United States v. Lebron-Cepeda

United States Court of Appeals
For the First Circuit

No. 01-1650

UNITED STATES OF AMERICA,

Appellee,

v.

VICTOR LEBRÓN-CEPEDA,

Defendant, Appellant

No. 00-2293

UNITED STATES OF AMERICA,

Appellee

v.

JOSE R. CARABALLO-GONZALEZ,

Defendant, Appellant

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,
and Shadur,* Senior District Judge.
 Marlene Aponte Cabrera, for appellant Victor Lebrón Cepeda.
Rachel Brill, for appellant Jose Ramon Caraballo-Gonzalez.
Thomas F. Klumper, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, Criminal Division, and Daniel
Vaccaro, Assistant United States Attorney, were on brief for
appellee.

March 31, 2003

*Of the Northern District of Illinois, sitting by designation.

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 Per Curiam. At the conclusion of a twelve-day trial, a

jury convicted defendants-appellants José Ramón Caraballo-Gonzalez

and Victor Lebrón-Cepeda of committing and aiding and abetting each

other and others in the commission of a carjacking resulting in a

death, see 18 U.S.C. §§ 2119(3) and 2, and of using and carrying,

and aiding and abetting each other and others in the use and

carriage of, a firearm during and in relation to the carjacking,

see 18 U.S.C. §§ 924(c)(1)(3) and 2. The district court

subsequently sentenced each defendant to life imprisonment for his

carjacking conviction and to a statutorily mandated five-year

consecutive term of imprisonment for his firearm conviction.

Defendants appeal these judgments on a number of grounds. We

affirm.

I. Background

We start with an account of the facts of the crimes as

the jury could have found them, e.g., United States v. Diaz, 285

F.3d 92, 94 (1st Cir. 2002), but defer providing certain additional

information until we discuss the issues to which the information is

relevant.

At about 11:40 p.m. on March 23, 1996, Iván Fontánez-

Bruno, a Puerto Rico Police Department cadet, drove his 1994

Hyundai automobile into a parking lot in a park adjoining a beach

in Figwort, Puerto Rico. Daisy Torres-Muñoz, a fellow cadet whom

Fontánez was dating, was seated next to him in the front passenger

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seat. Fontánez and Torres had their police-issued firearms with

them. Torres was carrying her weapon, but Fontánez had placed his

in a black bag between the seats and next to the emergency brake.

As the automobile entered the lot, Torres noticed

appellant Caraballo, co-defendant Harold Evans-Garcia (who was

tried separately, see United States v. Evans-Garcia, No. 01-2617,

(1st Cir. March 19, 2003), and a third man she never was able to

identify (but whom other evidence showed to be appellant Lebrón)

sitting on some nearby rocks. The three earlier had split from a

larger group of individuals (all of whom were named as co-

defendants) with the shared intention of committing a carjacking.

All three knew that, just prior to the carjacking, Caraballo was

armed with a nickel-plated .38 caliber revolver that would be used

to facilitate the contemplated carjacking.

Fontánez parked his car next to a light pole along the

beach front and turned it off. The car's windows were down.

Fontánez and Torres began to talk about the driver's licenses they

would need in order to drive patrol cars for the police force. As

they were talking, Torres opened her purse and, after placing her

gun between her legs, set her purse down on top of it in order to

retrieve her driver's license. Periodically, Torres looked out the

Hyundai's rear window at the individuals on the rocks because the

way they were studying the cars in the lot aroused her suspicion.

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 Eventually, Torres mentioned her concern about the

individuals to Fontánez and suggested that they leave. Fontánez

turned to start the ignition and drive off, but was unable to do so

because the three men had surrounded the car. Caraballo and Lebrón

approached on the driver's side window, while Evans-Garcia

approached on the passenger's side. Caraballo thrust the revolver

through the window and placed it against Fontánez's head. Fontánez

removed his gun from his bag, but Caraballo warned Fontánez against

using it, stating that his revolver was cocked. Fontánez dropped

the gun.

