United States v. Cruz-Rivera

United States Court of Appeals
For the First Circuit

No. 16-1321

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS CRUZ-RIVERA, a/k/a CHIQUI, a/k/a CANO,
a/k/a CANO LLORENS,

Defendant, Appellant.

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

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

Before

Thompson, Kayatta, and Barron,
Circuit Judges.

Ines McGillion, with whom Ines McGillion Law Offices, PLLC,
was on brief, for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, were
on brief, for appellee.

September 14, 2018
 BARRON, Circuit Judge. Carlos Cruz-Rivera ("Cruz")

appeals his convictions and sentence for federal carjacking and

weapons counts. For the reasons that follow, we affirm.

I.

On September 9, 2015, Cruz was indicted in the District

of Puerto Rico on three counts of carjacking in violation of 18

U.S.C. § 2119 and three counts of violating 18 U.S.C. § 924(c),

which prohibits using or carrying a "firearm" during a "crime of

violence." Id. § 924(c)(1)(A). Carjacking in violation of § 2119

was the predicate "crime of violence" for each of the § 924(c)

counts. In addition, the indictment charged Cruz with one count

of possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1).

Cruz pleaded guilty to the three carjacking counts and

proceeded to trial on the remaining four counts. In doing so, he

stipulated that he had committed the carjacking offenses. However,

at the close of the government's evidence, and again at the close

of his own evidence, Cruz moved for a judgment of acquittal as to

the three § 924(c) counts. He did so on the ground that the

underlying carjacking in violation of § 2119 that served as the

predicate crime for each of these counts did not qualify as a

"crime of violence" for purposes of § 924(c). See Fed. R. Crim.

P. 29.

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 The District Court denied both motions. On October 15,

2015, a jury convicted Cruz of all of the remaining counts. Cruz

was then sentenced to 872 months of prison and five years of

supervised release. This appeal followed.

II.

We begin with Cruz's contentions that none of his three

convictions for carjacking under § 2119 were for an offense that

qualifies as a "crime of violence" under § 924(c) and thus that

these convictions cannot stand. Cruz preserved this issue below,

which is one of law, and so our review is de novo. United States

v. Willings, 588 F.3d 56, 58 (1st Cir. 2009).

Section 924(c) makes it a crime for "any person [to],

during and in relation to any crime of violence . . . use[] or

carr[y] a firearm, or [to], in furtherance of any such crime,

possess[] a firearm[.]" 18 U.S.C. § 924(c)(1)(A). Section 924(c)

then defines a "crime of violence" as follows:

[A]n offense that is a felony and (A) has as
an element the use, attempted use, or
threatened use of physical force against the
person or property of another, [the force
clause] or (B) that by its nature, involves a
substantial risk that physical force against
the person or property of another may be used
in the course of committing the offense [the
residual clause].

18 U.S.C. § 924(c)(3) (emphasis added).

The first of these two clauses is referred to as the

"force clause." See United States v. Rose, 896 F.3d 104, 106 (1st

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Cir. 2018). The second is known as the "residual clause." Id.

So long as an offense is encompassed by either clause, it qualifies

as a "crime of violence." Id.

To assess whether a predicate crime qualifies as a "crime

of violence" under the force clause of § 924(c), "we apply a

categorical approach. That means we consider the elements of the

crime of conviction, not the facts of how it was committed, and

assess whether violent force is an element of the crime." United

States v. Taylor, 848 F.3d 476, 491 (1st Cir.), cert. denied, 137

S. Ct. 2255 (2017).

The federal carjacking statute states that "[w]hoever,

with the intent to cause death or serious bodily harm takes a motor

vehicle that has been transported, shipped, or received in

interstate or foreign commerce from the person or presence of

another by force and violence or by intimidation, or attempts to

do so," 18 U.S.C. § 2119, shall "be fined under this title or

imprisoned not more than 15 years, or both," id. § 2119(1).1 Cruz

asks us to treat this offense as what is known as an indivisible

1 Two of Cruz's counts charged him with violating § 2119(1).
One count charged Cruz with violating § 2119(2), which requires
the same conduct as § 2119(1), but carries a 25-year statutory
maximum sentence and additionally requires, as relevant here, that
"serious bodily injury . . . results." Id. § 2119(2). But, both
types of § 2119 violations require that the taking of a motor
vehicle be accomplished "by force and violence or by intimidation,"
id., and thus our analysis applies equally to Cruz's convictions
under both § 2119(1) and § 2119(2).

