UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1555
UNITED STATES,
Appellee,
v.
HECTOR M. CARRILLO-FIGUEROA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge]
Before
Cyr and Stahl, Circuit Judges,
and Pieras,* Senior District Judge.
Gustavo Adolfo del Toro, by Appointment of the Court, for
appellant.
Jeanette Mercado R os, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jos A.
Quiles Espinosa, Senior Litigation Counsel, United States
Attorney's Office, were on brief for appellee.
September 14, 1994
* Of the District of Puerto Rico, sitting by designation.
PIERAS, Senior District Judge. Defendant-appellant,
H ctor M. Carrillo, appeals his conviction for robbing and
placing the life of a postal inspector in jeopardy by using a
dangerous weapon. Carrillo bases his appeal on two grounds. He
argues that his conviction violates the Double Jeopardy Clause of
the Fifth Amendment and that it resulted from the inappropriate
admission of prejudicial evidence by the trial court. Carrillo
also appeals the sentence imposed by the district court following
his conviction. Concluding that Carrillo's conviction does not
violate the Double Jeopardy Clause and that the district court
committed no error in admitting evidence during the trial or in
imposing the sentence, we affirm.
I.
Factual Background
We recount the evidence in the light most favorable to
the prosecution. United States v. Mena-Robles, 4 F.3d 1026, 1028
(1st Cir. 1993) (citing United States v. Alvarez, 987 F.2d 77, 79
(1st Cir. 1993), cert. denied, 114 S. Ct. 147 (1993)). The facts
are to the effect that on July 27, 1992, at approximately 8:30
p.m., Ivette O'Neill, a United States Postal Inspector, was
driving home from work in a government vehicle assigned to her.
Inspector O'Neill was on twenty-four hour call and carried a
government issued beeper, cellular phone, and car radio. While
stopped at an intersection, a man approached Inspector O'Neill,
put a revolver to the left side of her head, told her that he was
holding her up, and ordered her to exit the vehicle. The man
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then drove off with the car. As soon as he drove off, Inspector
O'Neill telephoned the postal office to inform them of the
robbery. She also informed the robber, via the stolen car's
radio, that the vehicle he had taken was a vehicle belonging to
the United States and that his action constituted a federal
offense. The day after the robbery, the stolen vehicle was found
in a parking lot near appellant's residence and not far from the
intersection at which the robbery had taken place. The vehicle
was in a disheveled, dismantled state. A bulletproof vest, a
cellular telephone, a radio, a narcotics kit, and the vehicle's
blue emergency revolving lights were missing from the car. The
postal inspector assigned to investigate the case received
information that shortly after the incident, the appellant, also
known as "El Roquero," had attempted to sell a blue bulletproof
vest in the neighborhood where Inspector O'Neill was robbed. It
was also discovered that appellant had previously been arrested
by Puerto Rico police and charged with the theft of a motor
vehicle. The postal inspector obtained appellant's photograph
from the Puerto Rico police department and prepared a photospread
with the purpose of showing it to Inspector O'Neill. The postal
inspector showed Inspector O'Neill the photospread on November
12, 1992, and she identified appellant as her assailant by
picking out his photograph from among the others in the
photospread.
On November 25, 1992, a Federal Grand Jury returned a
true bill against the appellant. He was arraigned on December 2,
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1992, and entered a plea of not guilty as to all three counts in
the indictment. The three-count indictment charged appellant
with unlawfully assaulting, resisting, opposing, impeding,
intimidating or interfering with Postal Inspector Ivette O'Neill
while she was engaged in her official duties and with the use of
a revolver. The indictment further charged the appellant with
the theft of the United States Postal vehicle which was within
the lawful charge, custody and control of Inspector O'Neill.
