United States v. Rodriguez-Santos

United States Court of Appeals
For the First Circuit

No. 20-1035

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE L. RODRÍGUEZ-SANTOS,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Gelpí, Lipez, and Thompson,
Circuit Judges.

Jose R. Gaztambide-Añeses for appellant.
Jonathan L. Gottfried, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Robert P. Coleman III, Assistant United States
Attorney, were on brief, for appellee.

December 29, 2022
 LIPEZ, Circuit Judge. Jorge Rodríguez-Santos was

convicted of aiding and abetting (1) a carjacking resulting in

death (Count One), (2) kidnapping resulting in death (Count Two),

and (3) the use of a gun during a crime of violence resulting in

murder (Count Three). He appeals his conviction, arguing that the

evidence was insufficient on all counts and that the district court

erred by failing to provide a duress instruction to the jury. He

also contends that his conviction for aiding and abetting the use

of a gun during a crime of violence must be vacated in light of

the Supreme Court's decision in United States v. Davis, 139 S. Ct.

2319 (2019). Finally, he challenges two aspects of his sentence.

We affirm.

I.

Because this appeal concerns, in large part, a

sufficiency of the evidence challenge, "we recount the facts in

the light most favorable to the verdict." United States v.

Paz-Alvarez, 799 F.3d 12, 18 (1st Cir. 2015). They are shocking.

At approximately 5:00 PM on October 10, 2015, Maria Luisa

Mayol-Rivera, driving a white Mitsubishi Lancer, pulled up outside

the home of Melissa Cartagena-Vives and Ricardo Pagan-Rodríguez in

Ponce, Puerto Rico. Cartagena-Vives and Pagan-Rodriguez were

working on a car when Mayol-Rivera arrived. When she approached

the car, Cartagena-Vives saw that Mayol-Rivera was upset, her mouth

was split, her face was covered in blood, and she was drunk.

- 2 -
 Seeing Mayol-Rivera's distress, Cartagena-Vives offered

to call the police, but Mayol-Rivera declined. Instead, as

Cartagena-Vives described, Mayol-Rivera requested "help to catch

the guys [who had] taken her phone from her and . . . beat her

up." Enidza Marie Rodriguez-Figueroa, another witness who had

been outside with Cartagena-Vives, testified that Mayol-Rivera was

scared and had stated that the "guys" -- presumably those who had

beaten her -- "were going to burn her inside the vehicle."

After attempting to aid Mayol-Rivera for several

minutes, Cartagena-Vives received a call on her cell phone. She

recognized the voice of Luis Miguel Jiminez-Medina ("Luis

Miguel"), whom she also saw standing on a nearby hill, holding a

weapon. 1 Luis Miguel threatened her and warned her to get

Mayol-Rivera out of the area because she was a federal agent.

After Cartagena-Vives hung up, she saw him fire a single shot --

at what target is unclear -- before leaving the hill.

Not long after, a blue Dodge truck arrived outside of

Cartagena-Vives's home carrying three men: Luis Miguel, Tito

Bodon, and Rodríguez-Santos, the defendant. Bodon was driving,

Rodríguez-Santos was in the front passenger seat, and Luis Miguel

was seated in the back. Rodríguez-Santos ordered Luis Miguel to

It is unclear from the record how Cartagena-Vives recognized
1

Luis Miguel's voice and, in general, whether the witnesses at
Cartagena-Vives's house had any prior relationship with
Mayol-Rivera or her abductors.

- 3 -
"[g]et out and move" when they arrived. Luis Miguel and

Rodríguez-Santos then got out of the truck. Mayol-Rivera started

screaming that these were the men who had beaten her and threw a

bottle of liquor at their truck. Rodríguez-Santos approached

Mayol-Rivera, who was standing by her car, grabbed her, and dragged

her toward her car by her hair, pulling so hard that he "moved her

face back." He then hit her, slammed her face against her car

mirror, and ordered her to get in the car. She was screaming at

him to let go of her. He then gave her to Luis Miguel, urging him

to "move it" and get into the backseat with Mayol-Rivera. Luis

Miguel then also hit her, "grabbed hold of her[,] and put her

inside her car in the back." After getting Mayol-Rivera into the

back seat, Luis Miguel got into her car with a tank of gasoline.

Both vehicles then left the scene -- Rodríguez-Santos drove

Mayol-Rivera's car away, with Luis Miguel and Mayol-Rivera in the

back seat.

That evening, at approximately 10:00 PM, the Puerto Rico

Police Department received an anonymous call reporting a person

and a vehicle on fire in Rio Chiquito. A homicide investigator

went to the scene and discovered a burned Mitsubishi Lancer and,

across the road, a burned body. From the vehicle's license plate

number, the police were able to trace the car to Adriana

Pou-Porrata. Pou-Porrata explained that she had lent the car to

Mayol-Rivera, who had been staying at her house. A forensic dental

- 4 -
examination later confirmed that the body found on the side of the

road was Mayol-Rivera.

