United States v. Castro-Vazquez

United States Court of Appeals
For the First Circuit

No. 13-1508

UNITED STATES,

Appellee,

v.

ADEMIR CASTRO-VAZQUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Barron, Selya, and Dyk,*
Circuit Judges.

Susan Z. Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Carmen M. Márquez-Marín, Assistant United States
Attorney, were on brief, for appellee.
Sharon L. Beckman, with whom Larissa Warren and Graham D.
Welch were on brief, for defendant-appellant.

September 4, 2015

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. Ademir Castro-Vasquez pled guilty to

being a prohibited person in possession of a firearm in violation

of 18 U.S.C. § 922(g)(1). On appeal he challenges his conviction

and the 78-month sentence imposed by the United States District

Court for the District of Puerto Rico. We affirm Castro-Vazquez’s

conviction, but we vacate and remand for reconsideration of the

sentence because the district court erred in its approach to

applying a ten-level sentencing enhancement under the United States

Sentencing Guidelines ("guidelines") § 2K2.1(a)(2).

I.

On September 26, 2012, acting on an anonymous tip, Puerto

Rico Police Department officers were investigating the presence of

suspicious persons at a gas station in Trujillo Alto, Puerto Rico.

They observed Castro-Vazquez, allegedly pacing nervously,

accompanied by another man, Allen Miranda-Melendez, filling a

container with gas for a car parked nearby at the side of a rural

road. One officer observed a bulge on Castro-Vazquez’s waist.

After stopping the two men at the parked car, Castro-Vazquez was

asked to lift up his shirt, which he refused to do. One of the

officers then lifted up Castro-Vazquez’s shirt, and saw a firearm

on his waist, at which point both men were arrested.

Castro-Vazquez was charged with being a convicted felon

in possession of a firearm under 18 U.S.C. § 922(g)(1). Miranda-

Melendez was charged with conspiring with Castro-Vazquez to commit

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robbery under 18 U.S.C. § 1951(b)(1), though Castro-Vazquez was not

himself charged with such a conspiracy.

At his arraignment on October 17, 2012, Castro-Vazquez

pled not guilty. The magistrate judge ordered that the parties

would have "7 days for discovery and 14 days thereafter to file any

motions." At a status conference held November 7, 2012, the

district court set trial for December 3, 2012, and refused the

defense counsel’s request for additional time. On November 30,

2012, the defense counsel filed a motion to continue the trial for

one week. The court instead granted a one-day continuance to

December 4.

Two days before trial was scheduled, Miranda-Melendez’s

attorney filed a motion to suppress certain incriminating

statements that Miranda-Melendez had allegedly made. One day

before trial was scheduled, Castro-Vazquez’s attorney also filed a

motion to suppress evidence, including the firearm and a mobile

phone with pictures of the defendant carrying the firearm, seized

at the time of Castro-Vazquez’s arrest. Castro-Vazquez alleged

that this evidence should be suppressed because it was the result

of an unlawful warrantless search, seizure, and arrest in violation

of the Fourth Amendment. In opposing the motion to suppress, the

government raised no timeliness objection to the motion. Instead,

the government argued that the officers had reasonable suspicion to

stop and frisk Castro-Vazquez, and probable cause to arrest him.

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The district court denied both defendants’ motions, stating that,

with respect to Castro-Vazquez’s motion, the court "will not

entertain a motion to suppress filed on the eve of trial." The

court also stated that Miranda-Melendez and Castro-Vazquez should

make their suppression arguments "at trial and as part of the Rule

29 motion." Id.

Miranda-Melendez chose to take the district court’s

recommended course. He went to trial and requested suppression of

the incriminating statements. The district court suppressed the

statements and dismissed his case apparently because, in the

absence of the statements, there was insufficient evidence.

Castro-Vazquez, however, took a different tack. On the morning

trial was to begin and before the jury was empaneled, at about

10:30 A.M., Castro-Vazquez’s counsel asked for ten minutes for a

bench conference, during which she renewed the motion to suppress.

