United States v. Almonte-Nunez

United States Court of Appeals
For the First Circuit

No. 15-2070

UNITED STATES OF AMERICA,

Appellee,

v.

EDWIN OMAR ALMONTE-NÚÑEZ,

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, Dyk, and Thompson,
Circuit Judges.

Michael M. Brownlee, with whom The Brownlee Law Firm, P.A.
was on brief, for appellant.
John P. Taddei, Attorney, Criminal Division, Appellate
Section, U.S. Department of Justice, with whom W. Stephen Muldrow,
United States Attorney, Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, and Julia M.
Meconiates, Assistant United States Attorney, were on brief, for
appellee.

June 18, 2020


Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. Edwin Omar Almonte-Núñez appeals

convictions and sentences imposed by the United States District

Court for the District of Puerto Rico for robbing an individual of

a United States passport in violation of 18 U.S.C. § 2112,

brandishing a firearm during a crime of violence in violation of

18 U.S.C. § 924(c)(1)(A)(ii), and possessing a firearm in

violation of 18 U.S.C. § 922(g)(1) (possession by a convicted

felon). We affirm.

I.

This case returns to this court after resentencing

following the decision in United States v. Almonte-Núñez

("Almonte I"), 771 F.3d 84 (1st Cir. 2014).

As recounted in the earlier decision, on September 30,

2011, Almonte unlawfully entered the residence of a 78-year-old

widow. During this home invasion, Almonte brandished and aimed

towards the victim a loaded pistol, threatened to shoot her, twice

struck her in the face with the pistol, and kicked her after she

fell to the ground. The victim suffered grievous injuries,

including the loss of her right eye. Almonte was thereafter

arrested by Puerto Rico police officers after a high-speed car

chase.

As relevant to this appeal, the Commonwealth of Puerto

Rico court charged Almonte with two counts of violating the Puerto

Rico Weapons Act: carrying and using a firearm without a license

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("Commonwealth count 1") and discharging or pointing a firearm at

another person ("Commonwealth count 2"). Almonte pled guilty to

those charges and on June 6, 2012, was sentenced to ten years and

two years of imprisonment for each count, respectively, to be

served consecutively.

Thereafter, a federal grand jury returned an indictment

charging Almonte with robbing the victim of her United States

passport in violation of 18 U.S.C. § 2112 ("federal count 1"),

brandishing a firearm during a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A)(ii) ("federal count 2"), and possessing

a firearm in violation of 18 U.S.C. § 922(g)(1) (possession by a

convicted felon) ("federal count 3"). On December 12, 2012,

Almonte pled guilty to his federal charges. On June 14, 2013, the

district court sentenced him to 150 months for federal counts 1

and 3, to be served concurrently, and 84 months for federal count

2, to be served consecutively with his sentence for federal counts

1 and 3.

Almonte appealed his federal sentence, arguing that his

150-month sentence for federal count 3 exceeded the statutory

maximum. Almonte I, 771 F.3d at 91. This court held that

Almonte's sentence "constituted clear and obvious error" because

it exceeded the "maximum level of imprisonment [of 120 months]

established by Congress" under 18 U.S.C. § 924(a)(2), and remanded

to the district court with directions "to enter a modified sentence

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of 120 months on [federal count 3]." Id. at 91–92.

On August 21, 2015, the district court conducted a

sentencing hearing in accordance with the remand order. At the

resentencing hearing, Almonte twice expressed a concern that he

was not "being adequately represented [by] [his] counsel," because

of his belief that he was supposed to be resentenced for time

served. App'x 55, 59. Almonte's counsel explained that there was

"nothing in [the remand order] that would lea[d] one to believe

that [he was supposed to be sentenced for time served]." App'x 57.

The district court stated that the issue was waived because Almonte

had not raised it in the first appeal. The district court modified

Almonte's sentence for federal count 3 to 120 months and ordered

that Almonte's federal sentence be served concurrently with the

sentence imposed by the Commonwealth.

