United States v. Garcia-Ortiz

United States Court of Appeals
For the First Circuit

No. 13-1632

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, Thompson, and Kayatta,
Circuit Judges.

H. Manuel Hernández, with whom H. Manuel Hernández, P.A., was
on brief for Appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, were on brief for Appellee.

July 6, 2015

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 THOMPSON, Circuit Judge. His third time before us,

Defendant-Appellant José García-Ortiz ("García") asks us to vacate

his 2004 robbery conviction, arguing that the government did not

present enough evidence at his jury trial to sustain it. He also

argues that the district judge erred at his sentencing by failing

to consider certain of his mitigating arguments, by ordering his

sentences be served consecutively instead of concurrently, and by

improperly imposing $60,000 in restitution.

Seeing error only in the district court's restitution

order, we affirm García's conviction, and vacate and remand only

the restitution portion of his sentence.

BACKGROUND

As this is García's third appeal, we will not repeat

another detailed recitation of the facts. But here's our mise-en-

scène.1

In 2001, a food warehouse manager and his security escort

were walking to the manager's car with a bag of cash, which they

planned to deposit at the bank. Two men ran toward them. One of

the men grabbed the guard, and after a struggle, gunshots were

1
On this appeal, García has not directed us to any newly-
discovered evidence, so we drew the facts from our review of the
trial evidence as articulated in United States v. García-Ortiz, 528
F.3d 74 (1st Cir. 2008). As we noted there, we recite the facts in
the light most favorable to the jury verdict, consistent with
support from the trial record. Id. at 77 n.1.

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fired. The guard, who was apparently armed, returned fire and shot

and killed one of the ill-fated bandits.

After the mêlée, the manager heard voices from the

nearby-parked getaway car yelling "kill him." One of the robbers

grabbed the bag of cash while the manager lay on the ground,

beseeching mercy. The manager heard two more shots (presumably

from the robbers because the wounded guard had already emptied his

chamber), but fortunately neither the manager nor guard were

killed. The getaway car sped away, and the assailants made off

with $60,000.

Forensics later showed that three guns were fired during

the robbery, one belonging to the guard. The getaway car, which

had been reported stolen about a month before the robbery, was

recovered nearby the scene, donning a bullet hole in one of the

side windows. The rear window was also completely broken out and

shell casings lay about, the backseat blood-stained.

Law enforcement naturally started investigating. Police

suspected García was involved in the robbery after they discovered

a photo of him with the deceased robber at a mechanic shop that had

been under police surveillance.

The FBI brought García (and other suspects) in to collect

their DNA samples. García also consented to a body search, during

which the FBI found what appeared to be a bullet wound on his body

with metallic residue. Another piece of damning evidence, the FBI

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lab confirmed that García's DNA was in the back seat of the

abandoned escape ride, prompting the FBI to exclude the other

suspects.

García was indicted on charges of intentional obstruction

of commerce by robbery under the Hobbs Act, 18 U.S.C. §§ 2 and

1951(a) (Count One);2 unlawfully carrying and using a firearm

during a crime of violence under 18 U.S.C. §§ 2 and 924(c)(1)(A)

2
18 U.S.C. § 1951(a), the Hobbs Act, provides:

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
violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.

18 U.S.C. § 2 is the aiding and abetting provision, which
provides:

(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.

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(Count Two);3 and felony murder under 18 U.S.C. §§ 2 and 924(j)

(Count Three).4

3
18 U.S.C. § 924(c)(1)(A) provides, in relevant part, that

any person who, during and in relation to any crime of
violence . . . . 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 . . .

(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.
4
18 U.S.C. § 924(j) is the felony murder provision, which
provides:

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.

18 U.S.C. § 1111 defines "murder," in relevant part, as

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 . . .

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 After a 14-day trial, in August 2004 a jury convicted

García on all three counts. At sentencing, the district judge

handed down two concurrent life-imprisonment sentences on Counts

One and Three, and a ten-year consecutive prison sentence on Count

Two. García appealed both the conviction and sentences.