The court again refused to hear the motion, noting that counsel

"filed it hours before trial would start" and that the court "will

not consider a late motion" because "[m]otions to suppress have to

be timely filed." The court also stated that it would allow the

suppression issue to be raised at trial, expressly stating that the

point was "preserv[ed]." The bench conference for both defendants

lasted until about 11:00 A.M. About a half hour later, Castro-

Vazquez requested a change-of-plea hearing. At the colloquy, the

district court asked Castro-Vazquez a number of questions to ensure

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that he understood the charges and was pleading voluntarily. When

asked whether he was satisfied with his attorney’s work, Castro-

Vazquez apparently responded in the affirmative but with what the

district court characterized as a "grimace." The district court

repeated the question and told Castro-Vazquez he did not have to

plead guilty, but Castro-Vazquez noted he was not being forced to

plead guilty, and the court accepted the plea.

Castro-Vazquez was sentenced on March 22, 2013. At his

sentencing hearing, the district court sentenced him to 78 months,

using as a guideline range 63 to 78 months, based on a total

offense level of 22 and a criminal history category of IV. The

total offense level of 22 was calculated by relying on Section

2K2.1 of the Sentencing Guidelines, which provides a prior felony

enhancement for unlawful possession of a firearm. The base offense

level is increased from 14 to 24 "if the defendant committed any

part of the instant offense subsequent to sustaining at least two

felony convictions of either a crime of violence or a controlled

substance offense." U.S.S.G. § 2K2.1(a)(2). The total offense

level was 22 because Castro-Vazquez was also given a two-level

reduction for his acceptance of responsibility. The district court

did not state which of Castro-Vazquez’s prior convictions were

relied on to arrive at the guideline range, relying instead on the

presentence report. The report stated that the base offense level

was calculated pursuant to Section 2K2.1(a)(2), and listed seven

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prior convictions (with three separate concurrent sentences) for

burglary, robbery, and certain drug-related crimes, but the report

also did not state which of those prior convictions were relied on

for the prior felony enhancement. Castro-Vazquez entered no

objections to the contents of the report (though as discussed below

there is a question whether there was verification that Castro-

Vazquez "read and discussed" the report with counsel, see Fed. R.

Crim. P. 32(i)(1)(A)). During sentencing, the district court

recited some facts concerning Castro-Vazquez’s prior criminal

activity alleged in the report, and noted that the sentences for

his prior convictions had been concurrent and too lenient.

II.

Castro-Vazquez challenges the voluntariness of his

unconditional guilty plea. Although both Castro-Vazquez and the

government suggest the standard of review is de novo, in fact we

have yet to decide whether, when a defendant challenges the

voluntariness of a plea on grounds other than a Rule 11 error,

review is de novo even if defendant did not object below. See

United States v. Rodríguez-Morales, 647 F.3d 395, 398 (1st Cir.

2011); Sotirion v. United States, 617 F.3d 27, 34 n.6 (1st Cir.

2010). We need not decide the issue now since we conclude that,

even under a de novo standard of review, Castro-Vazquez’s guilty

plea has not been shown on this record to have been involuntary,

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reserving for a Section 2255 proceeding the question of ineffective

assistance of counsel.

We first address Castro-Vazquez’s complaint that the

district court erred in refusing to decide the motion to suppress

before trial. Federal Rules of Criminal Procedure Rule 12(b)(3)

requires that a motion to suppress "must be raised by pretrial

motion," Fed. R. Crim. P. R. 12(b)(3) (2007), "[b]efore [t]rial,"

id. However, the court "may, at the arraignment or as soon

afterward as practicable, set a deadline for the parties to make

pretrial motions." Id. R. 12(c)(1). Either way, the court "must

decide every pretrial motion before trial unless it finds good

cause to defer a ruling." Id. R. 12(d).