A jury trial commenced on January 8, 1993. The case
was submitted to the jury at around noon on January 12, 1994;
however, about five hours later the jury sent a note to the judge
informing him that they were unable to reach a verdict. Upon
receipt of the jury's note, the judge called the jury and the
parties into the courtroom. The judge then instructed the jury
that they need not agree on all counts charged in the indictment
and that they might wish to consider whether they agreed on one
or more counts. The judge instructed the jury to go back to the
jury room for further deliberation. At approximately 6:15 p.m.,
however, the jury sent the judge a second note informing him that
they were unable to reach a verdict.1 Before calling the jury
back into the courtroom, the judge summoned counsel for the
parties to ask for their suggestions on the matter. Appellant's
counsel asked the court to declare a mistrial. The government
opposed the request for a mistrial, and suggested instead that
1 The note read: "Your honor, honestly it is impossible to
reach a verdict."
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the jury be allowed to go home and return in the morning for
further deliberations. Counsel for the government also suggested
that the jury be given an "Allen" charge. The judge agreed that
an "Allen" charge could prove helpful. However, when the judge
called the jury and asked them whether they thought they could
reach a verdict if allowed to go home and return the following
morning, the foreperson responded in the negative. The rest of
the jurors agreed with him by raising their hand. The judge then
granted the mistrial requested by the appellant and dismissed the
jury. Immediately thereafter, and before discharging counsel for
the parties, the judge set a new trial for thirteen days later.
On January 20, 1993, five days before the new trial was
scheduled to begin, appellant filed a motion of acquittal
pursuant to Rule 29(c) of the Federal Rules of Criminal
Procedure.2 In his motion, appellant argued that the evidence
2 Rule 29(c) of the Federal Rules of Criminal Procedure provides
as follows:
If the jury returns a verdict of guilty
or is discharged without having returned
a verdict, a motion for judgment of
acquittal may be made or renewed within 7
days after the jury is discharged or
within such further time as the court may
fix during the 7-day period. If a
verdict of guilty is returned the court
may on such motion set aside the verdict
and enter judgment of acquittal. If no
verdict is returned the court may enter
judgment of acquittal. It shall not be
necessary to the making of such a motion
that a similar motion has been made prior
to the submission of the case to the
jury.
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presented at trial was insufficient for a conviction and argued
that a retrial was proscribed by the Fifth Amendment's Double
Jeopardy Clause. In the event that the trial court decided to
deny his motion, the appellant asked the court to postpone the
jury trial so that he could have an opportunity to appeal the
denial of his motion. The trial court did not rule on
appellant's motion until the day of the commencement of the
second trial. After entertaining counsel's argument on the
subject out of the presence of the jury, the court made a ruling
from the bench denying appellant's motion for acquittal and
finding that the government had presented sufficient evidence for
a conviction. The court also denied appellant's request for a
continuance of the trial. The trial commenced as scheduled on
January 25, 1993, and lasted three days. On the second day of
trial, at the conclusion of the government's case, the appellant
made a new motion for judgment of acquittal which the court
denied. The case was submitted to the jury on the third day of
trial. The jury delivered its verdict on the same day finding
the appellant not guilty on counts one and two of the indictment,
but guilty on count three. After asking for an extension, which
the court granted, the appellant filed a final motion for
Appellant filed his motion eight days after the jury was
discharged; however, his motion was timely as the 7-day period
began to run on January 13 and intermediate weekends are excluded
from the computation of a seven-day period. See United States v.
Castro-Lara, 970 F.2d 976 (1st Cir. 1992), cert. denied, Sarraff
v. United States, 113 S. Ct. 2935 (1993).
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judgment of acquittal on February 22, 1993. The court denied
appellant's motion on April 16, 1993.
On May 14, 1993, the court sentenced the appellant to a
term of imprisonment of 121 months and a term of supervised
release of fiveyears. This appealwas timely filedon May 20,1993.
II.