Almonte now appeals the sentence imposed at his

resentencing. In his opening brief, he argues that (1) the

district court failed to inquire into his request for substitution

of new counsel and (2) his conviction for federal count 1 under 18

U.S.C. § 2112 did not constitute a predicate "crime of violence"

under 18 U.S.C. § 924(c)(3)(A) for his conviction for federal count

2 under 18 U.S.C. § 924(c)(1)(A)(ii) and that § 924(c)(3)(B) was

unconstitutionally vague under the Supreme Court's decision in

Johnson v. United States, 135 S. Ct. 2551 (2015). Before the

government filed its responsive brief, the Supreme Court decided

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Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016), holding that

under the Double Jeopardy Clause of the Fifth Amendment, the

Commonwealth of Puerto Rico and the United States were not separate

sovereigns. Id. at 1876. This court ordered the parties to file

supplemental briefs addressing whether Almonte's federal

convictions were barred by the Double Jeopardy Clause under Sánchez

Valle. After briefing had concluded, the Supreme Court decided

United States v. Davis, 139 S. Ct. 2319 (2019), which held that 18

U.S.C. § 924(c)(3)(B) ("the residual clause") was

unconstitutionally vague. Id. at 2336. This court again ordered

supplemental briefing from the parties, this time to address the

effect of Davis on Almonte's conviction for federal count 2.

II.

A.

The government urges that Almonte's arguments are barred

by the law of the case doctrine. "Writ large, the law of the case

doctrine 'posits 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.'" United States v. Matthews,

643 F.3d 9, 12 (1st Cir. 2011) (quoting Arizona v. California, 460

U.S. 605, 618 (1983)). "[A] legal decision made at one stage of

a civil or criminal case, unchallenged in a subsequent appeal

despite the existence of ample opportunity to do so, becomes the

law of the case for future stages of the same litigation." United

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States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). This doctrine

"bars a party from resurrecting issues that either were, or could

have been, decided on an earlier appeal." Matthews, 643 F.3d at

12–13.

"The law of the case doctrine has two branches. The

first branch--known colloquially as the mandate rule--'prevents

relitigation in the trial court of matters that were explicitly or

implicitly decided by an earlier appellate decision in the same

case.'" Id. at 13 (emphasis added) (quoting United States v.

Moran, 393 F.3d 1, 7 (1st Cir. 2004)). "The second branch of the

doctrine binds a 'successor appellate panel in a second appeal in

the same case' to honor fully the original decision" and, with

some limited exceptions, "contemplates that a legal decision made

at one stage of a criminal or civil proceeding should remain the

law of that case throughout the litigation, unless and until the

decision is modified or overruled by a higher court." Id. (quoting

Moran, 393 F.3d at 7). Under this doctrine, "[the appellate court]

need not and do[es] not consider a new contention that could have

been but was not raised on the prior appeal." AngioDynamics, Inc.

v. Biolitec AG, 823 F.3d 1, 4 (1st Cir. 2016) (quoting United

States v. Arreguin, 735 F.3d 1168, 1178 (9th Cir. 2013)); see also

M. v. Falmouth Sch. Dep't, 875 F.3d 75, 78 (1st Cir. 2017) ("The

district court correctly concluded that . . . introducing a claim

that could have been raised [in the previous appeal] would be

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inappropriate.").

The government argues that both the district court and

this court are bound by the law of the case because "the sole

purpose of the remand was to impose a 120-month sentence for

[federal count 3] so that it would not exceed the statutory maximum

for that [c]ount." Government's Br. 9–10 (citing Almonte I, 771

F.3d at 92–93). The government suggests that unless this court

"expressly directed otherwise, [the] district court [could] only

consider new arguments or facts on remand that [were] made relevant

by the Court of Appeals decision." Id. at 10 (citing United States

v. Cruzado-Laureano, 527 F.3d 231, 235 (1st Cir. 2008)).

The government relies on United States v. Santiago-

Reyes, 877 F.3d 447 (1st Cir. 2017), which stated that the mandate

rule "generally requires that a district court conform with the

remand order from an appellate court." Id. at 450 (quoting United

States v. Ticchiarelli, 171 F.3d 24, 31 (1st Cir. 1999)). However,

Santiago-Reyes did not purport to overturn the longstanding First

Circuit precedent that "[the mandate] rule cannot apply" to

"issue[s] [that] could not have been raised on the appeal from the

original sentence." United States v. Bryant, 643 F.3d 28, 34 (1st

Cir. 2011). "Whatever [the mandate rule] may preclude as to

arguments that were made and lost or should have been made but

were not, it can hardly extend to arguments that a party could not

reasonably have been expected to make in the prior sentencing."

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Id. at 33–34; see also Matthews, 643 F.3d at 14; United States v.

García-Ortiz, 904 F.3d 102, 106 (1st Cir. 2018).