Here, the magistrate judge at arraignment had set a

deadline of "7 days for discovery and 14 days thereafter to file

any motions." Relying on his assertion that discovery in fact was

not completed within the seven-day period and was not completed

until December 3, 2012, Castro-Vazquez avers that his December 3,

2012, motion to suppress was well within the fourteen-day post-

discovery deadline. The only effective deadline, he says, was thus

the default deadline in Rule 12(b)(3): that pretrial motions to

suppress must be filed "[b]efore [t]rial."

"Before trial" in Rule 12(b)(3) means before the jury is

empaneled. The main purpose of Rule 12(d)’s requirement that the

district court hear pretrial motions before trial is that "[w]ere

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a defendant able to delay such a motion until trial, he could

prevent the government from appealing" because jeopardy would have

attached at trial. United States v. Barletta, 644 F.2d 50, 54–55

(1st Cir. 1981). And it is "[o]nce a jury has been sworn [in that]

jeopardy attaches, [and] the government loses its right to appeal

an adverse ruling on suppression." United States v. Nuñez, 19 F.3d

719, 723 (1st Cir. 1994) (quoting United States v. Taylor, 792 F.2d

1019, 1025 (11th Cir. 1986)); see also United States v. Dittus, 453

F.2d 1335, 1336 (3d Cir. 1972) (holding that a renewed motion for

suppression at the time of jury selection was untimely); United

States v. Allied Stevedoring Corp., 241 F.2d 925, 931 (2d Cir.

1957) (holding that motion to suppress delayed until "40 jurors had

been assembled, and the prosecution was about to open" was

untimely). Here Castro-Vazquez filed a motion to suppress the day

before trial began. He argues that because the district court did

not set a deadline requiring the suppression motion to be filed at

an earlier time, the motion was timely, and the district court

erred in finding it to have been untimely. Whether the district

court erred in not deciding the motion before trial and whether

Castro-Vazquez had standing to complain of that error are questions

that we need not address. That is so because, even if not deciding

the motion before trial was error, Castro-Vazquez waived this

argument by pleading guilty unconditionally.

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 It is well-established that an unconditional guilty plea

results in the waiver of errors preceding the plea. As the Supreme

Court held in Tollett v. Henderson, 411 U.S. 258 (1973), "[w]hen a

criminal defendant has solemnly admitted in open court that he is

in fact guilty of the offense with which he is charged, he may not

thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the

guilty plea." Id. at 267. This court has "assiduously followed

the letter and spirit of Tollett, holding with monotonous

regularity that an unconditional guilty plea effectuates a waiver

of any and all independent non-jurisdictional lapses that may have

marred the case’s progress up to that point." United States v.

Cordero, 42 F.3d 697, 699 (1st Cir. 1994). So long as the

unconditional guilty plea is knowing and voluntary, the Tollett

rule applies. See Tollett, 411 U.S. at 267 (the defendant "may

only attack the voluntary and intelligent character of the guilty

plea").1

1
Castro-Vazquez cites dicta in United States v. Gaffney,
469 F.3d 211, 215 (1st Cir. 2006), stating that constitutional
violations that are not "independent" of a plea but rather
"intertwined with the plea itself" might "evade[] Tollett’s
strictures." Id. at 215. But independent of counsel’s potential
ineffective assistance, the district court’s possible violation of
Rule 12 would not rise to the level of a constitutional violation.
In addition, the mere "fact of a pending trial does not serve to
make an eve-of-trial plea involuntary." United States v. White,
734 F.3d 843, 849 (8th Cir. 2013); see also Doe v. Woodford, 508
F.3d 563, 569–72 (9th Cir. 2007) (two hours to consider a plea
bargain did not render plea involuntary).