Discussion
A. The Double Jeopardy Claim
Appellant assigns error to the trial court's denial of
his motion for judgment of acquittal filed after the first jury
had been discharged, but before the commencement of the second
trial.3 Appellant does not ask us to review the correctness of
the trial court's decision to deny his motion of acquittal, but
instead asks us to vacate his conviction as he alleges that his
second trial violated the Double Jeopardy Clause of the Fifth
Amendment. Appellant argues that the second trial put him in
double jeopardy because he was entitled to a judgment of
acquittal at the end of the first trial. Pitching his argument
on Burks v. United States, 437 U.S. 1 (1978), he argues that the
trial court's failure to recognize the insufficiency of the
3 Appellant made six motions for judgment of acquittal. He made
his first one on January 11, 1993, at the conclusion of the
government's case in the first trial; his second one on January
12, 1993, at the conclusion of the defense's case in the first
trial; his third one on January 29, 1993, after the discharge of
the jury in the first trial; his fourth one on January 26, 1993,
at the conclusion of the government's case in the second trial;
his fifth one on January 27, 1993, at the conclusion of the
defense's case; and, his sixth one on February 22, 1993, after
the discharge of the jury in the second trial.
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evidence presented against him in the first trial and to provide
him with an opportunity to appeal the court's denial allowed the
government to "take two bites out of the apple" and obtain a
conviction against him which it could not have obtained at the
first trial.
In essence, appellant argues that the Double Jeopardy
Clause precluded his second trial due to the fact that the
government failed to present enough evidence to convict during
the first trial. Specifically, appellant asserts that under
Burks he was entitled to have a reviewing court examine the trial
court's denial of his motion of acquittal for insufficiency of
the evidence. The petitioner in Burks had claimed insanity as a
defense to a bank robbery count at trial, but was nevertheless
convicted by the jury after the trial court denied his motion for
a judgment of acquittal. Burks appealed his conviction arguing
that the trial court had erred in denying his motion for judgment
of acquittal. The Court of Appeals for the Sixth Circuit,
holding that the prosecution had failed to present sufficient
evidence to rebut petitioner's proof as to insanity, reversed and
remanded the case to the trial court with directions to determine
whether judgment of acquittal should be entered or a new trial
ordered. The Supreme Court granted certiorari and held that
double jeopardy had attached at the moment that the court of
appeals determined that the prosecution had not presented
sufficient evidence to convict at the first trial and that,
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therefore, the court of appeals should have entered or ordered a
judgment of acquittal.
A defendant in a criminal proceeding is protected by
the Double Jeopardy Clause against multiple punishments and
repeated prosecutions for the same offense. United States v.
Dinitz, 424 U.S. 600 (1976) (citing United States v. Wilson, 420
U.S. 332 (1975)); North Carolina v. Pearce, 395 U.S. 711, 717
(1969). However, the Double Jeopardy Clause is not an absolute
bar to successive trials. Justices of Boston Municipal Court v.
Lydon, 466 U.S. 294 (1984). "The protection embodied in the
Double Jeopardy Clause is a personal defense that may be waived
or foreclosed by a defendant's voluntary actions or choices,
including a request for or effectual consent to a mistrial."
United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir.),
cert. denied, Aguilar-Aranceta v. United States, 113 S. Ct. 105
(1992) (citing United States v. Dipietro, 936 F.2d 6, 9 (1st Cir.
1991)). If a mistrial is declared at the request of the
defendant, the defendant is deemed to have waived any double
jeopardy claim he might otherwise have. Id.
The appellant moved for a mistrial after the jurors
informed the trial court for the second time that they were
unable to reach a verdict. During oral argument before us, the
appellant argued that he had no choice but to consent to the
declaration of a mistrial. The record, however, does not reveal
a grudging consent by the appellant. On the contrary, the record
shows that the appellant asked for a mistrial almost immediately
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after the court elicited suggestions from counsel on how to
respond to the jury's second note informing the court of their
inability to reach a verdict.4 Before granting appellant's
4 The exchange between the court and the parties was, in
relevant part, as follows:
THE COURT: Okay. Good evening. It's
fifteen after six and I have a message
from the jury that it reads: "Your
Honor, honestly, it is impossible to
reach a verdict." Very well. Let's hear
suggestions from counsel.
[PROSECUTOR]: Your Honor, they may just
be very exhausted, and I would suggest to
the Court to just let them rest this
evening and have them return tomorrow
morning to continue deliberation. They
have not been deliberating that long
considering that the trial did begin on
Friday.