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crime, such that if any of its elements categorically exceed the

scope of the force clause, we must find that it is not encompassed

by that clause. See Descamps v. United States, 570 U.S. 254, 271-

73 (2013) (differentiating between divisible and indivisible

crimes). And Cruz then goes on to argue that the elements of

§ 2119 do not, categorically, fall within the force clause.

Cruz premises this contention on the fact that

carjacking under § 2119 can be accomplished by "intimidation." He

asserts that, in consequence of this element, the government need

not prove the defendant used "physical force," 18 U.S.C.

§ 924(c)(3)(A), as the force clause requires of those offenses

that it encompasses. But, even assuming that § 2119 is indivisible

as Cruz contends, we have held, as the government points out, that

the force clause encompasses federal bank robbery even though that

offense, too, may be committed through "intimidation." United

States v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017) (holding that

bank robbery was a "crime of violence" under United States

Sentencing Guideline 4B1.1(a)); 18 U.S.C. § 2113(a); see also

Hunter v. United States, 873 F.3d 388, 390 (1st Cir. 2017)

(applying Ellison to § 924(c) and holding that intimidation was

sufficient to establish "violent force" under § 924(c)(3)(A)).

Given that § 2119 additionally requires that the government prove

that a defendant committed the carjacking offense "with the intent

to cause death or serious bodily harm," 18 U.S.C. § 2119, we do

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not see how Ellison and Hunter may be distinguished. Nor does

Cruz offer any explanation of how they might be.

Accordingly, we conclude that the force clause

encompasses Cruz's § 2119 convictions. We thus reject Cruz's first

challenge without addressing his additional contention, which the

government vigorously disputes, that the residual clause is

unconstitutionally vague in light of Johnson v. United States, 135

S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

III.

Cruz next argues that § 924(c) is unconstitutional --

both facially and as applied to his case. He bases this argument

on his contention that this statute criminalizes conduct that has

no nexus to interstate commerce and thus that, under United States

v. Lopez, 514 U.S. 549 (1995), Congress lacks the power to

criminalize such conduct pursuant to its commerce power under

Article I of the United States Constitution. See Art. I § 8,

cl. 3.

Cruz did not raise this issue below, and so our review is

only for plain error. United States v. Vilches-Navarrete, 523

F.3d 1, 11 (1st Cir. 2008). Cruz thus needs to demonstrate that

"(1) there was error; (2) the error was plain; (3) the error

affected [his] substantial rights; and (4) the error adversely

impacted the fairness, integrity, or public reputation of judicial

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proceedings." United States v. Riggs, 287 F.3d 221, 224 (1st Cir.

2002). Cruz has not done so.

With respect to his facial challenge, Cruz contends that

Congress exceeded its powers under the Commerce Clause in enacting

§ 924(c) because the statute does not require the government to

prove that the defendant's prohibited conduct has a connection to

interstate commerce. But, Cruz does not argue that the definition

of a "crime of violence" under § 924(c), on its face, encompasses

offenses that exceed Congress's commerce power. In fact, that

definition, for the reasons that we have just explained,

encompasses the offense of carjacking in violation of 18 U.S.C.

§ 2119 and that offense requires the government to prove that the

car was "transported, shipped, or received in interstate or foreign

commerce[.]"

The fact that Cruz does not contend that § 924(c)'s

definition of a "crime of violence" on its face encompasses

offenses with no nexus to interstate commerce is significant.

Every circuit to have considered the type of constitutional

challenge that Cruz raises here has concluded that "[j]urisdiction

under § 924(c) is derived from jurisdiction over a predicate

offense, the 'crime of violence.'" United States v. Moran, 845

F.2d 135, 137 (7th Cir. 1988); see also United States v. Ricketts,

317 F.3d 540, 543 (6th Cir. 2003); United States v. Ferreira, 275

F.3d 1020, 1028 (11th Cir. 2001); United States v. Walker, 142

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F.3d 103, 111 (2d Cir. 1998); United States v. Crump, 120 F.3d

462, 466 (4th Cir. 1997); United States v. Harris, 108 F.3d 1107,

1109 (9th Cir. 1997); United States v. Brown, 72 F.3d 96, 97 (8th

Cir. 1995).

Cruz does argue that, notwithstanding this body of

precedent, there must be some limit to Congress's power under the

Commerce Clause to criminalize the means of carrying out an

offense, even if that underlying offense itself falls within

Congress's commerce power. And he then goes on to contend that,

because § 924(c) is a separate offense for which a violator faces

harsh penalties, the government must separately prove that there

is a nexus between the use of the firearm and interstate commerce.