Investigators found gasoline on Mayol-Rivera's clothing,

five 9mm bullet casings under her body, and nine .40-caliber bullet

casings in an area nearby. The autopsy confirmed that

Mayol-Rivera died as the result of three gunshots to the head,

which occurred before her body was burned. She also appeared to

have sustained a gunshot to her left arm, and also exhibited first,

second, third, and fourth-degree burns covering her entire body.

The morning after Mayol-Rivera's murder,

Rodríguez-Santos dropped off his truck with a local mechanic,

Antonio Rosado-Colón. He asked Rosado-Colón to fix a hole in the

door of his truck and told him the hole had been caused by rebar,

a steel rod. Rodríguez-Santos returned that afternoon to pay for

the repairs and pick up the truck.

The police subsequently used security camera footage and

Google maps to trace the route of Mayol-Rivera's car, the

Mitsubishi Lancer, to the crime scene. They identified a blue

Dodge truck driving with the Lancer to the scene and traced the

truck to Rodríguez-Santos. Security footage also showed the blue

Dodge truck returning along the same road twenty minutes later,

without the Lancer. Investigators went to Rodríguez-Santos's

home, where he allowed them to take his truck for analysis. That

- 5 -
analysis revealed a perforation caused by a bullet in one of the

door panels.

A federal grand jury indicted Rodríguez-Santos on three

counts: aiding and abetting a carjacking resulting in death, 18

U.S.C. § 2119, aiding and abetting a kidnapping resulting in death,

18 U.S.C. § 1201(a)(1), and aiding and abetting the use of a

firearm during a crime of violence resulting in murder, 18 U.S.C.

§ 924(c)(1)(a), (j)(1).

At the five-day trial, Rodríguez-Santos testified that

he participated in the events leading to Mayol-Rivera's murder

only under duress. Specifically, he offered the following

account. On the evening of October 10th, he was getting into his

truck in the La Coqui ward after buying a drink when he was accosted

by Tito Bodon and a masked man (whom he later identified as Luis

Miguel). The men took control of Rodríguez-Santos's truck at

gunpoint. A third man, identified only as "Chewi," approached the

truck and entered on the passenger side. The three men then put

a bag over Rodríguez-Santos's head and drove away with his truck,

with him as a passenger.

When the truck eventually stopped, Luis Miguel got out,

grabbed Mayol-Rivera, and put her in a car (ostensibly her

Mitsubishi Lancer). Both vehicles then drove away but stopped

again when Chewi got out to retrieve a red gas tank from a different

vehicle before they continued on. Finally, the vehicles stopped

- 6 -
and Bodon ordered Rodríguez-Santos to get out and kneel on the

truck's running board. Rodríguez-Santos saw the men pour gasoline

over the white car and set it on fire. Bodon shot Mayol-Rivera,

and Chewi poured gasoline on her body. However, the men decided

not to kill Rodríguez-Santos. Instead, they drove him back to the

La Coqui ward in his truck. Before getting out of his truck, the

men told Rodríguez-Santos they would kill him if he ratted them

out and also threatened his mother. The next morning, Bodon and

Luis Miguel showed up outside Rodríguez-Santos's home and took him

to get the bullet hole in his truck repaired.

The jury did not credit Rodríguez-Santos's story, and he

was convicted on all counts. Defense counsel filed a Rule 29

motion, arguing that the evidence was insufficient on each count,

which the district court denied. The district court then

sentenced Rodríguez-Santos to concurrent terms of life

imprisonment for the aiding and abetting in carjacking and

kidnapping counts, and a life sentence for the firearm count, to

be served consecutively to the other terms.2 The district court

also applied a sentencing enhancement for obstruction of justice

because "Mr. Rodríguez deliberately gave false testimony during

trial." This appeal followed.

2 The other men involved with this crime are either dead or
imprisoned. Bodon died on September 18th, 2016, and Chewi has
been dead since December 21st, 2017. Luis Miguel has been in
custody since 2018.

- 7 -
 II.

A. Sufficiency of the Evidence

Rodríguez-Santos argues that the evidence presented at

trial was insufficient to warrant a conviction on any count.

Because his appeal follows a guilty verdict, we "assess preserved

sufficiency claims de novo . . . reviewing the evidence, and making

all inferences and credibility choices, in the government's favor

-- reversing only if the defendant shows that no rational

factfinder could have found him guilty." United States v.

Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019).

1. Carjacking

Count One charged Rodríguez-Santos with aiding and

abetting a carjacking resulting in death in violation of 18 U.S.C.