Caraballo, Evans-Garcia, and Lebrón pulled open the car

doors and ordered Fontánez and Torres, who was concealing her gun

beneath her purse, to move into the car's backseat. Fontánez and

Torres complied and took seats facing each other, with Fontánez in

the middle and Torres on the driver's side. Caraballo handed his

revolver to Lebrón and took the wheel; Evans-Garcia picked up

Fontánez's weapon and sat in the front passenger seat; Lebrón

seated himself in the rear on the passenger's side and placed the

revolver against Fontánez's head. After warning Lebrón to be

careful because the revolver was cocked, Caraballo drove away.

At some point, Evans-Garcia accused Fontánez of being a

police officer because only an officer would have a weapon like the

one Fontánez had dropped. Fontánez denied being a police officer

and claimed that he worked for Wells Fargo. Fontánez and Torres

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begged to be released and offered to give the three assailants

money and to drop them off wherever they wanted. One or more of

the assailants replied to the effect that Fontánez and Torres would

not be released and should know that they were "on [their] way to

the cemetery."1 The three also robbed Fontánez and Torres of money

and jewelry but were dissatisfied with what they found. Lebrón

returned Torres's jewelry to her.

Shortly thereafter, under the guise of putting on her

sandals, Torres placed her gun under the seat in front of her in a

place where she could grab it should the need arise and the

opportunity present itself. After she sat back up, Torres placed

one of her feet on top of the gun. But almost immediately,

Caraballo drove the car into something that caused one of its

bumpers to become detached and to be dragged along the ground. The

impact caused Torres to inadvertently kick the gun to a spot beyond

her reach. Moments later, apparently after discovering something

that identified Fontánez as a police officer, Evans-Garcia yelled,

"I told you. I told you that this son of a bitch was a cop."

1
In her direct testimony, Torres testified that Caraballo and
Lebrón made this remark. But on cross-examination, Torres testified
that Evans-Garcia made the statement. The government has taken the
position that Evans-Garcia made the statement but has neither
acknowledged the inconsistency nor explained why we should adopt its
reading of the record. Compare Evans-Garcia, No. 01-2617, slip op. at
3 (recounting that, at Evans-Garcia's trial, the evidence suggested that
Evans-Garcia had made the "cemetery" comment).

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Lebrón immediately shot Fontánez once in the head, and Evans-Garcia

turned around and shot him seven more times.

Following the shooting, Caraballo made a U-turn and

stopped the car. He and Lebrón exited and pulled the rear bumper

completely free from the chassis, removed Fontánez's body, and

dumped it on the road next to the car. Evans-Garcia pulled Torres

from the car by her hair and, after a brief argument among the

carjackers about whether to kill her as well, Lebrón told her to

run. Torres jumped over a barrier next to the road and watched as

the car drove off. Torres then ran to a nearby business and

persuaded a patron to call the police. A patrol car arrived almost

immediately. Torres gave one of the responding officers a

description of the Hyundai and a brief description of its

occupants. She also made the officer aware of the direction in

which the car had departed. The officer communicated this

information to other police officers via his police radio.

At about 12:15 a.m. on March 24, 1996, Carlos Martinez-

Rivera, a marshal in the Puerto Rico court system, observed a red

car with a missing bumper come to an abrupt stop in front of him.

He saw Caraballo, Evans-Garcia, and a third man whom he was not

able to identify (but whom other evidence showed to be Lebrón) exit

the vehicle and walk quickly in the direction of a nearby housing

project. Regarding what he had seen as suspicious, Martinez went

to his nearby residence and called the police. He learned about

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the carjacking and murder. Martinez returned to the red car and

gave a police officer who arrived at the scene a description of its

occupants. He also pointed out the housing project towards which

they had been headed. The officer passed the information along to

other officers. A short time later, the police arrested Caraballo

and Evans-Garcia at the housing project. Lebrón escaped arrest

that night and fled to New York, where he was apprehended on April

13, 1997.