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 There is no basis to conclude on this record that the

plea was unknowing or involuntary. Castro-Vazquez does not allege

the district court coerced or misinformed him in his change of plea

hearing. See, e.g., Mack v. United States, 635 F.2d 20, 25 (1st

Cir. 1980). Instead, he argues that the guilty plea was

involuntary because of his counsel’s ineffectiveness. His theory

appears to be that the suppression motion was a strong one (as

allegedly evidenced by the success of his co-defendant’s motion)

and that Castro-Vazquez’s counsel was ineffective because she

failed to counsel Castro-Vazquez to go to trial and pursue the

suppression motion.

In such circumstances, this court will not review a claim

of ineffective assistance of counsel on direct appeal. See United

States v. Vázquez-Larrauri, 778 F.3d 276, 293–94 (1st Cir. 2015)

("As a general rule, this court does not review ineffective

assistance of counsel claims on direct appeal . . . except[] where

the critical facts are not genuinely in dispute and the record is

sufficiently developed . . . ." (internal quotation marks,

citations omitted)); United States v. Torres-Rosario, 447 F.3d 61,

64 (1st Cir. 2006) ("Sixth Amendment attacks on counsel are rarely

allowed on direct appeal because they require findings as to what

happened and, as important, why counsel acted as he did —

information rarely developed in the existing record."); United

States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (same).

-10-
 Castro-Vazquez relies on United States v. Mercedes-De La

Cruz, 787 F.3d 61 (1st Cir. 2015), as permitting a direct appeal

challenge to counsel’s effectiveness, but that case is

distinguishable. There, in a "rare case," id. at 63, this court

reviewed an ineffective assistance of counsel claim on direct

appeal because it was clear that the defense attorney simply "never

filed a motion to suppress on behalf of [the defendant], much less

a timely one," id. at 67, even though the motion would "quite

likely" have been meritorious, id. at 68, and his co-defendants,

who had less plausible grounds for doing so, did file timely

motions, id. at 67. But here, there is a question whether the

suppression motion Castro-Vazquez did file was in fact timely. And

further, Castro-Vazquez’s claim involves highly fact-dependent

questions as to whether Castro-Vazquez was adequately counseled to

plea when his suppression motion could be considered at trial.

"An ineffective assistance of counsel claim that requires

further factual determinations should be brought through a

collateral proceeding in district court under 28 U.S.C. § 2255."

United States v. Reyes, 352 F.3d 511, 517 (1st Cir. 2003); see also

Mala, 7 F.3d at 1063 ("When faced with similar situations in

comparable cases, we have routinely dismissed the relevant portion

of the appeal without prejudice to the defendant's right to

litigate his ineffective assistance claim through the medium of an

application for post-conviction relief."). In this case, the

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ineffective assistance of counsel claim is sufficiently complex

that the district court may find it desirable to appoint counsel if

Castro-Vazquez petitions for Section 2255 relief. See Mala, 7 F.3d

at 1063–64 (directing district court to appoint counsel for Section

2255 proceeding because constitutional claim was colorable,

factually and legally complex, and incarcerated appellant was

hampered in his ability to investigate undeveloped facts).

III.

We now turn to issues concerning Castro-Vazquez’s

sentencing. Castro-Vazquez objects to the prior felony enhancement

pursuant to Section 2K2.1 of the guidelines, which resulted in a

total offense level of 22. As explained above, the district court

apparently derived the prior felony enhancement from the

presentence report’s description of Castro-Vazquez’s prior

convictions. Section 2K2.1 provides for a prior felony enhancement

"if the defendant committed any part of the instant offense

subsequent to sustaining at least two felony convictions of either

a crime of violence or a controlled substance offense." U.S.S.G

§ 2K2.1(a)(2). Castro-Vazquez contends that his prior convictions

did not satisfy the requirement of at least two crime-of-violence

or controlled-substance offenses.

Below, Castro-Vazquez failed to object to the sentence

imposed, so our review is for plain error. See United States v.

Serrano-Mercado, 784 F.3d 838, 844–45 (1st Cir. 2015). Castro-

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Vazquez must thus demonstrate "(1) that an error occurred (2) which

was clear or obvious and which not only (3) affected [his]

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).

