United States Court of Appeals
For the First Circuit
No. 11-2076
UNITED STATES OF AMERICA,
Appellee,
v.
HERNARDO MEDINA-VILLEGAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan Pérez-Giménez, U.S. District Judge]
Before
Boudin, Selya and Lipez,
Circuit Judges.
Michael C. Bourbeau and Bourbeau & Bonilla, LLP on brief for
appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Luke Cass, Assistant United States Attorney, on brief
for appellee.
November 27, 2012
SELYA, Circuit Judge. A jury convicted defendant-
appellant Hernardo Medina-Villegas on nine counts growing out of a
conspiracy to commit armed robbery and the unlawful killing of a
guard during the robbery. In an earlier multi-defendant appeal, we
affirmed the appellant's convictions and sentences on eight of the
nine counts. See United States v. Catalán-Roman, 585 F.3d 453, 475
(1st Cir. 2009). As to the remaining count, however, we affirmed
the appellant's conviction but vacated his sentence in order to
afford him an opportunity to allocute. See id. At resentencing on
that count, the district court heard the appellant's allocution and
proceeded to reinstate the original sentence of life imprisonment
without the possibility of release.
The appellant again repairs to this court claiming that
the reimposed sentence is both procedurally and substantively
unreasonable. In addition, he attempts to raise a double jeopardy
claim that the district court declined to address on remand. After
careful consideration, we affirm.
Our earlier opinion contains an exegetic discussion of
the background facts, the charges lodged against the appellant, and
the travel of the case, see id. at 457-60, and we assume the
reader's familiarity with that account. For present purposes, a
sketch suffices.
A federal grand jury sitting in the District of Puerto
Rico indicted the appellant and others on charges arising out of
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the robbery of an armored truck and the killing of a guard. After
a trial, the jury convicted the appellant on nine counts. The
counts pertinent to this appeal are counts eight and nine. Count
eight charges the appellant with aiding and abetting the use and
discharge of firearms during and in relation to a crime of violence
death resulting. See 18 U.S.C. §§ 2, 924(j). Count nine charges
the appellant with aiding and abetting the use and discharge of
firearms during and in relation to a crime of violence. See id.
§§ 2, 924(c)(1)(A)(iii). At the time of the original disposition,
the district court sentenced the appellant, inter alia, to life
imprisonment without the possibility of release (count eight) and
a consecutive term of thirty years' imprisonment (count nine).
On his first appeal, the appellant advanced a broad array
of claims. With respect to count eight, he argued (among other
things) that the district court had not afforded him an opportunity
to allocute. We found merit in this claim, vacated the sentence on
count eight, and remanded to give the appellant a concinnous
opportunity to allocute. See Catalán-Roman, 585 F.3d at 475.
At the resentencing hearing, the appellant asked the
district court to entertain a double jeopardy argument addressed to
count nine. The court, apparently deeming such an issue to be
beyond the scope of the remand, declined to adjudicate it. It then
heard the appellant's allocution on count eight and reinstated the
sentence previously imposed. This timely appeal ensued.
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We start with the sentence imposed on count eight.
Although the appellant's brief is amorphous, we assume, favorably
to him, that his challenge to his sentence encompasses both
procedural and substantive grounds.
We review preserved objections to both the procedural and
substantive reasonableness of a sentence for abuse of discretion.
See Gall v. United States, 552 U.S. 38, 46 (2007); United States v.
Martin, 520 F.3d 87, 92 (1st Cir. 2008). "The review process is
bifurcated: we first determine whether the sentence imposed is
procedurally reasonable and then determine whether it is
substantively reasonable." United States v. Clogston, 662 F.3d
588, 590 (1st Cir. 2011).
The appellant's claim of procedural error rests on the
provisions of 18 U.S.C. § 3553. Pertinently, this statute requires
the sentencing court to consider the variety of available
sentences, see id. § 3553(a)(3), and to "state in open court the
reasons for its imposition of the particular sentence," id.
§ 3553(c). In this regard, the appellant notes that the jury could
not agree on a life sentence for count eight and, therefore, the
district court had the option to impose a lesser sentence.1 Given
1
The Federal Death Penalty Act provides in relevant part that
when a jury is unable to agree on a sentence of death or life
imprisonment without possibility of release, the court may impose
either a sentence of life imprisonment without possibility of
release or any lesser sentence authorized by law. See 18 U.S.C.
§ 3594.
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this circumstance, he argues that the court's failure either to
state why it did not select a lesser sentence or to explain its
reasons for the reimposed sentence constitutes reversible error.
This claim of error comes late in the day. At
resentencing, the appellant did not object to the court's failure
to offer an explanation of the reasons underlying the sentence, nor
did he object to the proceeding on any related ground.
Accordingly, his present claim has not been preserved, and our
review is for plain error. See United States v. Pakala, 568 F.3d
47, 56 (1st Cir. 2009).
The test for plain error is familiar. As we said in
United States v. Duarte, 246 F.3d 56 (1st Cir. 2001), "[r]eview for
plain error entails 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."
Id. at 60.
It is settled law that a district court's failure
adequately to explain a sentence as required by section 3553(c),
without more, is not plain error. See United States v. Mangual-
Garcia, 505 F.3d 1, 16 (1st Cir. 2007). Rather, "a reversal under
plain error review requires a reasonable probability that, but for
the error, the district court would have imposed a different, more
favorable sentence." Id. at 15 (internal quotation marks omitted).
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This is equally true when the claim of error is focused on an
alleged failure to comply with section 3553(a). See, e.g., United
States v. Guzmán, 419 F.3d 27, 32 (1st Cir. 2005).