II. Discussion

Caraballo and Lebrón together challenge the sufficiency

of the evidence underlying their carjacking convictions and, by

extension, the sufficiency of the evidence underlying their

firearms convictions. Caraballo alternatively argues that his

convictions were tainted by the district court's erroneous

admission of out-of-court and in-court identifications of him by

witnesses Torres and Martinez; by the court's plainly erroneous

admission under Fed. R. Evid. 801(d)(2)(A) of certain out-of-court

statements of Lebrón which tended to inculpate Caraballo; and by

the court's denial of his motion for a mistrial when a witness

testified that Lebrón had told him that Caraballo shot Fontánez.

Lebrón alternatively contends that the court erred in applying the

first degree murder cross reference specified in U.S.S.G. §

2B3.1(c)(1); in declining to award him a role-in-the-offense

downward adjustment; in computing his criminal history category;

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and in declining to order that his court-appointed trial counsel be

reimbursed for expenses incurred in flying a court-authorized

defense witness from Washington, D.C. to Puerto Rico in order to

testify at trial. We address each of these arguments in turn.

A. Sufficiency Arguments

Caraballo and Lebrón together assert that the evidence

was insufficient to support the jury's determination that they had

the mens rea required by 18 U.S.C. § 2119.2 Relying upon a portion

of the penultimate sentence of Holloway v. United States, 526 U.S.

1, 12 (1999) ("The intent requirement of § 2119 is satisfied when

the Government proves that 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 . . . .") (emphasis

2
The federal carjacking statute states:

Whoever, with the intent to cause death or serious
bodily harm[,] takes a motor vehicle that has been
transported, shipped, or received in interstate or foreign
commerce from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall --

(1) be fined under this title or imprisoned
not more than 15 years, or both,

(2) if serious bodily injury [defined in a
different statute] results, be fined under this
title or imprisoned not more than 25 years, or
both, and

(3) if death results, be fined under this
title, or imprisoned for any number of years up to
life, or both, or sentenced to death.

18 U.S.C. § 2119.

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supplied), they say that the evidence was inadequate to ground a

finding that they were prepared to seriously harm or kill Fontánez

prior to learning that he was a police officer -- which happened

only after they had taken control of his automobile. The

government's response is built from the remainder of the sentence

appellants quote, which says that a conditional intent to seriously

harm or kill the driver "if necessary to steal the car" is

sufficient to satisfy the statute. Id. In the government's view,

the evidence was adequate to support a determination that

appellants were prepared to seriously harm or kill Fontánez in the

beach parking lot had he resisted their initial demand for his car.

The evidence that Caraballo placed a loaded and cocked

revolver against Fontánez's head at the inception of the carjacking

and verbally threatened him permitted the jury to infer that

Caraballo would have shot Fontánez had Fontánez failed to comply

with Caraballo's demand that he turn over the car. See Evans-

Garcia, slip op. at 8; cf., e.g., United States v. Adams, 265 F.3d

420, 424 (6th Cir. 2001) (evidence sufficient to support intent

finding where the defendant threatened and then physically touched

the victims with his gun); United States v. Lake, 150 F.3d 269, 272

(3d Cir. 1998) (evidence sufficient to support intent finding where

defendant placed a gun near the head of the victim and asked for

her keys). Moreover, the evidence that Lebrón willfully and

knowingly participated in the initiation of the carjacking while

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fully cognizant of how Caraballo intended to (and did in fact) use

the revolver permitted the jury to draw the same inference as to

him. See Evans-Garcia, slip op. at 8. Because the evidence was

sufficient to permit the jury to draw these inferences, it was

adequate to ground its determination that appellants took the

vehicle with the required mens rea. See id.; see also Holloway,

526 U.S. at 12.3

In his brief, Lebrón makes an additional sufficiency

argument. Lebrón starts by asserting that the evidence pertaining

to his role in the offense derived solely from out-of-court, post-

offense confessions he made to a number of third parties, which the

third parties recounted to the jury (and which were admissible

against Lebrón as admissions under Fed. R. Evid. 801(d)(2)).