Before the district court, the government relied on

several prior convictions listed in the presentence report,

including robbery, burglary, and drug convictions.2 On appeal,

however, the government does not argue that Castro-Vazquez’s drug

convictions qualify as predicate offenses and relies only on the

robbery and burglary convictions. Under this approach, if either

the burglary or robbery conviction failed to qualify as a "crime of

violence," there would have been no basis for an enhancement.

The guidelines define the term "crime of violence" in

Section 2K2.1(a)(2) as:

[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that —
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.

2
Also listed in the report were illegal appropriation and
aggravated damages convictions with sentences served concurrently
with the burglary conviction. The parties apparently agree that
those are not relevant to this appeal.

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U.S.S.G. § 4B1.2(a).3 Thus, to qualify as a crime of violence, a

prior conviction must contain an element of the threat, use, or

attempted use of force, be one of the "enumerated offenses," such

as burglary of a dwelling, or fall within what is known as the

"residual clause" because it involves conduct that "presents a

serious potential risk of physical injury." See United States v.

Ramirez, 708 F.3d 295, 300 (1st Cir. 2013). In order to determine

whether a prior conviction counts as a crime of violence, we apply

the framework outlined by the Supreme Court in Descamps v. United

States, 133 S. Ct. 2276 (2013). See United States v. Ramos-

González, 775 F.3d 483, 504–05 (1st Cir. 2015).4 We look to the

elements of the prior convictions as defined by the relevant

statute — not to the particular facts underlying the convictions,

see Descamps, 133 S. Ct. at 2283 — and we compare those to the

elements of the crimes described in the guideline’s definition.

If the statute is indivisible, we apply a "categorical

approach." Id. (citing Taylor v. United States, 495 U.S. 575

(1990)). Under that approach, if the statute has the same elements

3
The term is defined in Section 2K2.1 by cross-reference
to the term as it is used in Section 4B1.1, part of the career
offender guidelines.
4
The definition of "crime of violence" is "nearly
identical" to the definition of "violent felony" in the Armed
Career Criminal Act, so courts "consistently have held that
decisions construing one of these phrases generally inform the
construction of the other." Serrano-Mercado, 784 F.3d at 843 n.4
(internal quotation marks, citation omitted).

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as the "generic" crime as defined in the guidelines, then the prior

conviction serves as a predicate offense under the guidelines. Id.

If the elements of the indivisible statute sweep more broadly than

the generic crime, then the conviction cannot count as a predicate

offense, "even if the defendant actually committed the offense in

its generic form." Id. (emphasis added).

If, but only if, the statute is "divisible" — that is, it

comprises multiple, alternative versions of a crime not all of

which qualify as a predicate offense — then we apply a "modified"

categorical approach, whereby a limited set of "Shepard" documents,

such as the charging documents, plea agreements, plea colloquies,

jury instructions, and verdict forms, may be consulted to determine

which of a statute’s alternative elements formed the basis of the

prior conviction. Id. at 2283–84 (citing Shepard v. United States,

544 U.S. 13, 17, 25–26 (2005)). However, the modified approach

"retains the categorical approach’s central feature: a focus on the

elements, rather than the facts, of a crime." Id. at 2285.

The district court did not at the time of sentencing have

the benefit of the Supreme Court’s Descamps decision. Nonetheless,

we conclude that the district court’s approach may have been

inconsistent with the Descamps framework.

With respect to Castro-Vazquez’s burglary conviction,

Castro-Vazquez argues that it cannot be a "crime of violence"

because burglary under Puerto Rico law does not have an "unlawful

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entry" requirement as does generic burglary under Section 4B1.2.