THE COURT: Well, the case was submitted
about twelve noon.
[PROSECUTOR]: That is correct, your
Honor.
[DEFENSE COUNSEL]: Your honor, this is a
very short case. They have been
deliberating more and they have taken
longer than has taken the testimony of
the witnesses. More than six hours they
have been deliberating. I believe it is
impossible to reach an agreement. I
believe the jury should be excused and a
hung jury -- no verdict be entered, your
Honor, because honestly this case started
at noon during the afternoon on Friday
with only one testimony, after 2:00
o'clock because you were attending a TRO
in another case. For less than two hours
the witness where testifying. All in all
he -- in the whole case it hasn't taken
six hours complete of testimony for the
jury. They -- said it is impossible to
reach an agreement. No, the case is very
short. I think that the jury should be
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motion for a mistrial, the court advised the appellant that the
case would have to be retried. Appellant's counsel confirmed his
understanding of this fact by stating: "I know that, your Honor.
I know that we have to start again, yes, your Honor". Thus, the
record reflects not only that the appellant requested the
mistrial but that he expressly consented to a new trial. The
double jeopardy claim was waived.
Even if the double jeopardy claim had been preserved,
it could not have succeeded. A retrial following a "hung jury"
does not violate the Double Jeopardy Clause. Richardson v.
United States, 468 U.S. 317, 324 (1984) (citing to Logan v.
United States, 144 U.S. 263, 297-98 (1892)).
B. Jury Access to the Photospread
Appellant argues that the trial court improperly
permitted jury access, during deliberations, to a photospread
which included a "mugshot" taken of appellant in connection with
a previous arrest. The photospread had been admitted into
evidence over appellant's objection. The photospread consisted
of black and white photographs of six males including the
appellant. The photographs had been sandwiched between cardboard
paper so that only the faces were visible. The photographs were
stapled together so that the six faces were arranged in a circle.
It was the same photospread shown to Inspector O'Neill on
November 12, 1992, when she first identified the appellant as her
assailant. The government offered it into evidence to buttress
dismissed, your Honor, very honestly.
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Inspector O'Neill's identification, which was heatedly contested
at both trials. Appellant claims that the trial court committed
reversible error by allowing the jurors to take the photospread
with them during their deliberations. Allowing the jurors to
take the photospread was tantamount, the appellant argues, to the
impermissible admission into evidence of "other acts" evidence
contrary to Rule 404(b) of the Federal Rules of Evidence. The
appellant essentially speculates that the jury could have gleaned
that his photograph was a "mugshot," from which it might have
inferred that he had a prior criminal record. Aside from its
speculative nature, appellant's contention is precluded by his
failure to see to it that the photospread was made part of the
appellate record. Effective appellate review is impossible
without it. Second, appellant failed to raise the present claim
in the district court. We will not consider arguments never
presented to the trial court. United States v. Lebon, 4 F.3d 1,
2 (1st Cir. 1993).5 Finally, during closing argument,
appellant's counsel invited the jury to view appellant's
photograph in the photospread and compare it to a written
statement made by Inspector O'Neill. In so doing, appellant
sought to emphasize the alleged discrepancies between Inspector
5 Although appellant objected to the admission of the
photospread into evidence, the court overruled the objection.
Jurors generally are entitled to examine exhibits properly
admitted into evidence. United States v. De Coito, 764 F.2d 690,
695 (9th Cir. 1985); see also United States v. Jackson, 477 F.2d
879, 880 (8th Cir. 1973); Dallago v. United States, 427 F.2d 546,
553 (D.C. Cir. 1969). Appellant did not object to the
photospread going to the jury room.
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O'Neill's written description of her assailant and appellant's
photograph in the photospread. Thus, in myriad ways, appellant
waived any claim that the jury was improperly allowed access to
the photospread during its deliberations.