Building from this base, Lebrón contends that the accounts of his

various confessions that the jury heard so conflicted with one

another that we should treat them as inadequate to sustain his

3
Caraballo makes related arguments that, in instructing the jury,
the district court erred in failing (1) to emphasize the need for a
nexus between the taking and the intended harm at the precise moment the
vehicle was relinquished, and (2) to specify that a conditional intent
to seriously harm or kill is sufficient to satisfy the statute's mens
rea requirement. Caraballo's first argument fails because the
instructions simply tracked the language of 18 U.S.C. § 2119, which is
itself adequate to put the jury on notice of the required nexus. See
id. (stating that the unlawful taking or attempted taking must be
committed "with" the specified intent). His second challenge fails
because he did not object to the absence of a conditional intent
instruction, and because he has not explained how the absence of such
an instruction might have affected his substantial rights. See United
States v. Olano, 517 U.S. 725, 735 (1993).

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conviction. In pressing this claim, Lebrón invokes "[t]he general

rule that a jury cannot rely on an extrajudicial, post-offense

confession, even when voluntary, in the absence of 'substantial

independent evidence which would tend to establish the

trustworthiness of the statement.'" United States v. Singleterry,

29 F.3d 733, 737 (1st Cir. 1994) (brackets omitted) (quoting

Opper v. United States, 348 U.S. 84, 93 (1954)). The argument

fails for several reasons.

First, if Lebrón understands the trustworthiness

requirement to apply where the issue is the credibility of

witnesses' testimony about an accused's confession -- and not the

credibility of the confession itself -- he is mistaken. The

trustworthiness requirement is imposed out of concern that people

sometimes fabricate stories about their involvement in a crime, and

accordingly requires the government to introduce evidence other

than the confession which tends to prove that the confession was

not such a fabrication. See id. at 736-37 & n.3. But to the

extent that the in-court testimony about an extra-judicial

confession may be unreliable, that is a matter for cross

examination. Second, this circuit has not decided whether the

trustworthiness requirement constitutes grounds for launching a

sufficiency challenge (as Lebrón has done) or acts merely as a rule

governing the admissibility of evidence. See id. at 737-39 & nn.4-

6. Finally, and perhaps most importantly, Lebrón is wrong in

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stating that there was no evidence against him except that derived

from what he told third parties about his role in the crime. Among

other things, Torres's testimony about the tragic events that

transpired in Fontánez's Hyundai constituted independent proof of

the commission of the charged offense and was more than sufficient

to establish the trustworthiness of Lebrón's confessions within the

meaning of the rule he cites. See id. at 737 & n.2.

B. Caraballo's Alternative Arguments

1. Identification Evidence

Martinez arrived at the scene of Caraballo's arrest

within minutes of its occurrence and, without a request from the

arresting officers, identified him as one of the three men about

whom he had telephoned the police. Torres identified Caraballo in

a photo spread of six photographs held on April 4, 1996, one and

one-half weeks after the carjacking. Prior to trial, Caraballo

moved both to suppress these out-of-court identifications (usually

admissible under Fed. R. Evid. 801(d)(1)(C)) and to prohibit Torres

and Martinez from identifying him in court. Caraballo argued that

the procedures by which the identifications were procured were

impermissibly suggestive, and that the suggestiveness was such that

there was a very substantial likelihood of irreparable

misidentification. See United States v. Simmons, 390 U.S. 377, 384

(1968) (setting forth the two-part standard under which the

appropriateness of suppression is to be judged). In support of his

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motion, Caraballo pointed out that Martinez saw Caraballo

handcuffed and sitting in a police cruiser prior to identifying

him. Caraballo also introduced evidence tending to show that

Torres saw Caraballo in a holding cell when she was brought to the

same police station at which he was being detained a few hours

after the carjacking (a sighting which Torres denied).

Following a five-day hearing, the district court issued

a written order denying Caraballo's motion. Applying the inquiry

mandated by Simmons, the court first held that the procedures that

the police employed were not impermissibly suggestive. With

respect to Martinez, the court found that the police did not use

suggestive procedures "because [Martinez's identification of

Caraballo] was contemporaneous with the events that the witness had

seen only a few minutes before and because it was precisely the

information that he provided to the police that led to

[Caraballo's] arrest." As to Torres, the court implicitly credited

Torres's testimony and found that she did not see Caraballo in a

holding cell prior to identifying him in the photo spread.