See Taylor, 495 U.S. at 598. In that respect, Castro-Vazquez

suggests, the Puerto Rico burglary statute is much like the

California one that the Supreme Court considered in Descamps, in

which the Court held that the lack of an unlawful entry element

made the California statute overbroad under the categorical

approach. See 133 S. Ct. at 2285–86 (noting the "simple

discrepancy between generic burglary and the [state] crime" is that

the "former requires an unlawful entry along the lines of breaking

and entering").

The Puerto Rico burglary statute states that it is

unlawful for "[a]ny person who enters a dwelling . . . with the

purpose of committing any crime involving an unlawful taking or a

felony." P.R. Laws Ann. Tit. 33, § 4831. The statute is thus

indivisible with respect to entry — it clearly does not contain

multiple, alternative elements of separate crimes with respect to

the type of entry required.5 See Descamps, 133 S. Ct. at 2285 &

5
This is not to say the statute is indivisible in all
respects. The "place" element of the statute, for instance,
recites alternative places where burglary can occur. See P.R. Laws
Ann. Tit. 33, § 4831. Similarly, in Descamps, the California
burglary statute at stake was indivisible with respect to entry,
133 S. Ct. at 2282, 2285, but also listed in the alternative many
different places burglary could occur. See Cal. Penal Code Ann.
§ 459 (West 2010) (providing that a "person who enters" a list of
alternative locations with intent to commit certain crimes is
guilty of burglary).

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n.2. Descamps made it clear that the "focus [is] on the elements,

rather than the facts, of a crime." 133 S. Ct. at 2285.

Here, we are concerned that the district court’s approach

was inconsistent with Descamps’ stricture because the district

court relied on the factual allegations of the presentence report

rather than addressing whether the Puerto Rico burglary statute

requires unlawful entry as an element of the offense. The

government in its briefs on appeal makes no effort to square the

approach below with Descamps’ approach, which requires determining

whether the Puerto Rico burglary statute requires unlawful entry as

an element.

It is true, of course, that plain error review presents

a high bar, and the failure to follow the Descamps framework would

not necessarily constitute plain error. See Serrano-Mercado, 784

F.3d at 845–46. However, as we also explained in Serrano-Mercado,

the plain error standard can be overcome where there has been

intervening legal authority that makes clear that the district

court’s approach was inconsistent with the intervening legal

authority. See Serrano-Mercado, 784 F.3d at 849; United States v.

Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) (holding that

district court commits prejudicial plain error in characterizing a

conviction as a crime of violence if, at the time of appeal,

intervening law makes clear that a conviction does not necessarily

qualify categorically as a crime of violence); Henderson v. United

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States, 133 S. Ct. 1121, 1127–28 (2013) (plain error assessed

according to law at time of appeal, even if prior law was merely

unsettled).

At the time of Castro-Vazquez’s sentencing on March 22,

2013, the Supreme Court had not yet decided Descamps (decided June

20, 2013). After sentencing, Descamps established that in the case

of an indivisible statute, such as the burglary statute here, the

facts surrounding a particular prior conviction cannot qualify it

as a predicate offense if the statute itself sweeps too broadly.

See United States v. Fish, 758 F.3d 1, 14 (1st Cir. 2014) (noting

that Descamps "clarified the ornate rules" of this approach, in

particular clarifying that "the only way a facially overbroad

statute can qualify as a[] . . . predicate" is via the modified

categorical approach in the case of divisible statutes). The law

in this circuit before Descamps was not entirely settled as to

whether facts alleged in a presentence report could be used to show

a prior conviction is a predicate offense. See United States v.

McVicar, 907 F.2d 1, 2 (1st Cir. 1990) (relying on conduct alleged

in a presentence report and what robbery "typically involves,"

concluding that robbery was a crime of violence); see also United

States v. Martinez, 762 F.3d at 135–36 (noting that the statement

in United States v. Davis, 676 F.3d 3, 9 & n.5 (1st Cir. 2012),

that the facts recited in a presentence report, if relied on, would

"almost certainly be sufficient to show" harmful battery was

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"likely no longer the correct standard" after Descamps). Here, the

record does not show the district court made any inquiry at all

into the elements of the Puerto Rico burglary statute, which is

enough in these circumstances to overcome the limitations otherwise

imposed by plain error review. See Torres-Rosario, 658 F.3d at

116–17.