In 2008, we affirmed the conviction but vacated the

sentence as to Count One because the district judge impermissibly

sentenced García to life, even though the statutory maximum for

that charge was 20 years. See United States v. García-Ortiz, 528

F.3d 74, 84-85 (1st Cir. 2008) ("García I"). We remanded to the

district court for re-sentencing on that count. Id. at 85.

On remand, the district judge sentenced García to 50

months on Count One, to be served concurrently with a 240-month

sentence on Count Three. See United States v. García-Ortiz, 657

F.3d 25, 27-28 (1st Cir. 2011) ("García II"). The judge also gave

García an additional (consecutive) five years on Count Two. See

id. at 27.

García appealed again, primarily arguing his conviction

and sentence on Count Two violated his double jeopardy rights

because that crime (unlawfully carrying a firearm during a crime of

robbery . . . or perpetrated from a premeditated design
unlawfully and maliciously to effect the death of any
human being other than him who is killed, is murder in
the first degree.

Any other murder is murder in the second degree.

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violence) was a lesser included offense of the murder charge. See

id. at 28. We agreed. The crux of our decision was the Supreme

Court's admonition that "without a clear indication that Congress

intended cumulative punishments for the same offense under two

different statutes, courts must presume that Congress authorized

only one punishment." Id. at 29 (citing Whalen v. United States,

445 U.S. 684, 691-92 (1980)). And, as we discussed in García II,

unlawfully carrying a firearm was an element of felony murder under

§ 924(j); the latter "requires proof of [only] one additional fact:

the death." García II, 657 F.3d at 28. Thus, we vacated García's

conviction and sentence on Count Two, and affirmed the convictions

on Counts One and Three. Id. at 31. But we remanded for re-

sentencing on those counts, in case the district judge wanted to

"unbundle and reconstitute the sentencing package." Id.

In April 2013, the district court again re-sentenced

García, this time to 36 months on Count One and 240 months on Count

Three, to be served consecutively. That made for a grand total of

23 years (two years fewer than the previous sentence). The court

also ordered García to pay $60,000 in restitution to the food

warehouse.

García now appeals for a third time. First, he says his

armed robbery conviction -- and, as a result, the felony murder

conviction premised on the robbery -- should not stand because the

evidence at his trial established only that he was present at the

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scene of the robbery. Second, he argues the district judge erred

(again) at sentencing by failing to properly consider the sentences

of defendants in similar cases. Third, García contends, the judge

mistakenly ordered restitution. Finally, he argues (in a brief he

filed on his own, after his counselled brief was filed) that the

district court erroneously ordered that he serve the sentences for

Count One and Count Three consecutively, when he should only have

to serve them concurrently.5

We find that only García's restitution argument bears any

teeth. We address each grievance in turn.

DISCUSSION

The Convictions

García has it right that if his robbery conviction was

premised on his role as an aider and abettor, his "mere association

with the principal, or mere presence at the scene of a crime, even

when combined with knowledge that a crime will be committed, is not

sufficient to establish . . . liability." United States v.

5
García also raises a number of additional arguments in his
pro se brief. Specifically, he argues: (1) his double jeopardy
rights were violated because the robbery charge for which he was
convicted is a lesser-included offense of felony murder; (2) the
FBI's search of his body, which led to his arrest, was illegal; and
(3) he could not be convicted under the felony murder statute
because the defendants did not bring the gun that led to his co-
robber's death. We do not address these arguments because they
could have (and therefore should have) been brought up in not just
one, but two prior appeals. United States v. Moran, 393 F.3d 1, 11
(1st Cir. 2004) ("In general, available claims of error not raised
in an initial appeal may not be raised during subsequent appeals in
the same case.").

-8-
Medina-Román, 376 F.3d 1, 4 (1st Cir. 2004) (citation and

alterations omitted). Rather, "[i]n order to sustain a conviction

for aiding and abetting the government must prove, in addition to

the commission of the offense by the principal, that the defendant

consciously shared the principal's knowledge of the underlying

criminal act, and intended to help the principal." United States

v. Henderson, 320 F.3d 92, 109 (1st Cir. 2003).