On appeal, Caraballo asserts that "there can be no

question" that the district court erred in concluding that the

circumstances under which Martinez identified Caraballo were unduly

suggestive. But this ipse dixit is neither elaborated nor

bolstered by citation to applicable authority. Mindful that a

court is to withhold identification evidence from the jury only in

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"extraordinary circumstances," United States v. de Jesus-Rios, 990

F.2d 672, 677 (1st Cir. 1993) (citation and internal quotation

marks omitted); see also United States v. Maguire, 918 F.2d 254,

263-64 (1st Cir. 1990) (emphasizing that the suggestiveness of an

identification procedure is a proper subject of cross examination

and that the jury is usually competent to weigh intelligently

questionable identification testimony) (citing Manson v.

Brathwaite, 432 U.S. 98, 116 (1977)), this assertion is inadequate

to put the court's conclusion into issue, see United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived."). At any rate, our independent

review of the matter satisfies us that the court permissibly

allowed the jury to hear about Martinez's identification of

Caraballo.

With respect to Torres, Caraballo essentially contends

that the evidence that Torres saw Caraballo in a holding cell a few

hours after the carjacking was so powerful that the district court

erred in crediting the accuracy of Torres's contrary testimony. We

uphold a denial of a motion to suppress if any reasonable view of

the evidence supports the denial. See United States v. Watson, 76

F.3d 4, 6 (1st Cir. 1996). As an appellate court, we lack the

competence and authority to second-guess the court's decision to

credit Torres. See, e.g., United States v. Laine, 270 F.3d 71, 75

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(1st Cir. 2001). And in any event, as with Martinez, our

independent review of the issue leads us to conclude that the court

reasonably allowed Torres's identification of Caraballo to go the

jury.

2. Prejudicial Spillover from the Case against Lebrón

As set forth above, the jury heard several witnesses

recount the details of admissions Lebrón made to them about his

role in the carjacking. Caraballo did not seek a severance of his

trial or a limiting instruction informing the jury that these

admissions were not to be considered against him. Caraballo now

contends that the admissions described facts so similar to those

for which he was on trial that the district court's failure to

sever his trial from Lebrón's or to give the jury a limiting

instruction amounted to plain error within the meaning of Fed. R.

Crim. P. 52(b). Caraballo analogizes his plight to that of the

accused in United States v. Sauza-Martinez, 217 F.3d 754 (9th Cir.

2000), which found plain error in a trial court's failure to give

a limiting instruction at the time it admitted evidence regarding

an extra-judicial statement by the accused's co-defendant that

directly implicated both the co-defendant and the accused.

See id. at 759-61. Caraballo also complains that the court erred

in denying his motion for a mistrial when one of these witnesses

testified that Lebrón told him that Caraballo (and not Lebrón) had

shot Fontánez.

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 While it would be most unusual for us to find that a

district court erred in failing to give a limiting instruction that

was never requested, we shall assume solely for the sake of

argument that the court should have instructed the jury sua

sponte that Lebrón's admissions were not to be considered against

Caraballo. Even so, the hurdle set by Fed. R. Crim. P. 52(b) is

high. See Olano, 507 U.S. at 732-37. And here, Caraballo has

fallen far short of demonstrating that any error was of a type

subject to correction under Rule 52(b).

There never was any doubt that three men participated in

the carjacking and killing at the heart of this case. The case

against Caraballo thus did not turn on what happened; it largely

turned on whether the government had proved beyond a reasonable

doubt that Caraballo was one of the three men who committed these

crimes. In the end, the jury almost certainly credited Torres's

testimony that Caraballo was one of the three men, and Martinez's

testimony that Caraballo was one of the three men whom he saw exit

Fontánez's Hyundai shortly after the carjacking. Lebrón's

admissions -- which with the exception discussed below never

identified Caraballo as one of Lebrón's co-perpetrators (which

distinguishes Caraballo's situation from that of the defendant in

Sauza-Martinez, see 217 F.3d at 761) -- almost certainly had no

bearing on the jury's decision to credit this testimony. The

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absence of a limiting instruction thus did not affect Caraballo's

substantial rights. See Olano, 507 U.S. at 735.