We do not read appellant's claim as a challenge to the
admission of the photospread into evidence. However, even if it
were read to encompass such an indirect challenge, we would not
find reversible error. In objecting at trial, the appellant did
not rely on Rule 404(b). Indeed, he failed to state a basis for
the objection. Unless the basis for objection is apparent from
the context, the grounds for objection must be specific so that
the trial court may have an opportunity to address the claim
later sought to be presented on appeal. United States v.
Figueroa, 976 F.2d 1446, 1453 (1st Cir. 1992), cert. denied,
Figueroa v. United States, 113 S. Ct. 1346 (1993) (citing Fed. R.
Evid. 103(a)(1)).6 Before objecting to the admission of the
6 Rule 103 of the Federal Rules of Evidence provides,
(a) Effect of erroneous ruling.
Effect of erroneous ruling
Error may not predicated upon a ruling
which admits or excludes evidence unless
a substantial right of the party is
affected and,
(1) Objection
Objection
In case the ruling is one admitting
evidence, a timely objection or motion to
strike appears of record, stating t h e
specific ground or objection, if the
specific ground was not apparent from the
context; . . .
(emphasis added).
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photospread, the appellant conducted a voir dire examination of
Inspector O'Neill pertaining to the photospread. However,
nothing in appellant's line of questioning indicated a concern
that the admission of the photospread was equivalent to
introducing "prior bad acts" evidence. Rather, the voir dire
examination was aimed at establishing that Inspector O'Neill
could not have made an adequate identification of her assailant
in the first instance because the photographs were not in color
and the visible portions of the photographs were too small. The
voir dire examination established that Inspector O'Neill was not
able to ascertain her assailant's height, skin tone, eye color,
or hair color from the photographs included in the photospread.
At the conclusion of the voir dire examination, the court asked
appellant whether he objected. Appellant responded in the
affirmative without elaboration, and the court overruled the
objection.
Thus, since appellant failed to state a specific
objection based on Rule 404(b), and no such basis of objection
could be considered clear from the context, the trial court was
given no opportunity to address any concerns the appellant might
have had regarding unfair prejudice resulting from the admission
of the photospread into evidence. Consequently, even if
appellant's present claim were construed as an indirect attack on
the trial court's evidentiary ruling, we would review it only for
plain error. United States v. Castiello, 915 F.2d 1, 4 (1st Cir.
1990); see Fed. R. Evid. 103(d) ("Nothing in [Rule 103]
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precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the
Court").
We have explained in general terms that
The admissibility of "other acts"
evidence depends on a two-part analysis.
First, "other acts" evidence must be
excluded if it is relevant only because
it shows bad character (i.e. the proposed
logical inference includes character as a
necessary link.)" United States v.
Ferrer-Cruz, 899 F.2d 135, 137 (1st Cir.
1990) (emphasis in original). Second,
the district court must weigh the
probative value of the "other acts"
evidence against any unfair prejudice to
the defendant; and it is only when the
risk of unfair prejudice "substantially"
outweighs its probative value that the
evidence is to be excluded.
United States v. Figueroa, 976 F.2d at 1453 (quoting United
States v. Shenker, 933 F.2d 61, 63 (1st Cir. 1991)). However,
because there is grave risk of prejudice in the introduction of
photographs such as "mugshots", we have adopted a three factor
analysis specifically tailored to determining their
admissibility. See United States v. Cannon, 903 F.2d 849, 855
(1st Cir.), cert. denied, Cannon v. United States, 498 U.S. 1014
(1990). These factors, adopted by us in United States v. Fosher,
568 F.2d 207, 215 (1st Cir. 1978), are:
1. The government must have a
demonstrable need to introduce the
photograph;
2. The photographs themselves, if shown
to the jury, must not imply that the
defendant has a prior criminal record;
and
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3. The manner of introduction at trial
must be such that it does not draw
particular attention to the source or
implications of the photograph.
