No. 06-1923
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ A. GARCÍA-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Mark Diamond, for appellant.
Vernon B. Miles, Assistant United States Attorney, with whom
Germán A. Rieckehoff, Assistant United States Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, were
on brief for appellee.
June 10, 2008
*
Of the Eighth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. José A. García-Ortiz
("García") was convicted of intentionally obstructing and delaying
commerce by robbery, armed robbery, and first degree murder under
18 U.S.C. §§ 2, 1951(b), 924(c)(1), and 924(j). The jury found him
guilty on all three counts. García was sentenced to life
imprisonment for aiding and abetting and first degree murder and an
additional ten years' imprisonment for attempted murder. García
challenges his conviction on numerous grounds and challenges the
length of his sentence as to Count One for intentional obstruction
of commerce by robbery. After careful consideration, we affirm
García's conviction but vacate and remand to the district court for
resentencing as to Count One.
I. Background1
At approximately 11:30 a.m. on December 9, 2000, Rafael
Rivera-Aguayo ("Rivera"), a security guard for Ralph's Food
Warehouse ("RFW"), escorted RFW's manager, Edgardo Figueroa-Rosa
("Figueroa"), to his car. They were going to the bank to deposit
$63,000 in cash from the previous day's sales. As the two men
exited the supermarket and walked toward the car, Figueroa noticed
a green four-door car -- later identified as a Dodge Intrepid --
which he found suspicious because of the way it was parked.
Figueroa opened the door of his car for Rivera to get in, and he
1
We recite the facts in the light more favorable to the jury's
verdict, consistent with record support. See United States v.
Colón Díaz, 521 F.3d 29, 32 (1st Cir. 2008).
-2-
walked around the back of the car to get in on the driver's side.
Before he was fully seated, Figueroa saw two people running towards
the car through his rear-view mirror. One of them grabbed Rivera
and a struggle ensued. During the struggle Figueroa heard a
gunshot, and he got down on the ground. After hearing gunshots,
Rivera returned fire and killed one of the assailants, Reinaldo
Rolón Rivera ("Rolón). Rivera saw a person with white tennis shoes
walk around the back of the car. Figueroa remained on the ground,
and he saw someone running towards his car wearing a white shirt
and jeans. The person ran towards Figueroa as he heard voices from
the Intrepid yelling "kill him." The assailant took the bag of
money from Figueroa who kept his eyes and hands on the ground and
begged for mercy. Figueroa heard two more shots and then the
Intrepid sped away. Rivera was wounded and in a state of shock.
Two RFW employees saw the assailants' silhouettes, but
did not see their faces. They saw someone jump out of the car,
take the money, and then get back in the car and speed away. The
employees identified one of the assailants as wearing blue jeans
and a blue t-shirt with white stripes. Another witness saw the
assailants, but he could only provide vague descriptions of them.
The police recovered a .357 Magnum, short-barrel revolver at the
scene of the crime and took it as evidence. The Intrepid, reported
stolen by its owner in November 2000, was later recovered only five
minutes away from RFW. One of its side windows had a bullet hole
-3-
in it, the back window was completely broken, the back seat bore a
blood stain, and there were shell casings in the car. According to
forensic analysis, a total of three guns were fired during the
robbery. The police collected copious amounts of forensic evidence
from the Intrepid.
During its investigation, the FBI came to believe that
García may have been involved in the robbery. García had been
photographed with the deceased assailant at a mechanic shop that
had been under surveillance prior to the RFW robbery. The owner of
the shop was suspected of being part of an organization involved in
armed robberies.
García, along with others, was subpoenaed to the FBI
office in San Juan to provide blood, hair, saliva, and fingerprint
samples. He went to the FBI office, accompanied by counsel, and
during a consensual body search, the FBI discovered what looked
like a bullet wound. García's wound was later x-rayed, and the FBI
found metallic residue consistent with such a wound.2 DNA evidence
performed at the FBI lab confirmed that DNA in the Intrepid matched
García's DNA and excluded all other suspects. García produced an
alibi witness, Magda Ballester, who said that she saw him at about
2:00 p.m. on the day of the robbery at his home working on a cement
2
The Government filed a motion to remove the bullet from García,
but a magistrate judge denied the motion, holding that under
Winston v. Lee, 470 U.S. 753 (1985), the proposed surgical
procedure posed health risks to the defendant. See United States
v. García-Ortiz, 261 F. Supp. 2d 56, 61 (D.P.R. 2003).