Recognizing that we have twice "rejected [his] arguments

attacking the sufficiency of the evidence," García nonetheless

urges us to reassess whether the evidence presented at his trial

was enough to convict him of armed robbery. According to García,

the government only established his "mere presence" at the scene of

the robbery -- not his "knowledge and active participation" in the

crime, as aiding and abetting law requires.

García's argument fails -- yet again. Well established

is that "when a court decides upon a rule of law, that decision

should continue to govern the same issues in subsequent stages in

the same case." Negrón-Almeda v. Santiago, 579 F.3d 45, 50 (1st

Cir. 2009) (citation omitted and quotations omitted). That is, "a

legal decision made at one stage of a criminal . . . proceeding

should remain the law of that case throughout the litigation,

unless and until the decision is modified or overruled by a higher

court." United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004).

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"We review de novo whether the law of the case doctrine applies."

Negrón-Almeda, 579 F.3d at 50 (citation omitted).

In García I, we specifically rejected García's attacks on

the sufficiency of the evidence. See García I, 528 F.3d at 83.

García doesn't dispute that. Even still, he says, the law of the

case doctrine should not apply here because exceptional

circumstances call for a fresh look.

To be sure, the law allows us to "reopen a matter

previously decided on a showing of exceptional circumstances -- a

threshold which, in turn, demands that the proponent accomplish one

of three things: show that controlling legal authority has changed

dramatically; proffer significant new evidence, not earlier

obtainable in the exercise of due diligence; or convince the court

that a blatant error in the prior decision will, if uncorrected,

result in a serious injustice." Negrón-Almeda, 579 F.3d at 51-52

(citation and quotations omitted). But in García II, we already

found that García "made no showing of any such exceptional

circumstance." García II, 657 F.3d at 30. And on this go-round,

we see no reason to doubt that decision.

García claims a recently-decided Supreme Court case

clarifying the scienter (i.e., knowledge) requirement for aiding

and abetting liability, Rosemond v. United States, 134 S. Ct. 1240

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(2014), demands that García I came out the wrong way.6 See United

States v. Holloway, 630 F.3d 252, 258 (1st Cir. 2011) (noting that

we may reopen a matter "when an existing panel decision is

undermined by controlling authority, subsequently announced, such

as an opinion of the Supreme Court." (citation, quotations, and

alterations omitted)). We are not moved by this argument.

In Rosemond, the Supreme Court was tasked with deciding

"what the Government must show when it accuses a defendant of

aiding or abetting" a § 924(c) offense. 134 S. Ct. at 1243. The

Court held that "the Government makes its case by proving that the

defendant actively participated in the underlying . . . violent

crime with advance knowledge that a confederate would use or carry

a gun during the crime's commission." Id. "[T]hat means knowledge

at a time the accomplice can do something with it -- most notably,

opt to walk away." Id. at 1249-50.

Rosemond, while a significant change in the law for some

circuits, does nothing for García's case.7 As his counsel

essentially conceded at argument, this court had already been

6
Given that the government does not argue on this appeal that
García was convicted as a principal, we assume for purposes of
resolving this appeal that García was convicted as only an aider
and abettor to the armed robbery.
7
Nor does our decision in United States v.
Rodríguez-Martinez, 778 F.3d 367, 373 (1st Cir. 2015), which
García cites in support of his argument. Rodríguez-Martinez does
not reflect any change in our law, but only our application of
existing law to the specific facts of that case.

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applying the "advance knowledge" requirement for aiding and

abetting a § 924(c)(1) crime prior to Rosemond. See id. at 1244

(noting that some circuits, including this one, already had

established law "that a defendant aids and abets a § 924(c) offense

only if he intentionally takes some action to facilitate or

encourage his cohort's use of the firearm" (citation and quotations

omitted)); Medina-Román, 376 F.3d at 5-6 ("Knowledge is the central

element of the crime of aiding and abetting the carrying or use of

a firearm in violation of § 924(c)(1). To support aiding and

abetting criminal liability under 18 U.S.C. § 2, that knowledge

cannot be mere knowledge of a likelihood that a firearm will be

carried or used but rather must amount to a practical certainty of

the other's carrying or use."); United States v. Spinney, 65 F.3d

231, 239 (1st Cir. 1995) (requiring the government to adduce

evidence "suggesting that firearms were actually contemplated in

the planning stages, or that [aider and abettor] had any actual

knowledge that [principal] would be armed"); United States v.