Id. Thus, in reviewing a trial court's admission of "mugshots",
we examine not only what was submitted, but why and how. Cannon,
903 F.2d at 855.
In Cannon, we applied the preceding analysis and upheld
the admission of a group of photographs which included a
"mugshot" of the defendant. The defendant had been convicted of
one count of armed bank robbery and appealed his conviction
claiming that the admission of the photographs was unduly
prejudicial and an abuse of discretion by the trial court. The
photo array in Cannon consisted of individual, front-view, head-
and-shoulder shots of six young, white men. Id. We found that
the admission of the group of photographs was not an abuse of
discretion.7
An application of the three factor Fosher test in this
case establishes that admission of the photospread into evidence
did not constitute plain error. The government's chief
identification witness at trial was Inspector O'Neill, whose
identification of appellant had been heatedly contested at the
first trial. Thus, the government introduced the photospread to
strengthen Inspector O'Neill's identification testimony. As
expected, the defense did indeed mount an effective attack
against Inspector O'Neill's identification testimony, which
7 We undertook "abuse of discretion" review in Cannon because
the defendant had interposed a specific Rule 404(b) objection.
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weakened a key link in the government's case.8 Thus, the
government had a demonstrable need for the challenged
photospread, as support for its critical identification evidence.
Second, the photospread did not imply that appellant
had a prior criminal record. Like the photographs introduced in
Cannon, the photospread contained front-view photographs only.
Moreover, only the face of each individual was visible, as
cardboard had been used to redact both sides of the photographs.
No photographic backdrops were visible. There were no profile
shots, no number markings, and no height bars. Like the
photographs in Cannon, the photographs included in the
photospread in this case possessed no characteristics identifying
them as police "mugshots."
Third, the manner in which the photospread was
introduced at trial drew no particular attention to the source or
8 The defense first attacked Inspector O'Neill's identification
during direct examination by conducting a voir dire examination,
aimed at establishing that O'Neill could not have made a reliable
identification of her assailant from the photospread. Later, the
defense attacked Inspector O'Neill's identification on cross-
examination and during its direct examination of Modesto Estrada,
a police officer who prepared a statement in response to the
complaint filed by Inspector O'Neill with the Puerto Rico Police
Department. The defense highlighted details of Inspector
O'Neill's identification testimony at the second trial which
differed from her testimony at the first trial and from
descriptions she had given previously to the postal inspector and
to Officer Estrada. The most significant differences related to
the color of the assailant's eyes and skin. Finally, the defense
obtained admissions from O'Neill that during the first trial she
had testified that the lights at the intersection where she had
been robbed were "not bright," whereas at the second trial she
stated that there were bright "anti-crime" lights at the
intersection.
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the implications of the photographs. Indeed, government counsel
and Inspector O'Neill said nothing about the source of the
photographs or their implications.
As the photospread was properly admitted in evidence,
the jury was entitled to examine and consider it. We find no
error, plain or otherwise.
C. The Sentencing Enhancements
At sentencing, the district court increased appellant's
base offense level ("BOL") of 20 by six levels for the use of a
firearm as charged in count three,9 see U.S.S.G. 2B3.1; by
three levels due to the fact that the victim was a "law
enforcement officer," see id. 3A1.2(b); and finally by one
level because the loss sustained as a result of the robbery
exceeded $10,000.00, see id. 2B3.1(b)(6)(A). Combined with a
criminal history category of I, the total offense level of 30
9 Count three charged that:
[T]he defendant herein did knowingly,
willfully, intentionally, and unlawfully
rob Postal Inspector Ivette O'Neill, a
person having lawful charge, custody and
control of an official United States
Postal vehicle, to wit: a 1989 gold
Honda Accord, registration tag number
AWX-038, United States Postal service
vehicle number 9911443 and in so doing,
the defendant, HECTOR MANUEL CARRILLO,
also known as "El Roquero," did put the
life of Postal Inspector Ivette O'Neill
in jeopardy by the use of a dangerous
weapon, to wit: a stainless steel
revolver with a barrel approximately two
(2) inches long, all in violation of
title 18, United States, section 2114.
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resulted in a guideline sentencing range ("GSR") of 97 to 121
months. The sentencing court imposed a sentence of 121 months.