-4-
wall. She testified that he was there until 5:00 p.m. and that
García never told her that he was wounded. Ballester's testimony
was contradicted by an FBI agent who said that when he first
interviewed her, she did not mention anything about García working
on a cement wall and that the first time she saw him that day was
when he was at his grandmother's house that evening.
At the time of the robbery, RFW consisted of four
supermarkets in Puerto Rico; the chain sold products it bought from
vendors in Florida and Georgia, among other places. RFW's business
with continental United States vendors was estimated in the several
millions of dollars.
García was charged on February 28, 2000. He was indicted
on March 15, 2001, with a superseding indictment on September 3,
2003. Count One charged him with intentional obstruction of
commerce by robbery under 18 U.S.C. §§ 23 and 1951(a);4 Count Two
3
18 U.S.C. § 2 reads:
(a) Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal. (b)
Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal.
4
18 U.S.C. § 1951(a) reads:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything in
-5-
charged him with unlawfully carrying a firearm during a crime of
violence interfering with interstate commerce under 18 U.S.C. §§ 2
and 924(c)(1)(A);5 and Count Three charged him with murder under
18 U.S.C. §§ 2 and 924(j).6 On August 13, 2004, García was
convicted on all three counts. He was sentenced on May 10, 2006
to life imprisonment on Counts One and Three, with the sentences to
run concurrently; he was sentenced to ten years' imprisonment as to
violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.
5
18 U.S.C. § 924(c)(1)(A) reads:
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime
(including a crime of violence or drug trafficking crime
that provides for an enhanced punishment if committed by
the use of a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime: (i) be
sentenced to a term of imprisonment of not less than 5
years; (ii) if the firearm is brandished, be sentenced to
a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.
6
18 U.S.C. § 924(j) reads:
A person who, in the course of a violation of subsection
(c), causes the death of a person through the use of a
firearm, shall: (1) if the killing is a murder (as
defined in section 1111), be punished by death or by
imprisonment for any term of years or for life; and (2)
if the killing is manslaughter (as defined in section
1112), be punished as provided in that section.
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Count Two, with the sentence to run consecutively to Counts One and
Three. García appeals his conviction and his sentences.
II. Discussion
García makes numerous arguments challenging his
conviction and sentence. With the exception of García's challenge
to his sentence for Count One, we are unconvinced by his arguments.
After outlining the applicable standard of review, we take each
claim in turn.
A. Bolstering
We review a trial court's evidentiary rulings for an
abuse of discretion. See United States v. Rivera-Hernández, 497
F.3d 71, 82 (1st Cir. 2007) (citing United States v. Lara, 181 F.3d
183, 195 (1st Cir. 1999)).
García argues that the district court allowed
impermissible speculation and bolstering by FBI Agent Allen Gómez.
Before trial, Rivera was shown a picture of García, but incorrectly
identified another man. At trial, the Government asked Gómez if
anybody in the courtroom resembled the person that Rivera
identified. García objected, arguing that the question called for
conjecture and speculation in an attempt to bolster Rivera's
out-of-court misidentification. The judge overruled the objection,
and Gómez testified that García resembled a photo of a man Rivera
identified.
-7-
García argues that Gómez's speculation was inadmissible
and prejudicial because it was (1) speculation by a lay witness on
an issue not beyond the jury's purview; (2) an improper attempt to
get Gómez to bolster the testimony of Rivera; and (3) an improper
attempt to turn Rivera's non-identification into a positive
identification because of Gómez's perceived high status as a law
enforcement official. The Government admits that Gómez was no more
familiar with the defendant than the jury, and concedes that
Gómez's speculation was inadmissible. The Government argues,
however that the error was not prejudicial.
As the Government concedes, the district court erred when
it overruled García's objection. As a lay witness, Gómez
improperly testified about a non-technical subject which was not
beyond the purview of the jury. See Fed R. Evid. § 701;7 United
States v. Muñoz-Franco, 487 F.3d 25, 35 (1st Cir. 2007). The jury
was perfectly capable of drawing its own independent conclusion
based on the evidence presented.