B.

Almonte's first argument is that the district court

erred when it failed to inquire into his request for substitution

of counsel. The government urges that Almonte's argument is barred

by the mandate rule. We conclude that Almonte's argument is not

barred because it concerns an issue that arose for the first time

in the resentencing hearing. See Bryant, 643 F.3d at 34.

We nonetheless conclude that the district court did not

abuse its discretion in denying Almonte's request for substitution

of counsel. When reviewing a district court's denial of a request

for substitution of counsel, this court "considers not only the

adequacy of the [district] court's inquiry but also factors such

as the timeliness of the motion for substitution and the nature of

the conflict between lawyer and client." United States v. Myers,

294 F.3d 203, 207 (1st Cir. 2002). "The extent and nature of the

inquiry may vary in each case; it need not amount to a formal

hearing." United States v. Woodard, 291 F.3d 95, 108 (1st Cir.

2002). "We . . . limit our focus to whether, in light of the then-

existing circumstances, the court erred in denying the motion."

United States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995)

(reviewing an "analogous" challenge to a district court's denial

of a motion to withdraw as counsel).

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 Here, the untimeliness of Almonte's request weighs

against finding that the district court abused its discretion.

Almonte's request was made five months after this court's decision

in Almonte I, and he does not provide any explanation for the

delay. See Woodard, 291 F.3d at 108 (holding that a request for

substitution of counsel was untimely when made "several months"

after a conflict was known and with "no explanation for why [the

defendant] did not complain earlier").

Further, Almonte's only ground for requesting substitute

counsel was the theory that he should have been sentenced for time

served. At the resentencing hearing, Almonte stated: "I don't

feel I am being adequately represented with this counsel."

App'x 55. Almonte's trial counsel explained that Almonte had

thought that he was being resentenced "for credit for time served,"

but that there appeared to be no "legal argument to be made for

why [Almonte] should be credit[ed] for time served." App'x 57–58.

The district court agreed, and further stated that Almonte had

waived this issue by failing to raise it in his first appeal. When

the district court asked Almonte if he wanted to make an

allocution, Almonte stated: "I don't feel that I'm being

adequately represented with this attorney. When I was sentenced

the first time, the circuit wrote and said that [the district

court] did not count the points for the state cases." App'x 59.

Notably, when prompted for further explanation by the district

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court, Almonte stated "[t]hat's it," and provided no further

justification for his request for substitution of counsel. Id.

When Almonte made his request for new counsel, "the trial court

. . . conduct[ed] an appropriate inquiry into the source of the

defendant's dissatisfaction with his counsel," United States v.

Díaz-Rodríguez, 745 F.3d 586, 590 (1st Cir. 2014), in order to

ascertain whether the court had "good cause for rescinding the

original appointment and interposing a new one." Myers, 294 F.3d

at 206. Here, Almonte did not show good cause for the appointment

of substitute counsel.

On appeal, Almonte asserts for the first time two

additional justifications for his request. First, he argues that

his trial counsel failed to raise an objection to his initial

sentence that exceeded the statutory maximum. But, as Almonte

concedes, that issue was rectified by this court's decision in

Almonte I. Second, he argues that his trial counsel's failure to

raise an argument under Johnson, 135 S. Ct. 2551, subjects his

conviction under federal count 2 to plain error review before this

court. But, as we discuss below, there was simply no error here

under the Davis/Johnson argument. We have no basis to conclude

that the district court abused its discretion by failing to

consider these concerns, since Almonte never raised them before

the district court. Furthermore, neither of these reasons is

sufficient to compel substitution of counsel, even if they had

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been raised at the resentencing hearing. See Woodard, 291 F.3d at

108 ("[T]he defendant must provide the court with a legitimate

reason for his loss of confidence." (quoting United States v.

Allen, 789 F.2d 90, 93 (1st Cir. 1986))).

We conclude that the district court did not abuse its

discretion by denying Almonte's request for substitution of

counsel.

C.

We next address the government's contention that

Almonte's remaining arguments, i.e., that his robbery conviction

under 18 U.S.C. § 2112 is not a predicate "crime of violence" under

Davis and that his federal sentence violates the Double Jeopardy

Clause under Sánchez Valle, are barred by the law of the case

doctrine. "A party may [also] avoid the application of the law of

the case doctrine . . . by showing that, in the relevant time

frame, 'controlling legal authority has changed dramatically.'"