"[T]o establish a reasonable probability of a different
sentence . . . the appellant has the burden of identifying specific
facts that convince us that the district court considered a
significant improper factor, failed to consider a significant
proper factor, or made a significant error in balancing the
factors." Mangual-Garcia, 505 F.3d at 16. As we explain below,
the appellant has not made such a showing.
To begin, the appellant's sentence on count eight is
within the Guideline Sentencing Range (GSR) for the offense of
conviction. This time around, the district court heard the
appellant's full allocution as well as arguments of counsel.
Moreover, the sentencing judge had presided over the trial and was
intimately familiar with the nuances of the case. To cinch the
matter, the appellant has not identified any factors that make it
likely that he would receive a different sentence on remand.2
The upshot is that, on this record, the likelihood of a
different sentence on remand is an empty hope unsubstantiated by
any plausible rationale. Accordingly, there is no principled way
2
By the same token, our review of the record yields no such
inkling. As we chronicle in more detail when dealing with the
substantive reasonableness of the sentence, the crime embodied in
count eight was heinous and the appellant's role in it was major.
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that we can find plain error arising out of the district court's
failure to effect literal compliance with the "explanation"
requirement of section 3553.3
The appellant next asserts that his sentence on count
eight is substantively unreasonable. Our consideration of this
claim starts with our recognition that the sentence — life
imprisonment without the possibility of release — falls within the
GSR for the offense of conviction.
This is an important datum. As we explained in an
earlier case, challenging a sentence as substantively unreasonable
is a burdensome task — and one that is even more operose where, as
here, the challenged sentence is within a properly calculated GSR.
See Clogston, 662 F.3d at 592-93. It follows inexorably that a
"defendant who protests his within-the-range sentence on this
ground must adduce fairly powerful mitigating reasons and persuade
us that the district court was unreasonable in balancing pros and
cons." Id. at 593 (internal quotation marks omitted). Under this
standard, it is not enough that we, if sitting as a court of first
instance, might have selected a more lenient sentence. See United
States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011).
3
To the extent that the appellant argues that the district
court failed to consider lesser sentencing outcomes, such an
argument is undercut by statements made at the sentencing hearing
by the appellant and his counsel, both of whom attempted to
persuade the district court that the appellant's post-conviction
rehabilitation warranted something other than a life sentence.
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The appellant has not come close to crossing this
threshold. The offense of conviction is grave. The day before the
robbery, the appellant carjacked a getaway vehicle and stole from
it a Glock pistol. He then participated in the robbery of an
armored truck and the murder of a guard assigned to that truck,
using the purloined Glock. He was the first of the malefactors to
open fire during the confrontation — and he did so at close range.
When, as now, the record makes manifest that an armed defendant
played a leading part in a premeditated robbery of an armored
vehicle, resulting in the death of a guard, a sentence of life
imprisonment cannot plausibly be said to be unreasonable. See
United States v. Morales-Machuca, 546 F.3d 13, 25-26 (1st Cir.
2008) (rejecting claim of substantive unreasonableness advanced by
one of the appellant's codefendants who also received a life
sentence).
This leaves the appellant's contention that his
conviction and sentence on count nine violate the Double Jeopardy
Clause. See U.S. Const. amend. V. Some background is helpful to
put this claim into perspective.
During the first appeal in this case, another defendant
successfully argued that count nine was a lesser included offense
of count eight, thereby constituting a double jeopardy violation.
See Catalán-Roman, 585 F.3d at 472. The appellant, however, did
not preserve this issue; indeed, we noted that, "[o]ddly," he had
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never "argued that [his] convictions on counts eight and nine
violate double jeopardy." Id. at 472 n.25. We therefore declined
to extend the same relief to the appellant as we extended to the
codefendant who raised the issue. Id.
At the resentencing hearing, the appellant sought to
interject a belated double jeopardy claim with respect to count
nine. The district court refused to consider his entreaty.
Double jeopardy "forbids successive prosecution and
cumulative punishment for a greater and lesser included offense."
Brown v. Ohio, 432 U.S. 161, 169 (1977). Consequently, courts may
not impose multiple punishments for what is essentially the same
offense. Id. at 165; Allen v. Att'y Gen. of Me., 80 F.3d 569, 572
& n.3 (1st Cir. 1996). While the appellant's claim of double
jeopardy appears at first blush to fall within this proscription,
there is a rub.
Here, the appellant's double jeopardy claim was fully
matured and could have been advanced at the time of his first
appeal. Yet he did not preserve it, and the original panel
dismissed the claim on that basis. See Catalán-Roman, 585 F.3d at
472 n.25.
The law of the case doctrine "bars a party from
resurrecting issues that either were, or could have been, decided
on an earlier appeal." United States v. Matthews, 643 F.3d 9, 12-
13 (1st Cir. 2011). Hence, a successor appellate panel in the same
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case is normally bound to respect the decision of the original
panel. Id. at 13. In this instance, there has been no material
change in the applicable law between the time of the first appeal
and the present time. The appellant's fleeting reference in his
brief to the "serious injustice" arising out of the claimed double
jeopardy violation is undone by our earlier observation that his
"conviction on count nine does not and cannot affect his sentence,
which is life imprisonment," see Catalán-Roman, 585 F.3d at 472
n.25; and, thus, the normal rule applies. Consequently, the law of
the case doctrine binds us to honor the original panel's
disposition. We therefore uphold the district court's refusal to
take a fresh look at the double jeopardy claim (without prejudice,
however, to whatever rights the appellant may have to pursue that
claim in a petition brought under 28 U.S.C. § 2255).
We need go no further.4 For the reasons elucidated
above, we reject the appellant's claims of error.
Affirmed.
4
Because no further proceedings are required in the district
court, we do not reach the appellant's request that future
proceedings should be conducted before a different district judge.
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