7
Rule 701 reads:
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b)
helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
-8-
While the Government's tactics were sloppy at best, its
chosen path at trial and the district court's evidentiary ruling do
not form a basis for reversal. The district court's erroneous
ruling was harmless because "it is highly probable that the error
did not contribute to the verdict." United States v. Scott, 270
F.3d 30, 46 (1st Cir. 2001); see also United States v. Piper, 298
F.3d 47, 57 (1st Cir. 2002) ("A non-constitutional evidentiary
error is harmless (and, therefore, does not require a new trial) so
long as it is highly probable that the error did not influence the
verdict." (footnote and citation omitted)). Overwhelming evidence
supported the verdict: Forensic evidence conclusively placed
García at the scene of the crime and in the getaway car during the
robbery and the ensuing shootout; his alibi was also unconvincing.
The Government has satisfied its burden of proving that the error
was harmless and that García committed the crimes for which he was
convicted.
B. First-Degree Murder Charge
1. Jury Instruction
Normally we review questions of law concerning the
district court's charge to the jury de novo, see Muñiz-Olivari v.
Stiefel Labs., 496 F.3d 29, 37 (1st Cir. 2007), but when an
appellant did not object to the instructions below, we review for
plain error, see United States v. De la Cruz, 514 F.3d 121, 136 n.6
-9-
(1st Cir. 2008). On count three, first degree murder, the judge
gave the following jury instruction:
To kill with malice aforethought ordinarily
means either to kill another person
deliberately and intentionally or to act with
callous and wanton disregard for life.
However, the government need only prove that
the killing resulted from a commission of an
enumerated felony, that is, interference with
commerce by robbery, in order to establish to
[sic] requisite of malice aforethought.
Accordingly, to be guilty of first degree
murder by the virtue of federally [sic] murder
rule, the defendant need only have committed
the underlying felony, that is, interference
with commerce by robbery, and a person, such
as an alleged accomplice Reinaldo Rolón Rivera
was killed.
García argues that the court's instruction that he was
guilty of felony murder if he engaged in "interference with
commerce by robbery" instead of "robbery" alone permitted the jury
to convict him of murder in the first degree by his alleged mere
interference with commerce during a robbery, which he claims is not
an underlying felony enumerated in 18 U.S.C. § 1111(a).8 García
8
18 U.S.C. § 1111(a) reads:
Murder is the unlawful killing of a human being with
malice aforethought. Every murder perpetrated by poison,
lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any arson,
escape, murder, kidnapping, treason, espionage, sabotage,
aggravated sexual abuse or sexual abuse, child abuse,
burglary, or robbery; or perpetrated as part of a pattern
or practice of assault or torture against a child or
children; or perpetrated from a premeditated design
unlawfully and maliciously to effect the death of any
-10-
contends that under the court's instruction, the jury was required
to believe that interference with commerce during a robbery was an
enumerated felony when the jury might otherwise have found that it
was not.
García did not object to the instruction at trial, and
"the plain error hurdle, high in all events, nowhere looms larger
than in the context of alleged instructional errors." United
States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001) (citing
United States v. McGill, 952 F.2d 16, 17 (1st Cir. 1991)). "Review
for plain error entails four showings: (1) that an error occurred
(2) which was clear or obvious and which not only (3) affected the
defendant's 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) (citing
Johnson v. United States, 520 U.S. 461, 466-67 (1997)). García's
claim fails on the first prong of the plain error test.
The Government argues that the "robbery" that is listed
in § 1111(a) clearly refers to a violation of 18 U.S.C. § 1951,
which requires that robbery affect interstate commerce. We agree.
In United States v. Jiménez-Torres, 435 F.3d 3 (1st Cir. 2006), we
found no error in an instruction nearly identical to the one given
by the district court here in this case. Id. at 10. García cannot
human being other than him who is killed, is murder in
the first degree.
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demonstrate that an error occurred, and, consequently, his claim
fails. We need go no further in the analysis.
2. Accomplice Murder
García argues that he was convicted of a crime that he
was not charged with committing, claiming that neither the
indictment nor the superseding indictment charged him with Rolón's
murder. Simply put, García is mistaken. The superseding
indictment specifically reads:
José Antonio García Ortiz . . . did knowingly
carry and use firearms . . . specifically
interfering with commerce by the robbery of
Ralph's Food Warehouse . . . and with malice
aforethought, did unlawfully cause the killing
of Reinaldo Rolón Rivera, a co-conspirator,
through the use of a firearm, in the
perpetration of that robbery, which killing is
a murder.