§ 2119. The elements of this offense are the "(1) taking or

attempted taking from the person or presence of another; (2) a

motor vehicle transported, shipped, or received in interstate or

foreign commerce; (3) through the use of force, violence, or by

intimidation; (4) with the intent to cause death or serious bodily

harm; (5) that results in death." United States v. Castro-Davis,

612 F.3d 53, 61 (1st Cir. 2010).

Rodríguez-Santos primarily focuses his argument on the

intent element, arguing that the record does not support a finding

that he had the intent to seriously injure or kill Mayol-Rivera

when aiding the carjacking. As Rodríguez-Santos was charged with

- 8 -
aiding and abetting the offense, we must determine whether the

evidence indicates he "possessed -- or knew that the principals

possessed -- at least conditional intent to inflict death or bodily

harm at the time he and [the principals] took the car." United

States v. Evans-García, 322 F.3d 110, 114 (1st Cir. 2003). The

Supreme Court has explained that conditional intent for purposes

of the federal carjacking statute exists when "at the moment the

defendant demanded or took control over the driver's automobile

the defendant possessed the intent to seriously harm or kill the

driver if necessary to steal the car." Holloway v. United States,

526 U.S. 1, 12 (1999). In other words, the government can prove

conditional intent by showing that a defendant was willing to cause

bodily harm or death to accomplish the carjacking, which can be

proven, for example, simply by showing that violence or

intimidation occurred during the commission of the carjacking.

See id. at 6-7, 9-10. This is so because such actions show that

the defendant possessed the intent to harm or kill at the precise

moment the crime was committed. Id. at 6-7. There is ample

evidence in the record to support such a finding.

First, according to Rodriguez-Figueroa, one of the

witnesses, Mayol-Rivera stated that she was scared because, before

arriving in front of Cartegena-Vives's house, she had been beaten

and threatened that she would be burned inside her car. Later,

when Rodríguez-Santos and Luis Miguel arrived on the scene,

- 9 -
Mayol-Rivera indicated that they were the men who had beaten her.

Second, witnesses described seeing Rodríguez-Santos hit

Mayol-Rivera, pull her by her hair toward her car, slam her face

into the car mirror, and hand her over to Luis Miguel, all while

she was screaming. Third, after Luis Miguel forced Mayol-Rivera

into the back of her car, a witness described seeing him get into

the car carrying a tank of gasoline before Rodríguez-Santos drove

them away. Fourth, later that evening, Mayol-Rivera was found

dead, having been shot several times before her body was burned.

We have found the requisite intent to inflict serious

bodily harm or death in circumstances much less violent than these.

For example, in United States v. Díaz-Rosado, 857 F.3d 116, 121-

22 (1st Cir. 2017), we concluded that evidence demonstrating that

the appellant struggled with the victim, "'push[ed] and shov[ed]'

her," "thr[e]w [her] onto the cement sidewalk," and then began

driving away with her car while the victim was attempting to get

her grandchild out of a car seat, was sufficient to indicate that

the appellant was willing to cause serious bodily harm in order to

complete the carjacking. We have also held that, while death

alone is not enough to satisfy the intent requirement, "[c]ommon

sense . . . dictates that the final act, at the very least,

evidences the intent." Castro-Davis, 612 F.3d at 63 n.13.

To state the obvious, the evidence here permitted "a

rational jury to conclude beyond a reasonable doubt that

- 10 -
[Rodríguez-Santos and the other men were] willing to cause serious

bodily harm in order to abscond with [Mayol-Rivera]'s car." Díaz-

Rosado, 857 F.3d at 122. As we have described, several witnesses

identified Rodríguez-Santos as a key participant in the violent

scene that ended with Mayol-Rivera's car being driven away. These

witnesses also identified Rodríguez-Santos as the driver.

Moreover, the witness accounts of Mayol-Rivera's statements and

behavior during the incident suggest that Rodríguez-Santos had

participated in the violent beating she received before her arrival

at Cartagena-Vives's home. Taken together, these facts are

sufficient to permit the reasonable inference that

Rodríguez-Santos possessed, or at the very least knew that the

other men possessed, the intent to seriously injure or kill

Mayol-Rivera during the commission of the carjacking.

Finally, although it is unclear from the briefing if

Rodríguez-Santos challenges other elements of this count -- he

broadly states that there is no evidence of "actus reus"3 on any

count -- we briefly note that the evidence also supports the

remaining elements of the aiding and abetting in a carjacking

offense. Given the witness descriptions of the initial encounter

and the ultimate discovery of the burned car, it is evident that

3Actus reus is defined as the action or conduct which is a
constituent element of a crime, as opposed to the mental state of
the accused. See ACTUS REUS, Black's Law Dictionary (11th ed.
2019).

- 11 -
Rodríguez-Santos, Luis Miguel, and Bodon were successful in

obtaining control of Mayol-Rivera's vehicle, satisfying the first

prong. As to the second prong, the parties stipulated to the fact

that the vehicle in question was shipped in interstate commerce.