Cruz does not explain, however, why Congress's power

under the Commerce Clause to prohibit the conduct encompassed by

§ 924(c) depends on there being a nexus to the "firearm" rather

than to the "crime of violence[.]" Nor do we see why Congress's

power in that regard would be so limited, given that the

defendant's commission of a qualifying predicate offense is no

less an element of § 924(c) than is the defendant's use of a

particular type of weapon in carrying out that predicate crime.

Thus, Cruz fails to provide a reason why we should depart from the

consensus among our sister circuits that rejects Commerce Clause-

based facial challenges to § 924(c), let alone why we should do so

while reviewing only for plain error.

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 Cruz also makes two as-applied constitutional challenges

to his convictions, for which our review is also only for plain

error. But these challenges, too, are without merit.

First, Cruz contends that, because the government did

not have to prove that the "firearm" in his case had a nexus to

interstate commerce, his § 924(c) convictions are unconstitutional

as applied. But, as we have just explained, Cruz fails to show

that, under the Commerce Clause, Congress must require the

government to prove that the "firearm" used in the § 924(c) offense

-- rather than the "crime of violence" itself -- has a nexus to

interstate commerce. Thus, there is no merit to this challenge.

Cruz separately contends that his § 924(c) convictions

are unconstitutional in application because the jury did not find

beyond a reasonable doubt that the predicate "crime of violence"

that he was found to have committed -- carjacking under 18 U.S.C.

§ 2119 -- had a nexus to interstate commerce. But, he does not

dispute that the government introduced into evidence a stipulation

in which Cruz agreed that he had committed all of the elements of

§ 2119 carjacking counts, including that the cars involved in the

offenses at issue had been transported in interstate commerce.

Thus, this as-applied challenge fails as well.

IV.

Cruz next challenges the sufficiency of the evidence for

his § 924(c) convictions. As he preserved this issue below, our

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review is de novo. United States v. De León-Quiñones, 588 F.3d

748, 751 (1st Cir. 2009). In assessing this claim, "we examine

the evidence, both direct and circumstantial, in the light most

favorable to the prosecution and decide whether that evidence,

including all plausible inferences drawn therefrom, would allow a

rational factfinder to conclude beyond a reasonable doubt that the

defendant committed the charged count or crime." Id. (quoting

United States v. Cruz-Díaz, 550 F.3d 169, 172 n.3 (1st Cir. 2008)).

Cruz argues that "[t]he evidence was insufficient to

establish a real firearm was used in the carjackings." His premise

for this argument is correct. Convictions under § 924(c) require

the government to prove beyond a reasonable doubt that an actual

firearm, not a toy or replica, was used. United States v. Taylor,

54 F.3d 967, 975 (1st Cir. 1995).

Cruz goes on to contend, however, that we should hold

that "where the government does not produce the gun and introduce

expert evidence [that] it is real and can be fired, eyewitness

testimony categorically, and as a matter of law, is not sufficient

to demonstrate a suspected firearm is real." But, we do not agree.

We have held that, with respect to the defendant's use

of a "firearm" under § 924(c), "the government's proof need not

'reach a level of scientific certainty.' Descriptive lay testimony

can be sufficient to prove that the defendant used a real gun."

Cruz-Díaz, 550 F.3d at 173 (quoting United States v. Roberson, 459

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F.3d 39, 47 (1st Cir. 2006)). We have further held that "a witness

need not be familiar with firearms, nor have held the weapon to

testify that it was real." United States v. Martinez-Armestica,

846 F.3d 436, 441 (1st Cir.), cert. denied, 138 S. Ct. 64 (2017);

see also De León-Quiñones, 588 F.3d at 752 (finding there was

sufficient evidence that firearm was real based on witness

testimony as to color of gun and circumstantial evidence that

victims were afraid of the gun). And, as a panel, we may not

reject our rulings in Cruz-Díaz, Roberson, and De León-Quiñones,

as Cruz urges us to do. See United States v. Bishop, 453 F.3d 30,

31 (1st Cir. 2006) ("[A]bsent 'supervening authority sufficient to

warrant disregard of established precedent,' we . . . are bound to

follow [it]." (quoting Lattab v. Ashcroft, 384 F.3d 8, 15 (1st

Cir. 2004)).