(Emphasis added.)
García is also mistaken in his belief that the indictment
had to charge that he personally killed his accomplice. Section
1111 does not require that the defendant himself pull the trigger.
In United States v. Shea, 211 F.3d 658 (1st Cir. 2000), we said
that "under the felony murder rule adopted by section 1111 []
. . ., the killing [during the] robbery was first-degree murder by
those who perpetrated the robbery, regardless of who pulled the
trigger or any individual intent." Id. at 674. García was
convicted of perpetrating the robbery. This is the case because
"the statute was intended to adopt the felony murder rule, and for
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a stated felony [-- here, robbery --] the 'malice' element is
satisfied by the intent to commit the unlawful felony." Id.
García was charged with the murder of Rolón, and he was convicted
by the jury. There was no error in his indictment or his
conviction for murder.
3. Meaning of "Victim" in Sentencing Guidelines
This court reviews the district court's application of
law at sentencing de novo. See United States v. Muñiz, 49 F.3d 36,
41 (1st Cir. 1995) (citing United States v. Brewster, 1 F.3d 51, 54
(1st Cir. 1993)). García argues that the Sentencing Guidelines
under which he was sentenced in Count Three did not apply to him
because he claims that Rolón was not "a victim" within the meaning
of the Guidelines. Section § 2B3.1(c)(1) of the Guidelines reads:
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).
Section 2B3.1(c)(1) explicitly applies to robbery. See
United States v. Martínez-Bermúdez, 387 F.3d 98, 101 (1st Cir.
2004) (citing United States v. Lebrón-Cepeda, 324 F.3d 52, 61 (1st
Cir. 2003) (per curiam)). As we discussed above, García was
properly convicted under circumstances that would constitute murder
under § 1111. He would have us hold that an alleged co-felon
cannot be included in the definition of "victim" if the alleged co-
felon were killed during the perpetration of a robbery. We refuse
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to read the word "victim" as narrowly as García suggests. In
United States v. Hughes, 211 F.3d 676 (1st Cir. 2000), we said that
"§ 2B3.2(c)(1) contemplates that there may be 'victims' . . .
other than the target." Id. at 69; cf. Martínez-Bermúdez, 387 F.3d
at 102 (applying § 2B3.1(c)(1) to death of unintended target). The
"use of the indefinite article [in § 2B3.1(c)(1)] suggests a class
of potential victims broader than the target or targets of the
[robbery]." Hughes, 211 F.3d at 691. The Fifth Circuit has also
used a broader definition of the word "victim." See United States
v. Harris, 104 F.3d 1465, 1474-75 (5th Cir. 1997) (finding that
person who was not target of a robbery but who was killed in
aftermath was "a victim" within the meaning of the guidelines and
applying § 2B3.1(c)(1)). Given our discussion above of Shea's
adoption of the felony murder rule, it is clear that an alleged
co-felon can be "a victim" for the purposes of the Guidelines. The
district court did not improperly sentence García under § 2B3.1
(c)(1).
C. Sufficiency of Evidence
We review a claim of insufficiency of evidence de novo,
examining the evidence in the light most favorable to the
Government. See United States v. Hall, 434 F.3d 42, 49 (1st Cir.
2006) (citations omitted). "Sufficient evidence may be comprised
of direct or circumstantial evidence, or any combination of the
two." Jiménez-Torres, 435 F.3d at 8 (citing United States v.
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Patel, 370 F.3d 108, 111 (1st Cir. 2004)). "The test is whether
the evidence, construed favorably to the government, permitted
rational jurors to conclude, beyond a reasonable doubt, that the
defendant [is] guilty as charged." United States v. Sebaggala, 256
F.3d 59, 63 (1st Cir. 2001) (citing United States v. Singh, 222
F.3d 6, 9 (1st Cir. 2000)).
As per Federal Rules of Criminal Procedure, García moved
for an order of judgment of acquittal in the district court orally
and in writing. He also moved for a new trial, claiming that the
evidence does not prove beyond a reasonable doubt that he was
involved in, or present at, the robbery. García proffers that his
conviction was based on two insufficient grounds: (1) a rumor
from an informant who did not testify at trial; and (2) the
assumption that García's shoulder wound was the result of the
crimes charged. García also argues that the evidence against him
was insufficient to support a charge under the Hobbs Act.