Vázquez-Castro, 640 F.3d 19, 24 (1st Cir. 2011) ("To show aider and

abettor liability, the government must prove that the defendant

knew to a 'practical certainty' that the principal would use a

weapon during the commission of the crime. . . . '[P]ractical

certainty is a rubric that calls for proof verging on actual

knowledge.'" (quoting Spinney, 65 F.3d at 238)). Thus, we do not

believe (and García certainly has not convinced us) that Rosemond

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changed or even undermined our existing law, as it pertains to the

requirement that an aider and abettor of a § 924(c) crime have

advance knowledge of the principal's intent to use a weapon.8 It

follows, then, that Rosemond did not enhance the knowledge required

of an aider and abettor of § 924(j).

García also has not presented us with any new evidence

that might convince us to change our tune. And he has not

persuaded us that any "manifest injustice looms." See United

States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993). To be sure,

García did not even raise this specific argument on his first

appeal (that the evidence was lacking as to his advance knowledge

that his cohorts would bring a gun to the robbery), which would

have been the appropriate time to do so. He instead chose to

assert he was not even present at the robbery and focused his

arguments on other sufficiency and evidentiary issues. "[N]o

credible explanation has been offered for [his] failure to assert

the challenge in a more timely fashion." See id. Even at this

last-ditch juncture, García has made no solid effort to convince us

a blatant error occurred when we made our García I sufficiency

determination (or when we upheld it in García II). García does not

parse out why the specific evidence presented to the jury at his

trial was not enough to convict him of aiding and abetting armed

8
Because we need not, we do not cast judgment on whether some
other aspect of Rosemond's holding might be distinguishable from
our pre-Rosemond case law.

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robbery. See United States v. Wallace, 573 F.3d 82, 89 (1st Cir.

2009) ("A finding of manifest injustice requires a definite and

firm conviction that a prior ruling on a material matter is

unreasonable or obviously wrong, as well as a finding of

prejudice." (citation and quotations omitted)). In sum, García did

not convince us in 2008 that he was wrongly convicted based on a

lack of evidence, and he has not convinced us today to go back on

our finding.9

Thus, despite García's persistence, neither twice -- nor

thrice -- over were his sufficiency arguments good to repeat. We

see no reason to disturb our 2008 finding that the government

presented sufficient physical and circumstantial evidence at trial

that García participated in the robbery, and the relief he seeks

simply cannot be achieved by making the same repeated request over

multiple appeals. As we have said before, and as is applicable

here, "[t]he law of the case doctrine dictates that all litigation

9
To the extent García argues that the district court did not
sufficiently capture the knowledge requirement in its aiding and
abetting jury instruction, we see two insurmountable problems.
Given that Rosemond did not espouse any relevant change in our
existing law, García should have challenged the aiding and abetting
instruction in a prior appeal. See Moran, 393 F.3d at 11. Our
decisions in García I and García II provide no indication that
García disputed the aiding and abetting instruction during those
appeals; nor does García's brief on this appeal.
In any event, García's one-sentence supplication (in a letter
submitted post-briefing) asking us to consider this issue does not
give us enough to go on, and so this issue is waived for lack of
development. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).

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must sometime come to an end." Bell, 988 F.2d at 252. García's

insistence that he was "merely present" at the scene of the crime

is a non-starter. We will not further belabor the point.

The Sentence

Next, García argues the district court erred at

sentencing in three respects. First, the judge failed to

adequately address why García's sentence did not line up with the

sentences given to other defendants in similar cases, and had the

court made such a consideration, García's sentence would have been

closer to 15 years. Second, the judge mistakenly "continued" his

restitution order, even though he had never ordered restitution in

the first place. And third, his sentences for Counts One and Three

should be served concurrently, not consecutively, as the district

court ordered.

Reasonableness

In assessing whether a district court has committed a

sentencing error, we "must first ensure that the district court

committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines

range." United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)

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(citation and quotations omitted). "Once the appellate court has

satisfied itself that the sentence is procedurally sound, it must

proceed, under the same abuse of discretion rubric, to review the

substantive reasonableness of the sentence, taking into account the

totality of the circumstances." Id. (citation omitted).