Matthews, 643 F.3d at 14 (quoting Bell, 988 F.2d at 251). In

criminal cases, "when the law changes between the time of a lower

court ruling and the time a subsequent appeal is heard, objections

not interposed before the lower court are deemed forfeited and are

reviewed for plain error." United States v. McIvery, 806 F.3d

645, 651 (1st Cir. 2015) (citing Johnson v. United States, 520

U.S. 461, 466–70 (1997)); and United States v. Barone, 114 F.3d

1284, 1294 (1st Cir. 1997)); see also Fed. R. Crim. P. 52(b).

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"[W]here the law at the time of trial was settled and clearly

contrary to the law at the time of appeal[,] it is enough that an

error be 'plain' at the time of appellate consideration."

Henderson v. United States, 568 U.S. 266, 273 (2013) (second

alteration in original) (quoting Johnson, 520 U.S. at 468).

Conversely, there can be no plain error when the law is unsettled.

See United States v. Delgado-Sánchez, 849 F.3d 1, 11 (1st Cir.

2017); Connelly v. Hyundai Motor Co., 351 F.3d 535, 546 (1st Cir.

2003).

The law of the case doctrine is not a bar to Almonte's

arguments.

D.

Almonte argues that his sentence under

§ 924(c)(1)(A)(ii) must be vacated in light of the Supreme Court's

decision in Davis. Section 924(c)(3) provides two alternative

definitions of "crime of violence":

(A) [a felony that] 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) [a felony] 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).

Before the Supreme Court's Davis decision, a defendant

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could be convicted for violating § 924(c)(1)(A)(ii) if he or she

had committed a predicate "crime of violence" under either

definition in § 924(c)(3). The Supreme Court changed the law by

holding in Davis, that the second definition, referred to as the

"residual clause," § 924(c)(3)(B), was unconstitutionally vague.

Davis, 139 S. Ct. at 2325, 2336. This left the "force clause,"

§ 924(c)(3)(A), as the only operative definition of "crime of

violence" in § 924(c).

In this case, Almonte's conviction under 18 U.S.C.

§ 2112 for robbery serves as the predicate "crime of violence" for

his sentence under § 924(c)(1)(A)(ii). Almonte contends that a

§ 2112 offense is not a "crime of violence" under the force clause.

Almonte relies on United States v. Bell, 158 F. Supp. 3d 906 (N.D.

Cal. 2016), which held that § 2112 "[was] not categorically a crime

of violence under the section 924(c)(3) force clause." Id. at

920–21.

But Bell is not binding on us and, in any case, was

before the Supreme Court's decision in Stokeling v. United States,

139 S. Ct. 544 (2019). In Stokeling, the Supreme Court held that

18 U.S.C. § 924(e)(2)(B)(i) encompassed common law robbery

offenses. 139 S. Ct. at 549–50, 555. Section 924(e)(2)(B)(i),

involved in Stokeling, and section 924(c)(3)(A), involved here,

are part of the same statutory section and use nearly identical

language. Compare 18 U.S.C. § 924(c)(3)(A) (defining "crime of

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violence" as a felony that "has as an element the use, attempted

use, or threatened use of physical force against the person or

property of another"), with 18 U.S.C. § 924(e)(2)(B)(i) (defining

a "violent felony" as a felony crime that "has as an element the

use, attempted use, or threatened use of physical force against

the person of another"). The Supreme Court itself has acknowledged

the similarity between the definitions. See Davis, 139 S. Ct. at

2325–26 (stating that § 924(e)(2)(B)(ii) bore "more than a passing

resemblance to § 924(c)(3)(B)"). "And [courts]

normally presume that the same language in related statutes

carries a consistent meaning." Id. at 2329. Thus, if

§ 924(e)(2)(B)(i) encompasses common law robbery offenses, then so

too must § 924(c)(3)(A). The Eighth Circuit has reached the same

conclusion. United States v. Morris, 775 F. App'x 828, 828 (8th

Cir. 2019). There is no question that the § 2112 robbery offense

(on which the defendant was convicted) is defined as a common law

robbery offense. See Carter v. United States, 530 U.S. 255, 267

n.5 (2000) (explaining that § 2112 "leav[es] the definition of

[robbery] to the common law"). Thus, Almonte's challenge to his

conviction on federal count 2 fails as such conviction was not

erroneous, much less plainly erroneous.