We review interpretations of the Sentencing Guidelines
de novo. United States v. Skrodzki, 9 F.3d 198 (1st Cir. 1993)
(citing United States v. Mullins, 992 F.2d 1472, 1478-79 (9th
Cir.), cert. denied, Winkleman v. United States, 113 S. Ct. 2997
(1993). After determining the Guideline's meaning and scope, we
review the sentencing court's factual findings for clear error.
Id.
Appellant argues that the enhancement for using a
firearm is inappropriate because the firearm for which he
received a six level enhancement is the same firearm referred to
in count two of the indictment.10 He contends, without
argument or citation to authority, that since the jury acquitted
10 Count two of the indictment reads,
[T]he defendant herein, did knowingly use
and carry a firearm of the following
description: a stainless steel revolver
with a barrel approximately two (2)
inches long, during and in relation to a
crime of violence in violation of Title
18, United States Code, Section 111, as
defined in Title 18, United States Code,
924(c)(1) and (3), which may be
prosecuted in a Court of the United
States, to wit: assaulting, resisting,
opposing, impeding, intimidating or
interfering, with Postal Inspector Ivette
O'Neill, an officer designated in Title
18, United States Code, Section 1114,
while engaged in the performance of her
official duties. All in violation of
Title 18, United States Code, Section
924(c)(1) and (3).
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him on count two the sentencing court could not take the firearm
into account for calculating his sentence on count three. We
find nothing inappropriate in the enhancement.
The Guidelines specifically provide that an enhancement
is to be applied when a firearm is used during the commission of
a robbery. The fact that the jury found the appellant not guilty
on count two of the indictment is irrelevant to the sentencing
enhancement applied under count three, because count three
specifically charged appellant with conduct which included "[the]
use of a dangerous weapon, to wit: a stainless steel revolver
with a barrel approximately two (2) inches long." Accordingly,
appellant's argument that the six level enhancement is based on
conduct of which he was acquitted mischaracterizes the basis for
the enhancement applied by the sentencing court.
Thus, we need go no further. Since the conduct
pursuant to which the enhancement was applied formed part of
count three as alleged, and since appellant was convicted on
count three, we believe that the district court correctly imposed
the six level enhancement for use of a firearm, see U.S.S.G.
2B3.1(b)(2)(B), and that the resulting ten-year and one-month
Guideline sentence was proper and well within the twenty-five
year maximum permitted under 18 U.S.C. 2114.
Next, the appellant argues that the three level
enhancement imposed because Inspector O'Neill was a law
enforcement officer constituted error since the base offense
level for robbery contains an inherent enhancement which already
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takes account of O'Neill's status as a postal employee. The
court applied the enhancement pursuant to Guideline Section
3A1.2.(b) which provides:
[If] during the course of the offense or
immediate flight therefrom, the defendant
or a person for whose conduct the
defendant is otherwise accountable,
knowing or having reasonable cause to
believe that a person was a law
enforcement or corrections officer,
assaulted such officer in a manner
creating a substantial risk of serious
bodily injury, increase [the base offense
level] by 3 levels.
Note 5 of the Commentary Notes to Section 3A1.2 provides:
Subdivision (b) applies in circumstances
tantamount to aggravated assault against
a law enforcement or corrections officer,
committed in the course of or in
immediate flight following , another
offense, such as bank robbery. While
this subdivision may apply in connection
with a variety of offenses that are not
by nature targeted against official
victims, its applicability is limited to
assaultive conduct against law
enforcement or corrections officers that
is sufficiently serious to create at
least a "substantial risk of serious
bodily injury" and that is proximate in
time to the commission of the offense.
At the sentencing hearing, the court ruled that the enhancement
applied because the defendant had to be aware that Inspector
O'Neill was a law enforcement officer as the vehicle that she was
driving exhibited characteristics identifying it as an official
vehicle.
Appellant contends that Note 4 of the Commentary to
Section 3A1.2 precludes the enhancement:
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"Motivated by such status" in subdivision
(a) means that the offense of conviction
was motivated by the fact that the victim
was a government officer and employee, or
a member of the immediate family thereof.