Here, García focuses on the procedural reasonableness of

his sentence,10 arguing that the district court refused to consider

his arguments that the sentences handed down in similar reported

cases should guide the court's sentence in his case, thus

preventing us from being able to "conduct a meaningful review of

the [substantive] reasonableness of the District Court's sentence."

We make short shrift of this argument. 18 U.S.C. § 3553(a)(6) says

that a sentencing court must consider, among a number of other

factors, the need to "avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct." García cited several cases to the district court

in arguing that like the defendants in those cases, García's

involvement in the crimes for which he was convicted was minimal,

warranting a lower-end sentence.

10
"The lack of an adequate explanation can be characterized
as either a procedural error or a challenge to the substantive
reasonableness of the sentence." United States v. Crespo-Rios, No.
13-2216, 2015 WL 2445616, at *10 (1st Cir. May 22, 2015). Given
that García's arguments focus on the district court's supposed
failure to "explain why [his] arguments were being rejected on the
record," and the lack of any developed argument as to what his
sentence should have been, we deem García's reasonableness
challenge to be a procedural one.

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 While the district court did not specifically distinguish

every one of the cases García cited, it need not have. The "record

makes manifest" that the judge considered García's arguments

regarding § 3553(a)(6), rejecting them because "when you decide to

go in a car and attack a person that most probably is with a

weapon, to take $63,000, you have to know for sure that there may

be somebody killed." See also United States v. Madera-Ortiz, 637

F.3d 26, 31 (1st Cir. 2011) ("We have confirmed that a sentencing

court's explanation need not be precise to the point of pedantry."

(citation and quotations omitted)). The courts in the comparator

cases García offered found those defendants' criminal participation

to be minimal. Here, the district court said enough to indicate

that García was not in the same camp. Thus, we find that the

sentence was not procedurally unreasonable.

Restitution

We also make quick work of García's argument regarding

the propriety of the district court's restitution order. The

government has conceded error, and we agree one occurred and that

the proper recourse is a remand on this issue.

A district court is statutorily required "to order a

defendant to make restitution to victims of certain enumerated

crimes of violence," including armed robbery. United States v.

Salas-Fernandez, 620 F.3d 45, 48 (1st Cir. 2010); 18 U.S.C. §

3663A(a)(1), (c)(1)(A). An "order for restitution should be

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tailored to require return of the purloined property or its

equivalent." Salas-Fernandez, 620 F.3d at 48.

At García's most recent sentencing, the district judge

ordered that restitution "continue[] to be part of the judgment,"

even though (the mandatory) restitution had never previously been

ordered, such that it could continue. While a "detailed

explication of the court's reasoning" in imposing a restitution

order is not necessary, id., the court here provided none.

Particularly, the court did not at all address whether a payment

schedule would be appropriate. See id. at 49 (citing 18 U.S.C. §

3664(f)(2)) ("The [Mandatory Victims Restitution Act] requires a

court, in setting out a payment schedule, to consider a defendant's

financial circumstances and prospects."). Thus, given the court's

mistaken view that it was merely continuing an already-imposed

restitution order, we think the appropriate course of action

another remand to allow the court to properly address restitution.11

11
García also claims that the government waived the right to
even ask for restitution because it failed to request it at his
prior sentencings. But García has provided no compelling (or even
developed) argument as to why the district court would not be
permitted to order statutorily-mandated restitution at
resentencing, and so this argument is waived. In any event, in the
García II remand we gave the district court broad discretion to
"unbundle and reconstitute the sentencing package." 657 F.3d at
31. See United States v. Pileggi, 703 F.3d 675, 680 (4th Cir.
2013) ("Because the appellate court had set aside the defendant's
entire sentence and remanded for a de novo resentencing, the remand
order had effectively wiped the slate clean."). To the extent
García has more specific objections to the restitution order (such
as the amount imposed, the victims to whom it will be paid, etc.),
these issues should be fleshed out and addressed on remand.