Regarding the third prong, the above facts demonstrate that

Rodríguez-Santos used violent force in obtaining control of the

vehicle. And the final prong is satisfied by Mayol-Rivera's

murder immediately following the events described above. Viewing

the record in the light most favorable to the verdict, we conclude

that the evidence supports the conviction on Count One.

2. Kidnapping

Count Two charged Rodríguez-Santos with aiding and

abetting a kidnapping resulting in death. The federal kidnapping

statute, 18 U.S.C. § 1201, proscribes the actions of "any person

who: 'unlawfully seizes, confines, inveigles, decoys, kidnaps,

abducts, or carries away and holds for ransom or reward or

otherwise any person.'" United States v. Brown, 295 F.3d 152,

154-55 (1st Cir. 2002) (quoting 18 U.S.C. § 1201(a)). The statute

also provides that "if the death of any person results, [the

offender] shall be punished by death or life imprisonment." 18

U.S.C. § 1201(a). To prove this count, the government needed to

show that the defendant willfully aided and abetted the kidnapping.

See United States v. Simpson, 44 F.4th 1093, 1099 (8th Cir. 2022);

United States v. Urciuoli, 513 F.3d 290, 299 (1st Cir. 2008)

- 12 -
(quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938))

(explaining than an aider and abettor is one who "associate[s]

himself with the venture[] [and] participate[s] in it" and who

"seek[s] by his action to make it succeed."). However, the

government did not need to prove that Rodríguez-Santos knew in

advance that death would result from the kidnapping. See Simpson,

44 F.4th at 1099. Instead, the "death resulted" element only

required the government to prove that the kidnapping caused the

victim's death, but not that the individuals involved intended or

knew that death would result. See id. (citing United States v.

Barraza, 576 F.3d 798, 807 (8th Cir. 2009)). And "results," as

used in this context, "means that the kidnapping is a but-for cause

of the death." United States v. Ross, 969 F.3d 829, 838 (8th Cir.

2020), vacated in part, No. 18-2800, No. 18-2877, 2022 WL 4103064

(8th Cir. Sept. 7, 2022) (citing Burrage v. United States, 571

U.S. 204, 210-11 (2014)). In short, the government only needed

to show that the defendant by his actions aided in the kidnapping

that resulted in death. See Simpson, 44 F.4th at 1099.

Rodríguez-Santos argues that there is no evidence that

he aided and abetted a kidnapping because the government failed to

show that he intended to commit the kidnapping, that he had advance

knowledge of it, or that he facilitated the commission of the

offense. However, as we have noted, the record contains witness

testimony describing Rodríguez-Santos's active participation in

- 13 -
Mayol-Rivera's kidnapping. See United States v. Campa, 679 F.2d

1006, 1010 (1st Cir. 1982) ("The government must prove some

affirmative participation by the aider and abettor."). The jury

heard testimony from witnesses who saw Rodríguez-Santos grab

Mayol-Rivera and hit her before getting into her car and driving

away, with her in the backseat. One witness described hearing

Rodríguez-Santos urging Luis Miguel to "move it" and get into the

backseat with a resisting Mayol-Rivera. The jury also heard that

investigators were able to trace the path of Mayol-Rivera's and

Rodríguez-Santos's vehicles to the crime scene where her body was

found.

Such evidence permits a reasonable inference that

Rodríguez-Santos was aware of the intended offense (the kidnapping

of Mayol-Rivera) and intended to assist Luis Miguel and Bodon in

carrying it out. See Rosemond v. United States, 572 U.S. 65, 78

n.9 (2014) ("In any criminal case, . . . the factfinder can draw

inferences about a defendant's intent based on all the facts and

circumstances of a crime's commission."). Simply put, viewing the

record in the light most favorable to the verdict, the evidence

indicates that Rodríguez-Santos, Luis Miguel, and Bodon threatened

and beat Mayol-Rivera, followed her car to Cartagena-Vives's home

in Rodríguez-Santos's truck, and then abducted her. Hence, we

readily affirm Rodríguez-Santos's conviction on the kidnapping

count.

- 14 -
 3. Use of a Firearm in Relation to a Crime of Violence

Count Three charged Rodríguez-Santos with aiding and

abetting the use of a firearm in relation to a crime of violence,

18 U.S.C. § 924(c)(1)(A), here Mayol-Rivera's murder, id.

§ 924(j)(1). Section 924(j)(1) incorporates 18 U.S.C. § 1111,

which states that a murder "is the unlawful killing of a human

being with malice aforethought" and that a murder committed in the

course of a kidnapping or robbery is murder in the first degree.