This adjustment would not apply, where
both the defendant and victim were
employed by the same government agency
and the offense was motivated by a
personal dispute. This adjustment would
also not apply in the case of a robbery
of a postal employee because the offense
guideline for robbery contains an
enhancement ( 2B3.1(a)) that takes such
conduct into account.
Appellant argues that Inspector O'Neill is a postal employee and
that therefore the three level enhancement should not have been
applied. Appellant's reliance on Note Four is misplaced. Note
Four governs when the three level enhancement is applied pursuant
to section 3A1.2(a), not section 3A1.2(b). The sentencing court
enhanced the BOL by three levels because Inspector O'Neill is a
law enforcement officer, not because she was a postal employee.
To be sure, Note Four makes clear that a three level enhancement
cannot be applied pursuant to U.S.S.G. 3A1.2(a) if the offense of
conviction was motivated by the fact that the victim was a postal
employee. However, the sentencing court applied the enhancement
because it found that the appellant had reasonable cause to
believe that Inspector O'Neill was a law enforcement officer.
Therefore, we find that the court properly enhanced the BOL by
three levels pursuant to 3A1.2(b).
Appellant's final assignment of error involves the one
level enhancement imposed pursuant to U.S.S.G. 2B3.1(b)(6)(A)
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because the court calculated the loss11 suffered as a result of
the robbery at more than $10,000.00. The court found that the
property at issue here -- a 1989 Honda Accord, a bulletproof
vest, a cellular telephone, a radio, a radio converter, and the
vehicle's blue emergency revolving lights -- had a total market
value of $14,635.00. Section 2B3.1(b)(6)(A) provides that if the
loss suffered as a result of a robbery exceeds $10,000.00, the
BOL should be increased by one level. Appellant's contentions on
appeal, generously construed, are that the sentencing court erred
in finding that the loss in this case was more than $10,000.00
because (1) the court did not use an appraisal of the vehicle in
making its finding; (2) the court did not use the "black book" to
establish the vehicle's fair market value; (3) the fair market
value of the vehicle at the time of the sentencing was less than
$10,000.00 because as a government vehicle it is tax exempt; and
(4) the sum of the vehicle's correct fair market value and the
value of the other items missing from the car do not exceed
$10,000.00.
Ordinarily, when property is taken, the amount of the
loss is calculated by using the fair market value of the
particular property at issue. U.S.S.G. 2B1.1; App. Note 2.
The amount of loss in the case of a vehicle is calculated using
the market value of the vehicle even if the vehicle is recovered
immediately. Id. "The loss need not be determined with
11 "Loss" means the value of the property taken. U.S.S.G.
2B1.1; App. Note 2.
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precision, and may be inferred from any reasonably reliable
information available, including the scope of the operation."
U.S.S.G. 2B1.1; App.
Note 3. A defendant bears a heavy burden of demonstrating that
the district court's finding on value is clearly erroneous.
Skrodzki, 9 F.3d at 203.
A sentencing court may base its finding on any
reasonably reliable information available. In finding that the
market value of the items at issue here exceeded the sum of
$10,000.00, the court credited information in the presentence
report, as well as the hearsay testimony of the probation officer
at the sentencing hearing that postal agent J.J. Rodr guez had
stated that the fair market value of the vehicle was $11,000.00;
its cost to the government, $8,750.00; the value of the
bulletproof vest, $350.00; the cellular telephone, $850.00; the
radio, $1,700.00; the radio converter, $700.00; and emergency
lights, $35.00. Appellant presented no evidence to rebut the
probation officer's testimony. Appellant advanced no ground for
considering the testimony of the probation officer unreliable and
the sentencing court credited it as having sufficient indicia of
reliability. Finally, the value of government vehicles is not
affected by their tax exempt status. The sentencing court's
findings were not clearly erroneous. For the reasons set forth
above, we find that the sentencing court did not commit error in
imposing appellant's sentence.
III.
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CONCLUSION
For the foregoing reasons, appellant's conviction and
sentence are affirmed.
affirmed
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