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 Consecutive Sentences

Finally, García argues in a pro se brief that at re-

sentencing, the district court erroneously ordered he serve the

sentences for Count One and Count Three consecutively, as opposed

to concurrently.12 A plucky effort, given that García had to chart

this course pro se, we still find his shot sailed wide.

The backdrop for García's argument is § 924(c)'s mandate

that "no term of imprisonment imposed on a person under [§ 924(c)]

shall run concurrently with any other term of imprisonment imposed

on the person, including any term of imprisonment imposed for the

crime of violence . . . during which the firearm was used, carried,

or possessed." 18 U.S.C. § 924(c)(1)(D)(ii). Recall that the

second time the district judge sentenced García, he ordered that

the sentence for the § 924(c) conviction run consecutively to the

felony murder sentence.

Then, in García II, we vacated the § 924(c) conviction

and sentence for double jeopardy reasons and remanded for re-

sentencing. We also noted in García II that in light of the fact

that we vacated the § 924(c) conviction,

12
Despite the government's misrepresentation to the contrary,
this claim was preserved below. Not only did García brief the
issue in his sentencing memorandum, but both sides argued it at
sentencing. Therefore, we review this claim for abuse of
discretion, as we would other preserved claims of sentence
unreasonableness. See United States v. Martin, 520 F.3d 87, 92
(1st Cir. 2008).

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 the statutory requirement that a part of the
sentencing package run consecutively arguably
applies to section 924(j) (count 3). In view
of these circumstances, we think it likely
that the district court may wish to unbundle
and reconstitute the sentencing package . . .
the district court may also wish to ameliorate
the overall sentence in light of the reduced
number of counts on which sentence will be
imposed.

García II, 657 F.3d at 31 (citations omitted).

With our warning in mind, the government argued at re-

sentencing that García's § 924(j) sentence must run consecutively

to his § 1951(a) sentence because even though the § 924(c)

conviction was vacated, the underlying felony was still based on a

violation of § 924(c).13 García disagreed, arguing that the court

was not required to impose consecutive sentences, but acknowledged

that the court bore the discretion to do so. After engaging with

both sides on the issue, the court ultimately imposed consecutive

sentences.

Here's where García falls short. Although the district

court did end up handing down consecutive sentences, the court

rejected the government's argument that the consecutive sentences

were mandatory, and instead exercised its discretion to impose

consecutive sentences. Notably, when the government argued that

13
Recall that § 924(j) provides that a "person who, in the
course of a violation of [§ 924(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."

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the court was required to run the sentences consecutively, the

judge responded: "I don't think that that's the law . . . . Read

the last paragraph of [García II]. [It] says that I could run it

consecutively or concurrently." While the government continued to

argue the point (and while the court heard additional argument from

García), it seems clear to us that the court was not adopting the

government's take on the law. Therefore, since the district court

was merely exercising its discretion to impose consecutive

sentences, García's argument that the court erred in thinking it

had to impose them is misplaced.14 Beside the fact that his counsel

conceded at sentencing that the district court had such discretion,

the general sentencing principle under 18 U.S.C. § 3584(a) is that

"[m]ultiple terms of imprisonment imposed at the same time run

concurrently unless the court orders or the statute mandates that

the terms are to run consecutively." (Emphasis added). García has

not directed us to any cases or other authority that says his

sentences must run concurrently, and we are aware of none.

García's argument holds no water.

14
We recognize, as García points out in his pro se brief, that
our sister circuits are split on whether § 924(j) incorporates by
reference § 924(c)'s prohibition on concurrent sentences for the
underlying crime of violence and the felony murder sentence. See,
e.g., United States v. Berrios, 676 F.3d 118, 139 (3d Cir. 2012)
(adopting the majority rule that § 924(j) does prohibit concurrent
sentences); United States v. Julian, 633 F.3d 1250, 1253 (11th Cir.
2011) (adopting the opposite rule). We have not decided this issue
one way or another, and need not today, given that the district
court only used its discretion to impose consecutive sentences.

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 THE ADIEU

For these reasons, we affirm García's conviction and

sentences, save the restitution order, which we vacate and remand

consistent with this opinion.

We expect that this fourth sentencing will provide some

finality to this protracted appellate matter.

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