The defendant argues that resentencing is still required

because the district court did not specify which subsection it was

relying on, and the residual clause has now been held

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unconstitutional. The court's decision in García-Ortiz rejected

a similar contention. In García-Ortiz, the defendant asserted

that his Hobbs Act robbery conviction under 18 U.S.C. § 1951(a)

was not a predicate "crime of violence" under § 924(c)(3). García-

Ortiz, 904 F.3d at 104. The district court in that case did not

address which clause of § 924(c)(3) it relied on. See id. at 106

("At the time of García's conviction, there was apparently little

reason to doubt that such an offense satisfied the definition of

a crime of violence contained in the residual clause of section

924(c) . . . ."). The defendant argued that the residual clause

was unconstitutionally vague, and that his Hobbs Act robbery

conviction was not a "crime of violence" under the force clause.

Id. at 105. This court held that "any possible infirmity of

section 924(c)'s residual clause provide[d] [the defendant] with

no exculpation because his . . . robbery still qualifie[d] as a

crime of violence under the force clause of section 924(c)." Id.

at 106; see also United States v. Valdés-Ayala, 900 F.3d 20, 44–

45 (1st Cir. 2018) (reaching a similar result when a district court

order "did not specify" which of two statutory sections for

mandatory and discretionary restitution it relied on, on the basis

that it was proper under the mandatory restitution statute). The

same is true here.

E.

Almonte next argues that his federal convictions must be

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vacated under Sánchez Valle. The Double Jeopardy Clause "protects

against a second prosecution for the same offense after acquittal.

It protects against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for the

same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting

North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). "But two

prosecutions, [the Supreme] Court has long held, are not for the

same offense if brought by different sovereigns--even when those

actions target the identical criminal conduct through equivalent

criminal laws." Sánchez Valle, 136 S. Ct. at 1870. In Sánchez

Valle, the Supreme Court held that the Commonwealth of Puerto Rico

and the United States were not separate sovereigns for the purpose

of double jeopardy analysis. Id. at 1876.

There are limited exceptions under which a defendant may

make a collateral attack on a guilty plea. United States v. Broce,

488 U.S. 563, 574 (1989). Broce set out the standard for double

jeopardy challenges to a conviction following a knowing and

voluntary plea by the defendant. Id. at 576. Broce highlighted

the significance of a guilty plea, explaining that "[b]y entering

a plea of guilty, the accused is not simply stating that he did

the discrete acts described in the indictment; he is admitting

guilt of a substantive crime," id. at 570, and cannot voluntarily

do so without "possess[ing] an understanding of the law in relation

to the facts," id. (quoting McCarthy v. United States, 394 U.S.

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459, 466 (1969)). Given the significance of a guilty plea and the

admissions inherent within, "a guilty plea forecloses a double

jeopardy claim unless 'on the face of the record, the court had no

power to enter the conviction or impose the sentence.'" United

States v. Stefanidakis, 678 F.3d 96, 99 (1st Cir. 2012) (quoting

Broce, 488 U.S. at 569). A defendant must prove his claim by

relying on the existing record and without contradicting the

indictments or admissions inherent in the guilty plea. Broce, 488

U.S. at 576. This is a high threshold that is not easily met.1

Before Sánchez Valle, it was established in this circuit

that the United States and the Commonwealth of Puerto Rico were

separate sovereigns. See, e.g., United States v. López Andino,

831 F.2d 1164, 1168 (1st Cir. 1987) ("[I]t is established that

Puerto Rico is to be treated as a state for purposes of the double

jeopardy clause."), overruled by Sánchez Valle, 136 S. Ct. at 1868.

1 Here, Almonte unconditionally pleaded guilty to federal
counts 1, 2, and 3, and he concedes that the record does not
contain enough information to conclude that a double jeopardy
violation occurred. In fact, he concedes that he cannot discuss
the test outlined in Blockburger v. United States, 284 U.S. 299
(1932), because "it depends on information outside of the record
on appeal and outside of the district court record." See
Appellant's Reply Br. at 5. Although this concession would
ordinarily be fatal to his claim, as it makes evident that he
cannot comply with the standard imposed in Broce, the government
has not argued that Almonte's double jeopardy challenge should be
rejected on these grounds. Instead, the government has taken the
opposite view, arguing that Almonte's PSR provides the information
necessary to address (and reject) his double jeopardy claim on the
merits. We thus proceed to review his double jeopardy claim for
plain error.