The indictment listed both the carjacking and the kidnapping counts

as underlying crimes of violence to support Count Three.4 The

government's decision to list both counts as potential underlying

crimes of violence meant that evidence presented to prove the use

of a firearm was interwoven with the proof on the two prior counts.

On this final count, Rodríguez-Santos raises only one

sufficiency challenge. He argues that, as the indictment did not

charge him with premeditation as to Counts One or Two, Count Three

necessarily fails. He appears to draw this argument from United

States v. Catalán-Román, in which we described an indictment that

charged defendants with aiding and abetting the use of a firearm

in connection with a crime of violence "with premeditation." 585

F.3d 453, 474 (1st Cir. 2009). But Catalán-Román does not hold

4 Rodríguez-Santos raises a challenge to the "crime of
violence" prong of this count in a later portion of his briefing.
We follow suit and address only his sufficiency of the evidence
arguments here.

- 15 -
that premeditation is an essential element of a charge under 18

U.S.C. §§ 924(c)(1)(A) and (j)(1). Rather, we explained that "18

U.S.C. § 1111 'was intended to adopt the felony murder rule, and

for a stated felony the "malice" element is satisfied by the intent

to commit the unlawful felony.'" Id. (quoting United States v.

Morales-Machuca, 546 F.3d 13, 22 (1st Cir. 2008)). Thus, if there

was sufficient evidence that Rodríguez-Santos intended to aid in

the carjacking or the kidnapping, the "malice" element of Count

Three is satisfied. As we explained above, there is ample evidence

that he intended to aid in both the kidnapping and the carjacking,

so his sufficiency challenge to Count Three also fails.

B. Jury Instructions

Rodríguez-Santos argues that the district court erred

when it did not provide a jury instruction on duress. He admits

in his brief that he "did not disclose that he was going to employ

the duress defense during trial or move the district court for a

ruling on this subject prior to trial." On appeal, he has also

failed to identify any instance in the record where he requested

an instruction on the affirmative defense. His failure to seek a

duress instruction or to object to the given instructions renders

this argument unpreserved and thus subject to the rigorous plain

- 16 -
error standard, which he cannot meet. 5 Teixeira v. Town of

Coventry, 882 F.3d 13, 16 (1st Cir. 2018).

To show plain error, Rodríguez-Santos must demonstrate

that the omission of a duress instruction was (1) "an error . . .

(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. Pennue, 770 F.3d 985, 989 (1st

Cir. 2014) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st

Cir. 2001)). There was no clear or obvious error in omitting the

duress jury instructions because there was no error at all in the

absence of a duress instruction.

To establish a duress defense, a defendant must

demonstrate that he "committed a crime as a result of: '(1) an

immediate threat of serious bodily injury or death, (2) a well-

grounded belief that the threat will be carried out, and (3) no

5 Rodríguez-Santos points to three Fifth Circuit decisions
that he contends show that the trial court was obligated to sua
sponte give a duress instruction to the jury. See Appellant's Br.
at 63 (citing United States v. Posado-Rios, 158 F.3d 832 (5th Cir.
1998); United States v. Dixon, 413 F.3d 520 (5th Cir. 2005); United
States v. Willis, 38 F.3d 170 (5th Cir. 1994)). While all of
these cases relate to duress jury instructions, none of them
support his entitlement to a duress instruction because, in all
three cases, the defendant either requested a duress instruction
before the district court or challenged the district court's
proposed instructions. See Posado-Rios, 158 F.3d at 873-75;
Dixon, 413 F.3d at 525; Willis, 38 F.3d at 174-176.

- 17 -
reasonable opportunity to escape or otherwise to frustrate the

threat.'" United States v. González-Pérez, 778 F.3d 3, 13 (1st

Cir. 2015) (quoting United States v. Arthurs, 73 F.3d 444, 448

(1st Cir. 1996)). Rodríguez-Santos testified that he was forced

at gun point to allow Bodon, Luis Miguel and Chewi to take his

truck. The three men put a bag over his head and drove to

Cartagena-Vives's home, where he was ordered out of the truck so

the other men could get out, and then ordered back in. From the

truck, he watched Luis Miguel grab Mayol-Rivera and force her into

a car. Eventually both the truck (carrying Rodríguez-Santos) and

a car (carrying Mayol-Rivera) left and drove to the murder scene.

There, Rodríguez-Santos was ordered out of the truck and told to

kneel on the running board. He saw the men kill Mayol-Rivera and

set fire to her vehicle.

Such testimony fails to establish the elements of a

duress defense because, rather than explaining that he

participated in the charged crimes under threat, Rodríguez-Santos

denies that he participated at all. By his account, he was the

victim of a carjacking (of his own truck) and then was a mere

bystander to the carjacking of Mayol-Rivera's vehicle, the

kidnapping, and the use of a firearm to commit the murder. In his

briefing, Rodríguez-Santos argues he was "forcefully pressure[d]

to go along with the taking of the vehicle and the kidna[p]ping,"

- 18 -
but he describes no conduct that he was forced to engage in beyond

simply being present at various crime scenes.