We address one other argument concerning Castro-Vazquez’s

burglary conviction.6 Castro-Vazquez contends that his burglary

conviction was a misdemeanor rather than a felony punishable by

imprisonment for over one year, thus preventing the conviction from

being a predicate offense. See U.S.S.G. § 2K2.1, Application Note

1 (defining "felony conviction" for purposes of Section 2K2.1 as

"an offense punishable by death or imprisonment for a term

exceeding one year"). His argument seems to be that he was

convicted for attempted burglary rather than attempted aggravated

burglary. He argues that, because the former is not an offense

punishable under Puerto Rico law with imprisonment for over one

year, it is a misdemeanor, while the latter, which is punishable by

6
Castro-Vazquez argues in a footnote that the location
elements of the Puerto Rico burglary and aggravated burglary
statutes (requiring a person to enter "a dwelling, building or
other construction or structure or its dependencies or annexes,"
P.R. Laws Ann. Tit. 33, § 4831, and, in the case of aggravated
burglary, that such entry be while the building is "inhabited," id.
§ 4832) are also overbroad. We deem these cursory arguments
waived. See Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38,
60 n.1 (1st Cir. 1999) ("We have repeatedly held that arguments
raised only in a footnote or in a perfunctory manner are waived.").

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a term exceeding a year, would be a felony. See P.R. Laws Ann.

Tit. 33, § 4831 (burglary "shall incur a misdemeanor"); id. § 4832

(aggravated burglary "shall incur a third degree felony"); id.

§ 4644 (misdemeanors punishable by imprisonment for up to ninety

days; third-degree felonies punishable by imprisonment between

three and eight years). Even if we were to conclude that any error

in characterizing the burglary conviction as a felony were not

plain error, we think the district court should consider this issue

on remand. Here, "we have already concluded that the judgment

should be remanded to correct [another error], and we have broad

authority to shape a remand in the interests of justice." United

States v. Merric, 166 F.3d 406, 412 (1st Cir. 1999) (citing 28

U.S.C. § 2106).

As for Castro-Vazquez’s arguments with respect to the

robbery convictions, we conclude again that a remand is required in

the light of Descamps. Puerto Rico’s robbery statute criminalizes

a person’s "unlawfully tak[ing] personal property belonging to

another in the immediate presence of said person and against

his/her will by means of violence or intimidation." P.R. Laws Ann.

Tit. 33, § 4826. Castro-Vazquez contends that neither of the

alternative crimes established by this apparently divisible robbery

statute — criminalizing robbery either by "violence" or by

"intimidation" — qualifies as a crime of violence. According to

Castro-Vazquez, intimidation is defined under Puerto Rico law to

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include mere moral or psychological pressure, and violence is