1. Testimony
Brandon Shea, an FBI forensics expert, testified that
García's DNA matched DNA taken from evidentiary items collected
during the course of the investigation. García was the only one of
the six subpoenaed suspects whose samples matched those collected
from the scene of the crime. Shea testified to a "reasonable
degree of scientific certainty" that García was the source of DNA
-15-
collected from the backseat of the Intrepid.9 García's parsing of
the DNA evidence presented at trial is ill-conceived. The fact of
the matter is that García's DNA was an exact match for the DNA the
police found in the Intrepid. The Government argues that García's
contention that the forensic evidence from the crime does not match
his is frivolous. We agree. Shea testified that there is no error
rate for the properly conducted restriction fragment length
polymorphism (known as R.F.L.P.) DNA testing he conducted. He also
testified that the probability that this could have come from
someone else is 1 in 87,000,000,000,000,000, and that the margin of
error for the test is less than 0.01%.
García's alibi for the time of the robbery does not
exonerate him. At trial, Ballester testified that she was with
García on the day of the robbery from 2:00 or 2:30 p.m. until 4:00
or 5:00 p.m. and from 7:30 to 8:00 p.m. until midnight. The
robbery occurred at around noon, and the times she claimed to have
been with García still provide ample time for him to have been
involved in the robbery. Moreover, when the FBI first interviewed
9
García claims that the blood sample taken from the Intrepid did
not match his. This is a simplistic and incomplete statement. The
blood sample that was taken from the Intrepid was from a very weak
stain. There was not enough of a sample for the forensic analyst
to confirm that the sample was actually blood. But that same
sample, even though a blood analysis could not be properly and
conclusively conducted, did have enough material for the forensic
analyst to obtain a complete DNA profile. The profile found that
all thirteen different genetic addresses that are tested in DNA
analysis matched García.
-16-
Ballester, she said that she did not see García until that evening
at his grandmother's house. But even if Ballester did provide an
alibi, the jury is allowed to draw its own conclusion from alibi
testimony. "Credibility determinations are uniquely within the
jury's province, and we defer to the jury's verdict if the evidence
can support varying inferences." United States v. Calderón, 77
F.3d 6, 10 (1st Cir. 1996) (internal quotation marks omitted);
accord United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir.
1996). The Government presented both direct and circumstantial
evidence that García perpetrated the robbery.
2. The Hobbs Act
García's conviction was pursuant to the Hobbs Act, 18
U.S.C. § 1951(a). He asserts that there is no evidence that his
alleged conduct had any effect on interstate commerce, and that
there was no nexus -- not even a de minimis one -- between the
money stolen and interstate commerce. His assertions are not
supported by our case law and we reject his claims.
The Hobbs Act prohibits robbery that "in any way or
degree obstructs, delays, or affects commerce." United States v.
Nguyen, 246 F.3d 52, 54 (1st Cir. 2001).10 Congress enacted the
Hobbs Act "to punish interference with interstate commerce by
10
According to the Hobbs Act "'commerce' means . . . all commerce
between any point in a State, Territory, Possession, or the
District of Columbia and any point outside thereof." 18 U.S.C.
§ 1951(b)(3).
-17-
extortion, robbery, or physical violence." Stirone v. United
States, 361 U.S. 212, 215 (1960); accord Jiménez-Torres, 435 F.3d
at 7. To successfully prove a violation of the Hobbs Act, "the
government must show that the . . . conduct created a realistic
probability of a de minimis effect on interstate commerce." United
States v. Turner, 501 F.3d 59, 69-70 (1st Cir. 2007) (quoting
United States v. Capozzi, 347 F.3d 327, 335 (1st Cir. 2003))
(alteration in original); cf. United States v. Vega Molina, 407
F.3d 511, 527 (1st Cir. 2005) (Hobbs Act violation found where
robbery caused business engaged in interstate commerce to close for
one day).
It is clear that RFW participated in interstate commerce.
RFW has four stores throughout Puerto Rico, and the Government
presented evidence that RFW purchases products from suppliers in
Miami, Florida and Atlanta, Georgia, among other places. RFW sells
products bought from ten to fifteen vendors in the continental
United States and collects several millions of dollars in revenue
per year. See Jiménez-Torres, 435 F.3d at 8 (interstate nexus
found where Government demonstrated that gas station in Puerto Rico
participated in interstate commerce by purchasing products from the
U.S. Virgin Islands); Capozzi, 347 F.3d at 337.