Because he failed to put forward any facts that could

satisfy the elements of a duress defense, the district court could

not have committed error in not giving the instruction even if it

had been requested. In sum, Rodríguez-Santos's argument that the

jury should have been instructed on the affirmative defense of

duress clearly fails the plain error standard because there was no

error at all.

C. Crime of Violence

Rodríguez-Santos argues that his conviction for aiding

and abetting the use of a firearm in connection with a crime of

violence under 18 U.S.C. § 924(c) is invalid in light of United

States v. Davis, 139 S. Ct. 2319 (2019). The term "crime of

violence" as relevant to convictions under § 924(c) is defined 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" (referred to as "the force clause") or 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" (referred to as "the residual clause").

18 U.S.C. § 924(c)(3)(A)-(B). In Davis, the Court held that this

second definition, the residual clause, was unconstitutionally

vague. Davis, 139 S. Ct. at 2336.

- 19 -
 In his briefing, Rodríguez-Santos states that his

conviction under § 924(c) rests on the residual clause definition

of "crime of violence" and thus must be overturned. However, he

does not explain why he believes only the residual clause

definition applies to Counts One and Two and does not differentiate

between the two possible predicate offenses described to the jury:

carjacking and kidnapping. If the force clause applies to the

predicate offenses, the unconstitutionality of the residual clause

definition is irrelevant. See United States v. Hernández-Román,

981 F.3d 138, 146 (1st Cir. 2020) (noting that "any conceivable

infirmity in the residual clause of [§ 924(c)] offered the

defendant no avenue for relief when the predicate offense qualified

as a crime of violence under one of the other clauses"). The

question, then, is whether carjacking or kidnapping is a crime of

violence within the meaning of the force clause.

We have previously held that the force clause

encompasses federal carjacking. United States v. Cruz-Rivera, 904

F.3d 63, 66 (1st Cir. 2018). We have not considered whether the

force clause applies to federal kidnapping under 18

U.S.C. § 1201(a). Other circuit courts have considered this

question but have reached conflicting conclusions.6 We need not

The Fifth Circuit distinguishes between the crime of
6

kidnapping and kidnapping resulting in death, holding that both
are crimes of violence under the force clause. See In re Hall,
979 F.3d 339, 344 (5th Cir. 2020). Similarly, the Eighth Circuit

- 20 -
wade into this debate to resolve this case because, as we explain,

Rodríguez-Santos's argument fails to meet two prongs of the

rigorous plain error standard.

A situation where one predicate charge is a valid basis

for a conviction and the other is not may give rise to a Yates

error, which occurs where a jury is "instructed on alternative

theories of guilt and may have relied on an invalid one." Hedgpeth

v. Pulido, 555 U.S. 57, 58 (2008) (per curiam); see Yates v. United

States, 354 U.S. 298, 311-12 (1957), overruled on other grounds

by Burks v. United States, 437 U.S. 1 (1978); see also United

States v. Laurent, 33 F.4th 63, 86 (2d Cir. 2022), cert. denied,

No. 22-5754, 2022 WL 16542116 (Oct. 31, 2022) (finding a Yates

error when the jury was improperly instructed to consider a

predicate offense that did not constitute a crime of violence under

treats kidnapping resulting in death as a crime of violence under
the force clause and implies that kidnapping should be as well
because "kidnapping necessarily involves 'a deliberate decision to
endanger another' that amounts to recklessness." Ross, 969 F.3d
at 839. In contrast, the Seventh Circuit has held that "kidnapping
is not a crime of violence under the Force Clause" because no
element of the crime of kidnapping requires the use of physical
force. United States v. Jenkins, 849 F.3d 390, 393-94 (7th Cir.
2017), cert. granted, judgment vacated, 138 S. Ct. 1980 (2018).
Applying that same logic, the Eleventh Circuit has reasoned that
"federal kidnapping . . . can be committed by mere inveiglement
and holding the victim by either physical or psychological force."
United States v. Gillis, 938 F.3d 1181, 1210 (11th Cir. 2019)
(emphasis in original). Because physical force is not required
to commit kidnapping, that court held that kidnapping is not a
categorial crime of violence under the force clause. Id.

- 21 -
§ 924(c)). Such errors are typically subject to harmless error

review. Skilling v. United States, 561 U.S. 358, 414 (2010).

However, unpreserved claims are subject to the "more

exacting plain error standard." Greer v. United States, 141 S.