Cruz also argues that, even under our precedent, the

evidence presented here was insufficient to prove that he used a

"firearm." He observes, correctly, that the government never

produced the weapon that had been used in at least two of the

carjackings, and he contends that the government failed to put

forth enough evidence to permit a jury reasonably to rule out the

possibility that he had used his cousin's BB gun in committing

each of the carjackings. He thus argues that, because a BB gun is

not a "firearm" within the meaning of § 924(c) -- a point that the

government does not dispute -- the evidence was insufficient to

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show that he had used a "firearm" in committing the "crime of

violence" that served as the predicate for each of his § 924(c)

convictions. But, the record shows otherwise.

For one thing, Cruz's cousin testified that his BB gun

was on his desk for the entire period during which the carjackings

occurred. Thus, the jury reasonably could have credited that

testimony and rejected the notion that a BB gun had been used in

any of the carjackings.

For another, the government put forth affirmative

evidence that a "firearm" had been used in committing each of those

offenses. The victim of the second carjacking testified that she

"kn[e]w the difference between a pistol and a revolver," that the

defendant's gun was a pistol, and that it "look[ed] exactly like"

a black pistol that law enforcement found in Cruz's home after his

arrest and introduced as evidence at trial. Thus, a jury could

reasonably find that Cruz used a "firearm" to commit that offense.

See Martinez-Armestica, 546 F.3d at 440 (witness's testimony that

she knew the difference between a pistol and a revolver allowed

jury to conclude she "had some familiarity with firearms," and

permitted jury to conclude that evidence of gun's realness was

credible).

Given that the victims of the other two carjackings each

also testified in some detail that the defendant had used a gun in

committing the carjackings that they endured, a jury could have

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inferred from the victims' testimony in combination that Cruz had

access to multiple "firearms" and had used one in committing each

of these crimes. And that is at least the case in light of the

many other similarities in each victim's testimony about the way

in which the assailant carried out each carjacking. Cf. United

States v. Soto, 720 F.3d 51, 55-56 (1st Cir. 2013) (holding that

proof that defendant knew some stolen identities belonged to real

people could be used by the jury to infer that the defendant knew

the other identities he stole belonged to real people).

To be sure, the victims did not each offer the same

description of the weapon used by the assailant, and only one of

their descriptions -- the second victim's -- was of a weapon that

matched the black pistol that the police had found in Cruz's home.

But, the description of the gun that the victim of the first attack

gave in her testimony -- a silver "revolver" -- could not plausibly

describe the BB gun. And, while the gun described by the victim

of the third carjacking could potentially describe the BB gun, the

jury heard testimony, as we have noted, that Cruz's cousin

possessed the BB gun during the entire relevant period. Moreover,

the government put forth undisputed circumstantial evidence that

each victim "reacted as if the gun was real, following [Cruz's]

various orders," which the jury was entitled to consider when

concluding that Cruz "carried a real firearm." De León-Quiñones,

588 F.3d at 752.

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 In sum, we must draw all inferences in favor of the

verdict. And here, the jury was given strong evidence that a

"firearm" had been used in the second carjacking, and heard

testimony from each of the other victims that both supported the

inference that a real gun had been used in their attacks and made

clear that each of the carjackings was carried out in strikingly

similar way. We thus conclude that the evidence did suffice to

permit a reasonable jury to conclude that Cruz used a "firearm" in

carrying out each of the predicate carjackings. Accordingly,

Cruz's sufficiency challenge to his convictions fails.

V.

Cruz's final ground for challenging his § 924(c)

convictions is that the District Court erred in instructing the

jury as to what the government had to prove. As he did not

challenge the instructions below, however, our review is for plain

error. See United States v. Olano, 507 U.S. 725, 736 (1993).

Cruz challenges the following portion of the District

Court's instruction to the jury:

[T]hat the law does not require that the
actual specific firearms used in the
commission of the charged offense be found,
brought to the court, and be marked in
evidence. That is not required. Instead, if
credited by you, the descriptive testimony of
an eyewitness that the gun was real as opposed
to a toy or a replica can be sufficient to
prove that the firearm or firearms were real.
The testimony of just one witness can support

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 a finding that the firearm or firearms were
real as defined above.

Cruz argues that the district court plainly erred in giving this

instruction because it "dispens[ed] with the government's burden

to produce the gun, and instead permitt[ed] lay witness testimony

that the gun 'appeared' real to sustain a conviction." But, as we

have already explained, our case law is clear in providing that

"[d]escriptive lay testimony can be sufficient to prove that the

defendant used a real gun." Cruz-Díaz, 550 F.3d at 173 (quoting

Roberson, 459 F.3d at 47). Thus, we reject this challenge, too.

VI.

For the foregoing reasons, the judgment below is

affirmed.

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