Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-1123
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS AYALA-LÓPEZ, a/k/a Macro,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Rachel Brill for appellant.
Tiffany V. Monrose, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
were on brief, for appellee.
August 5, 2015
Per Curiam. Appellant Carlos Ayala-López ("Ayala") was
convicted of drug trafficking (Count One), aiding and abetting in
a murder (Count Five), and four firearms offenses related to those
crimes (Counts Two, Three, Four, and Six).1 In his first appeal,
we ordered the district court to vacate the firearms convictions on
Counts Two and Four because they violated the Double Jeopardy
Clause. United States v. Ayala-López, 493 F. App'x 120, 126 (1st
Cir. 2012). Consequently, two firearms convictions remained, along
with their corresponding sentences: a 25-year sentence on Count
Three for violation of 18 U.S.C. § 924(c); and a life sentence on
Count Six for violation of 18 U.S.C. §§ 924(c), 924(j), and 2.
On remand, Ayala contended that his 25-year sentence for
Count Three, imposed under § 924(c)(1)(C)(i) for a "second or
subsequent conviction under this subsection," was no longer
appropriate. With the vacatur of Counts Two and Four, he argued,
Count Three represented his sole subsection (c) conviction and,
hence, only a 7-year sentence was justified. See
§ 924(c)(1)(A)(ii) (prescribing a minimum 7-year consecutive
sentence for brandishing a firearm). The district court declined
to adjust Ayala's sentence, reasoning that Count Six, which charged
him with violating both § 924(j) and the lesser-included offense,
1
A more detailed recitation of the facts underlying Ayala's
convictions may be found in United States v. Ayala-López, 493 F.
App'x 120, 122 (1st Cir. 2012).
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§ 924(c), represented a predicate subsection (c) conviction capable
of supporting the 25-year sentence on Count Three.
Ayala has preserved only one argument for appellate
review.2 He claims that "calling conduct that predates another act
by a month a 'second or subsequent conviction,' is entirely
unwarranted." In other words, he contends that Count Three cannot
be "second or subsequent" to Count Six because the conduct charged
in Count Three occurred earlier than the conduct charged in Count
Six. That argument is foreclosed by precedent.
In United States v. Deal, the Supreme Court addressed the
"second or subsequent conviction" language in § 924(c)(1)(C) and
held: "[W]e think it unambiguous that 'conviction' refers to the
finding of guilt by a judge or jury that necessarily precedes the
entry of a final judgment of conviction." 508 U.S. 129, 132
(1993). The Court explained that, when Congress wrote of a second
or subsequent "conviction," it did not mean a second or subsequent
"offense." Id. at 134-35. For example, "it is entirely clear
. . . that a defendant convicted of a crime committed in 1992, who
has previously been convicted of a crime committed in 1993, would
2
The majority of the argument section in Ayala's short brief
is devoted to establishing that the district court did not, as a
factual matter, treat Count Six as a (c) conviction at his initial
sentencing. Ayala does not explain how this factual point would
preclude the district court on remand from supporting the enhanced
sentence for Count Three with the (j) conviction from Count Six.
Nor does he argue that a (j) conviction cannot, as a general
matter, count as a (c) conviction for purposes of § 924(c)(1)(C).
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receive the enhanced sentence." Id. at 135. In sum, the temporal
sequence in which the conduct underlying Ayala's convictions
occurred is irrelevant. What matters is the order of the
convictions themselves.
Ayala has not presented any substantive legal argument
that the district court incorrectly ordered his convictions. We
therefore affirm.
So ordered.
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