Ct. 2090, 2099-100 (2021) (clarifying that plain error applies to

unpreserved, non-structural constitutional errors);

Hernández-Román, 981 F.3d at 145-46 (applying plain error to

appellant's unpreserved claim that § 924(c)'s residual clause was

unconstitutionally vague); Laurent, 33 F.4th at 86 (reasoning in

a post-Davis decision that plain error review applied to

appellant's unpreserved claim that the jury was improperly

instructed to consider a predicate offense that did not constitute

a crime of violence under § 924(c)). Because Rodríguez-Santos did

not raise an objection to the inclusion of both Counts One and Two

as possible predicates in the jury instructions and on the verdict

form, we review his claim for plain error.

The jury instructions in this case stated that a § 924(c)

conviction could rest on either the carjacking count or the

kidnapping count. Similarly, the indictment states that the

predicate crime of violence underlying Count Three may be either

Count One, carjacking resulting in death, or Count Two, kidnapping

resulting in death. The verdict also did not specify which

predicate offense the jury ultimately relied upon in finding

Rodríguez-Santos guilty on Count Three. In other words, there is

- 22 -
a potential Yates error because it is impossible to know for

certain whether the jury considered kidnapping or carjacking the

predicate crime of violence required for a conviction on Count

Three when only carjacking is an established crime of violence in

this circuit. In theory, the jury could have concluded that

Rodríguez-Santos only aided and abetted the use of a firearm in

connection with kidnapping and not the carjacking.

This Yates error argument fails on the second prong of

plain error review because the instructional error was not "clear

or obvious." Hernández-Román, 981 F.3d at 146 (quoting Duarte,

246 F.3d at 60) (reciting the plain error standard). We have not

determined whether kidnapping is a crime of violence; therefore,

the district court did not commit a clear or obvious error in

treating it as such, especially where, as here, other circuit

courts have treated kidnapping as a crime of violence. In short,

the district court's instruction reflected decisions of some of

our sister circuits without conflicting with any of our own

precedents and thus was not a clear or obvious error.

However, even if we assumed, solely for purposes of this

decision, that the kidnapping charge was clearly an inappropriate

predicate offense, the outcome would be no different because

Rodríguez-Santos cannot establish that such an error "affected

[his] substantial rights," the third prong of the plain error

standard. Id.

- 23 -
 "An error affects substantial rights if it was

'prejudicial,' meaning that the error 'must have affected the

outcome of the district court proceedings.'" Ramirez-Burgos v.

United States, 313 F.3d 23, 29 (1st Cir. 2002) (quoting United

States v. Olano, 507 U.S. 725, 734 (1993)). This requirement

"generally means that there must be a 'reasonable probability that,

but for the error, the outcome of the proceeding would have been

different.'" Greer, 141 S. Ct. at 2096 (quoting Rosales-Mireles

v. United States, 138 S. Ct. 1897, 1904-05 (2018)). Here, we

conclude that the result would not have been different if the

kidnapping charge had been omitted from Count Three because the

kidnapping count and the carjacking count are "inextricably

intertwined," Parker v. United States, 993 F.3d 1257, 1263 (11th

Cir. 2021), and it is therefore improbable that the jury would

have acquitted on Count Three in the absence of the kidnapping

predicate.

The evidence used to prove both predicates was almost

identical: essentially, Rodríguez-Santos and the other men

simultaneously abducted Mayol-Rivera and took control of her

vehicle before she was murdered. Further, all of the evidence

regarding the use of a firearm was equally relevant to the "death

resulting" element of the carjacking and the kidnapping.

Therefore, it is highly unlikely that the jury would have reached

- 24 -
a different result on Count Three in the absence of the kidnapping

predicate.

Moreover, of the two predicates, only the carjacking

offense has an element requiring that a defendant commit the

offense "through the use of force, violence, or by intimidation

. . . with the intent to cause death or serious bodily harm."

Castro-Davis, 612 F.3d at 61. Thus, if the jury were to consider

the use of a gun in the context of only one predicate offense, it

is likely that it would factor much more heavily into their

decision on the carjacking.7

Accordingly, it would defy common sense to conclude that

the jury could have found Rodríguez-Santos guilty of aiding and

abetting the use of a firearm only with respect to the kidnapping

and not the carjacking. See Foster v. United States, 996 F.3d

1100, 1107 (11th Cir. 2021), cert. denied, 142 S. Ct. 500 (2021)

(concluding that the valid predicate offenses were "inextricably

intertwined" with invalid predicates and that there was no

possibility that the conviction rested only on invalid

predicates); Stone v. United States, 37 F.4th 825, 832 (2d Cir.

7 In closing argument, the government did not initially allude
to the use of a firearm (or Mayol-Rivera's murder) in describing
Rodríguez-Santos's intent to cause serious bodily harm to
Mayol-Rivera during the carjacking. But, at a later point in its
closing, the government stated, "[t]here is another kind of
inference that you can make . . . which is, based on how the
carjacking happened, it could be inferred that they were going to
murder [Mayol-Rivera]."