The "[d]epletion of the assets of a business engaged in
interstate commerce is [another] common method for demonstrating
that a robbery had an effect on interstate commerce."
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Jiménez-Torres, 435 F.3d at 9. Figueroa's testimony confirmed that
the $63,000 that was stolen on the day in question included the
proceeds from RFW's sales from the previous day. If nothing else,
RFW's assets were depleted by at least $63,000. The Government
presented sufficient evidence to demonstrate that RFW was engaged
in interstate commerce.
D. Confrontation Clause Challenge
In a supplemental pro se brief filed by García after we
heard oral arguments, he argues for the first time that his Sixth
Amendment right to confront witnesses against him was violated when
the district court allowed testimony by FBI Agent William Ortiz
concerning Ortiz's investigation of the robbery. García's
arguments are untimely and thus waived. See United States v.
Pizarro-Berríos, 448 F.3d 1, 5-6 (1st Cir. 2006) ("We have
consistently held that, except in extraordinary circumstances,
arguments not raised in a party's initial brief and instead raised
for the first time at oral argument are considered waived." (citing
Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990))). "Not
even plain-error review is available to a party who has waived a
claim of error." United States v. Jiménez, 512 F.3d 1, 7 (1st Cir.
2007).
E. Sentence for Obstruction of Commerce by Robbery
Another argument that García made for the first time in
a supplemental brief after oral argument challenged his sentence on
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Count One. Normally, García would have waived this argument. See
id. There may be times, however, when a possible miscarriage of
justice requires us to review non-jurisdictional issues that were
not raised by either party below. See Izquierdo Prieto v. Mercado
Rosa, 894 F.2d 467, 471 n.4 (1st Cir. 1990) (citing Schlesinger v.
Councilman, 420 U.S. 738, 743 (1985)). García's improper
sentencing presents an opportunity for this court to exercise its
prerogative and prevent a miscarriage of justice. As we found
above, García was properly convicted under 18 U.S.C. § 1951. He
was, however, improperly sentenced. The district court's sentence
under U.S.S.G. § 3D1.2(c) for Count One produced a life sentence,
even though the maximum for that count is twenty years under 18
U.S.C. § 1951.11 The Guidelines cannot supersede the controlling
federal statute. See United States v. Saccoccia, 58 F.3d 754, 786
(1st Cir. 1995) (citing Stinson v. United States, 508 U.S. 36, 43
(1993) and United States v. Fiore, 983 F.2d 1, 2 (1st Cir. 1992)).
The actual timing of García's incarceration remains unaffected
since he received a life sentence as to Count Three. We believe,
however, that it is important to correct the improper sentence
11
18 U.S.C. § 1951(a) reads, in relevant part:
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
under this title or imprisoned not more than twenty
years, or both.
(Emphasis added).
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since it is clear that the statutory limit is twenty years.
Accordingly, we vacate García's sentence for Count One and remand
to the district court for resentencing.
F. Double Jeopardy
This court reviews questions of law de novo. See United
States v. Smith, 511 F.3d 77, 81 (1st Cir. 2007) (citing United
States v. Charles, 213 F.3d 10, 17-18 (1st Cir. 2000)).
García asserts that the armed robbery with which he was
charged contained all the elements of possession of a firearm
during the commission of a robbery. He argues that under
Blockburger v. United States, 284 U.S. 299, 304 (1932), the
underlying crimes with which he was charged constitute a single
offense for Double Jeopardy purposes, and a single "crime of
violence" within the meaning of § 924(c). Our precedent disposes
of the matter, and no further analysis is required. This court
held in United States v. Hansen, 434 F.3d 92 (1st Cir. 2006), "that
Congress intended § 924(c)'s firearm violation to serve as a
cumulative punishment in addition to that provided for the
underlying violent crime and that the Double Jeopardy Clause was
therefore not offended." Id. at 104 (quoting United States v.
González-Arimont, 268 F.3d 8, 13 (1st Cir. 2001)) (internal
quotation marks omitted).
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III. Conclusion
For the foregoing reasons, García's conviction is
affirmed, and his sentence for Count One is vacated and remanded to
the district court for resentencing.
Affirmed in part, and Vacated and Remanded in part.
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