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The Supreme Court has now held that "for purposes of the Double

Jeopardy Clause, . . . the Commonwealth and the United States are

not separate sovereigns." Sánchez Valle, 136 S. Ct. at 1876. We

conclude that Sánchez Valle represents a dramatic "intervening

change in controlling legal authority" that justifies an exception

to the law of the case doctrine. Matthews, 643 F.3d at 14. We

therefore address the merits of Almonte's double jeopardy claim

under the applicable plain error standard.

Plain error requires four showings: "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001). Almonte cannot prove that the district court

plainly erred in sentencing him in federal court despite his state

convictions.

Almonte cannot satisfy the first two requirements for

plain error because he cannot show that the court committed an

error which was clear or obvious. We address three questions in

a double jeopardy analysis: "(1) whether jeopardy ever attached;

(2) whether the first proceeding was a decision on the merits; and

(3) whether the subsequent proceeding involves the 'same

offense.'" United States v. Szpyt, 785 F.3d 31, 36 (1st Cir.

2015). Because the parties' arguments center on the third question

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of our double jeopardy analysis--"whether the subsequent

proceeding involves the 'same offense,'" id.--we do the same.

Almonte argues that his federal firearm convictions must

be vacated because the Commonwealth of Puerto Rico had already

sentenced him "for the same criminal conduct." Appellant's First

Supplemental Br. 3. Almonte's contention that Sánchez Valle stands

for the proposition that a defendant cannot be tried in both Puerto

Rico and federal courts for crimes arising from the same conduct

or transaction misinterprets the Supreme Court's holding. Sánchez

Valle merely held that the dual-sovereign doctrine does not bar a

defendant from raising a double jeopardy claim when he is being

subjected to successive prosecutions in Puerto Rico's local courts

and federal courts for the same offense. By so deciding, the

Supreme Court did not alter the framework for analyzing a double

jeopardy claim under the Fifth Amendment. Our focus on double

jeopardy claims continues to be determining whether the successive

prosecutions are for the same offense (under equivalent criminal

statutes). See Gamble v. United States, 139 S. Ct. 1960, 1965

(2019) (emphasizing that the language of the Fifth Amendment's

double jeopardy clause "protects individuals from being twice put

in jeopardy 'for the same offence,' not the same conduct or

actions" (emphases in original) (citations omitted)). For that,

we examine whether each of the offenses requires proof of a fact

that the others do not. Blockburger v. United States, 284 U.S.

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299, 304 (1932). Yet, Almonte does not even attempt to show that

the charges for which he was convicted in federal court do not

require different elements than those required to be proven for

his state convictions. Thus, he cannot show that an error

occurred, much less that a clear or obvious error occurred. The

government, by contrast, has persuasively shown that Almonte's

state and federal convictions were for different offenses.

"The applicable rule is that where the same act or

transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are

two offenses or only one, is whether each provision requires proof

of a fact which the other does not." Id. at 304. For two statutes

to criminalize the same offense, "[t]he conduct described in one

offense must necessarily include the conduct of the second

offense." United States v. Gerhard, 615 F.3d 7, 19 (1st Cir. 2010)

(citing Ball v. United States, 470 U.S. 856, 862 (1985)); United

States v. Woodward, 469 U.S. 105, 107–08 (1985).

We begin with the federal § 922(g) offense. As relevant

to this case, § 922(g) provides:

It shall be unlawful for any person . . . who
has been convicted in any court of, a crime
punishable by imprisonment for a term
exceeding one year . . . to ship or transport
in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or
ammunition; or to receive any firearm or
ammunition which has been shipped or
transported in interstate or foreign commerce.

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18 U.S.C. § 922(g).

"To convict a defendant [under 18 U.S.C. § 922(g)], the

[g]overnment . . . must show that the defendant knew he possessed

a firearm and also that he knew he [was a prohibited person as

contemplated by the statute] when he possessed it." Rehaif v.

United States, 139 S. Ct. 2191, 2194 (2019). The government must

also show that the firearm was "in or affecting interstate

commerce." United States v. Combs, 555 F.3d 60, 65 (1st Cir.

2009).

According to the PSR, the Commonwealth court sentenced

Almonte to 120 months of imprisonment for using a firearm without

a license in violation of the Puerto Rico Weapons Act. This

description makes clear that his conviction was under Article 5.04,

which provides that "[a]ny person who transports any firearm or

any part thereof without having a weapons license, or carries any

firearm without the corresponding permit to carry weapons, shall

be guilty of a felony." 25 L.P.R.A. § 458c (Article 5.04).

