United States v. Garcia-Ortiz

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

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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.

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 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.

-11-
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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