defined under Puerto Rico law to include the slightest use of

force. Either way, the prior offense would fall short of the

guidelines requirement that the offense include an element of

"physical force," which is defined as "violent force — that is,

force capable of causing physical pain or injury to another

person," Martinez, 762 F.3d at 133 (quoting Johnson v. United

States, 559 U.S. 133, 140 (2010)); see also Johnson, 559 U.S. at

140 ("violent" in ACCA connotes a "substantial degree of force").7

Here, just as with the burglary conviction, the district court made

no inquiry at all into the elements of either type of robbery under

Puerto Rico law. Thus, given that Descamps clarified that even the

"modified" categorical approach "retains the categorical approach's

central feature: a focus on the elements, rather than the facts, of

a crime," Descamps, 133 S. Ct. at 2285, we follow Torres-Rosario

in holding that a remand is required to consider these issues in

the light of Descamps. If the district court concludes that only

one of the divisible crimes of the robbery statute constitutes a

crime of violence, it will be required to determine whether proper

7
"Robbery" is also listed as an example of a "crime of
violence" in the guidelines. See U.S.S.G. § 4B1.2, Application
Note 1. That does not change our conclusion. See United States v.
Ramirez, 708 F.3d 295, 302 n.8 (1st Cir. 2013) (noting that we
apply the categorical approach to determining whether a prior
conviction falls within a generic definition of an enumerated
offense, including those listed in application notes (citing United
States v. Walker, 595 F.3d 441, 445–46 (2d Cir. 2010) ("robbery" in
Section 4B1.2, Application Note 1))).

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Shepard materials establish that Castro-Vazquez was convicted of

that offense. See Torres-Rosario, 658 F.3d at 117.

We decline on appeal to accept the government’s

invitation, presented for the first time in its Rule 28(j) letter,

to decide whether unlawful entry was an element of the Puerto Rico

burglary statute, whether the burglary offense was a felony or

misdemeanor, and whether and to what extent violent physical force

is an element of both divisible parts of the Puerto Rico robbery

statute. See Ruskai v. Pistole, 775 F.3d 61, 66–67 (1st Cir. 2014)

(Rule 28(j) "should not be used to introduce new arguments"). Upon

remand, the district court should address in the first instance

such questions. If on remand, the district court concludes that

the guidelines calculation was erroneous and that an enhancement

was not warranted, resentencing will be required. See United

States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013). Here, there is

a "reasonable likelihood ‘that, but for the error, the district

court would have imposed a different, more favorable sentence.’"

United States v. Ortiz, 741 F.3d 288, 293–94 (1st Cir. 2014)

(quoting United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st

Cir. 2006)).

It remains to consider the residual clause in the

guidelines’ definition of "crime of violence," allowing a prior

conviction to be a predicate offense where it "otherwise involves

conduct that presents a serious potential risk of physical injury

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to another." U.S.S.G. § 4B1.2(a). Intervening authority has

called the residual clause into question. In Johnson v. United

States, 135 S. Ct. 2551 (2015), the Supreme Court struck down a

residual clause with identical language in the Armed Career

Criminal Act ("ACCA") as unconstitutionally vague. See 135 S. Ct.

at 2555–56, 2560 (holding that the residual clause in the ACCA’s

definition of "violent felony" is unconstitutional). The structure

and the language of the two residual clauses are substantially the

same. See United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014).

We do not decide whether the residual clause of the guidelines

fails under Johnson. See United States v. Tichenor, 683 F.3d 358,

363–65 (7th Cir. 2012) (rejecting vagueness challenge to the "crime

of violence" definition because the guidelines are merely

advisory). We hold only that if on remand the government relies on

the residual clause (it has disclaimed such reliance on appeal),

the constitutional issue must be addressed.

Moreover, although the government does not argue on

appeal that Castro-Vazquez’s prior drug convictions count as

"controlled substance offenses" under Section 4B1.2(b) of the

guidelines, this should not be treated as a waiver, and the

government, if it so chooses, should be permitted to attempt to

establish on remand that those offenses qualify under the

guidelines as predicate offenses. See Torres-Rosario, 658 F.3d at

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117 ("On remand, the government remains entitled to establish the

ACCA designation . . . .").

Finally, while Castro-Vazquez also argues on appeal that

the district court did not abide by Rule 32's requirement that the

court "verify" the defendant "read and discussed" the presentence

report with his counsel, see Fed. R. Crim. P. 32(i)(1)(A), we do

not address this issue here, since we assume any such potential

error will be corrected on remand. In addition, Castro-Vazquez’s

argument that the district court erred in sentencing him at the top

of the guidelines range may become moot in light of the remand.

See Ramos-González, 775 F.3d at 509. We do not now address the

issue.

CONCLUSION

We affirm Castro-Vazquez’s conviction, but we remand for

further proceedings as to his sentence consistent with this

opinion.

AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDED.

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