Article 5.04 requires the Commonwealth to show that the defendant

(1) transported or carried a firearm (2) without the corresponding

state permit to carry weapons.

Section 922(g) does not require a showing that the

defendant did not have a license, and Article 5.04 does not require

proof that the defendant was a prohibited person or that the

firearm was in or affecting interstate commerce. We conclude that

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the federal § 922(g) offense and the Commonwealth Article 5.04

offense are separate offenses because each offense requires an

element of proof that the other does not. See Blockburger, 284

U.S. at 304.

We now address Almonte's federal § 924(c)(1)(A)(ii)

offense. Section 924(c) provides, in relevant part:

[A]ny 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
. . . if the firearm is brandished, be
sentenced to a term of imprisonment of not
less than 7 years.

18 U.S.C. § 924(c)(1)(A)(ii).

To establish a § 924(c)(1)(A)(ii) offense, the

government must establish that the defendant "brandished" a

firearm "during and in relation to," or "in furtherance of" a

"federal 'crime of violence or drug trafficking crime.'" Davis,

139 S. Ct. at 2324 (quoting 18 U.S.C. § 924(c)(1)(A)).

The Commonwealth offense was for violation of Article

5.15 of the Puerto Rico Weapons Act, which in the relevant part

provides:

[A] person shall be guilty of a felony if:

(1) [h]e willfully discharges any firearm in
a public place or any other place, although no
injury results, or

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 (2) he intentionally, although without malice
aforethought, aims a weapon towards a person,
although no injury results.

25 L.P.R.A. § 458n(a) (Article 5.15(a)).

This court has previously held that Article 5.15 is

divisible, and thus defines "two alternative sets of elements for

two different crimes": (1) "discharging" a firearm and (2)

"pointing" or "aiming" a weapon towards another person. Delgado-

Sánchez, 849 F.3d at 9. The PSR shows that Almonte was convicted

of aiming a firearm at another person under Article 5.15(a)(2),

rather than discharging a firearm under Article 5.15(a)(1).

The federal § 924(c)(1)(A)(ii) offense, unlike Article

5.15(a)(2), requires the proof of a predicate--i.e., separate--

crime of violence or drug trafficking crime. Davis, 139 S. Ct. at

2324. Conversely, Article 5.15(a)(2) requires proof that the

defendant pointed or aimed a firearm at another person, which

§ 924(c)(1)(A)(ii) does not require. On the face of the statutes,

we cannot conclude that every time a defendant "brandishes" a

firearm, he necessarily points the firearm at another person.

Congress defined "brandish[ing]" as any act by the defendant that

"make[s] the presence of the firearm known to another person, in

order to intimidate that person." 18 U.S.C. § 924(c)(4). That

definition includes--but is not limited to--pointing or aiming a

firearm. Thus, because both federal § 924(c)(1)(A)(ii) and

Commonwealth Article 5.15(a)(2) require proof of an element that

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the other does not, the two statutes criminalize different

offenses. See Blockburger, 284 U.S. at 304.

In sum, Almonte focused most of his energy on undermining

the Government's arguments as to why his double jeopardy claim

fails, but he did not establish a prima facie nonfrivolous double

jeopardy claim. The burden of proof was on him, not on the

Government, and Almonte failed to meet it. See United States v.

Laguna-Estela, 394 F.3d 54, 56 (1st Cir. 2005) (holding that a

defendant claiming double jeopardy "has the burden of presenting

evidence to establish a prima facie nonfrivolous double jeopardy

claim. Once such a claim is established, the burden shifts to the

government to prove by preponderance of the evidence that the

indictments charge separate offenses." (quoting United States v.

Booth, 673 F.2d 27, 30-31 (1st Cir. 1982))); see also United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).2

Almonte has not shown plain error.

III.

We conclude that the district court did not abuse its

discretion when it denied Almonte's request for substitution of

counsel, that Almonte's conviction under 18 U.S.C. § 2112 was a

predicate "crime of violence" under 18 U.S.C. § 924(c)(3)(A), and

2 In light of our conclusion that Almonte has not shown
clear error, we need not reach prongs 3 and 4 of the plain error
analysis.

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that, under a plain error standard, Almonte has shown no double

jeopardy violation.

Affirmed.

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