- 25 -
2022), cert. denied, No. 22-5637, 2022 WL 16542129 (Oct. 31, 2022)

(concluding that defendant was not prejudiced by a jury instruction

including an invalid predicate offense because "the jury found

facts 'satisfying the essential elements of guilt' on the valid

predicate" (quoting Laurent, 33 F.4th at 86)); United States v.

Angiulo, 897 F.2d 1169, 1200 (1st Cir. 1990) (concluding that "even

though we have found that the accessory charge . . . [is] invalid

as a predicate act, the nature of the charges and the evidence

underlying those charges establishes that the jury necessarily

must have found . . . two valid predicate RICO acts"); Durfee v.

United States, No. 16-cv-280, 2020 WL 1942324, at *4 (D.N.H. Apr.

20, 2020) ("[W]hen the valid and invalid predicate offenses are

coextensive, a reasonable probability does not exist that the jury

convicted based only on the invalid offense."). There are simply

no reasonable grounds for concluding that the jury could have

convicted solely on the basis of a connection between the use of

a firearm and the kidnapping predicate.

Therefore, we conclude that the inclusion of the

potentially invalid predicate offense was not a plain or obvious

error and that, even if it was error, it would be harmless without

any effect on Rodríguez-Santos's substantial rights. Hence,

Rodríguez-Santos has failed to satisfy the second and third prongs

of the plain error standard.

- 26 -
D. Sentencing

Rodríguez-Santos challenges two aspects of his sentence.

He argues that the district court erred when it failed to impose

a downward departure based on duress and that the application of

the obstruction of justice enhancement was unwarranted.

1. Duress Departure

Rodríguez-Santos contends that the district court should

have granted him a downward departure per § 5K2.12 of the U.S.

Sentencing Guidelines Manual ("Sentencing Guidelines"). That

Sentencing Guidelines section contemplates a downward departure

"[i]f the defendant committed the offense because of . . . duress,

under circumstances not amounting to a complete defense."

U.S.S.G. § 5K2.12 (U.S. Sent'g Comm'n 2004).

We review a district court's discretionary refusal to

depart from the guideline range for reasonableness. See United

States v. Herman, 848 F.3d 55, 58 (1st Cir. 2017). This approach

accords with a deferential abuse of discretion standard and

recognizes the "substantial discretion vested in a sentencing

court." United States v. Flores-Machicote, 706 F 3.d 16, 20 (1st

Cir. 2013). Here, Rodríguez-Santos offers no substantive

challenges to the court's decision except to state that "there are

sufficient out of the ordinary circumstances to warrant a downward

departure." He does not, however, elaborate on these

circumstances, or otherwise indicate how the court's decision was

- 27 -
unreasonable. Therefore, we consider this argument waived. See

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

(explaining that "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").8

However, even if this argument was not waived, we would

affirm the district court's decision not to depart downward as

reasonable. As noted above, there are no facts in this record

that support a duress defense. See supra. Therefore, there is

no way the district court could have concluded that

Rodríguez-Santos mounted an almost complete duress defense as

required by the downward departure he now seeks. Hence, the

district court's decision not to depart downward from the guideline

range was reasonable. See Herman, 848 F.3d at 58.

2. Obstruction of Justice Enhancement

Rodríguez-Santos argues that the district court's

imposition of a two-point enhancement for obstruction of justice

under § 3C1.1 of the Sentencing Guidelines was erroneous. Because

Rodríguez-Santos objected to the obstruction of justice

8 Although the transcript of the sentencing hearing contains
no mention of a request for a downward departure, Rodríguez-Santos
states that he preserved this argument and cites to a transcript
from a status conference that occurred on March 8, 2019 (the
sentencing hearing did not occur until December 2019). But
whether this argument was preserved is irrelevant to our decision
since Rodríguez-Santos failed to explain how the district court's
decision not to depart was unreasonable.

- 28 -
enhancement below, we would ordinarily review the "sentencing

court's decision for an abuse of discretion." United States v.

Grullon, 996 F.3d 21, 34 (1st Cir. 2021).

However, we choose not to address the substance of

Rodríguez-Santos's arguments because even if the district court

abused its discretion -- and we are not suggesting that it did --

Rodríguez-Santos was not harmed by the application of the

enhancement, which did not alter his total offense level.

Rodríguez-Santos quotes the district court's language in his own

brief explaining that although the enhancement would increase his

total offense level from 43 to 45, "Chapter 5 Part A commentary,

Application Note 2 . . . establishes that in cases in which the

total offense level is more than 43, the total offense level will

be treated as an offense level of 43." Hence, there is no basis

for his claim that the obstruction enhancement affected his

substantial rights by resulting in a longer sentence.

Affirmed.

- 29 -