By contrast, the testimony that spurred Caraballo's

motion for a mistrial did identify Caraballo as one of Lebrón's co-

perpetrators. But as we have recently explained: "When a witness

strays into forbidden territory, the usual remedy is to strike the

wayward remark and instruct the jury to disregard it. . . . In all

but the rare case, that remedy, if properly executed, will suffice

to safeguard the aggrieved party's rights." United States v. Lee,

317 F.3d 26, 35 (1st Cir. 2003). Here, as in Lee, the district

court promptly struck the testimony and instructed the jury to

ignore it. And here, as in Lee, the court's refusal to order a

mistrial was within its discretion. See id. Factors similar to

those mentioned by the Lee panel in support of its ruling guide our

analysis.

First, the witness's reference to Caraballo was largely

cumulative of Torres's far more direct and damning testimony that

Caraballo was one of the carjackers and Martinez's testimony that

Caraballo was one of the men who exited Fontánez's Hyundai. See

id. True, Torres did not identify Caraballo as a shooter, as did

the witness. But from the jury's perspective, the identities of

the shooters were immaterial to whether they were guilty of the

carjacking and weapons charges for which they were indicted.

Second, the remark appears to have been entirely accidental and was

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in no way invited by improper government questioning. See id.

Third, the district court quickly struck the remark and told the

jury to disregard it in language with which Caraballo has never

taken issue. See id. Finally, the record provides no reason for

us to disregard the presumption that jurors follow their

instructions. See id. In sum, here (as in Lee), the errant

comment, while unfortunate, was not a difference maker.

C. Lebrón's Alternative Arguments

Lebrón's alternative arguments do not require extended

discussion. His first argument is that the district court erred in

applying the first degree murder cross reference set forth at

U.S.S.G. § 2B3.1(c). This guideline directs the sentencing judge

to apply the guideline for first degree murder, U.S.S.G. § 2A1.1

(setting a base offense level of 43, which requires a life sentence

irrespective of defendant's criminal history), "[i]f a victim was

killed under circumstances that would constitute murder under 18

U.S.C. § 1111 had such killing taken place within the territorial

or maritime jurisdiction of the United States . . . ." Section

1111, in turn, defines murder to include, inter alia, any "unlawful

killing of a human being with malice aforethought . . . committed

in the perpetration of . . . [a] robbery."

At page 9 of his supplemental brief, Lebrón concedes that

the success of his challenge to the application of the first degree

murder cross reference depends on our finding that the killing of

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Fontánez did not occur during the carjacking. But the law of this

circuit is that "the commission of a carjacking continues at least

while the carjacker maintains control over the victim and [his or]

her car." Ramirez Burgos v. United States, 313 F.3d 23, 30 n.9

(1st Cir. 2002). Obviously, the killing of Fontánez took place

prior to the completion of the carjacking under this rule.

Accordingly, we reject Lebrón's assignment of error and affirm the

district court's application of the first degree murder cross

reference.

Lebrón also contends that the district court clearly

erred, see United States v. Ortiz-Santiago, 211 F.3d 146, 148-49

(1st Cir. 2000), in declining to award him a two-level reduction in

his base offense level for playing a minor role in the offenses for

which he was convicted, see U.S.S.G. § 3B1.2(b). In pressing this

claim, Lebrón points to evidence that he refused Evans-Garcia's

directive that he kill Torres, returned Torres's jewelry to her,

and told her to run. Lebrón also contends that he was not the one

giving orders or driving the car.

Our review of a district court's decision not to award a

role-in-the-offense reduction is deferential because the decision

is extremely fact-sensitive. See Ortiz-Santiago, 211 F.3d at 148.

Consequently, "absent a mistake of law, battles over a defendant's

status will almost always be won or lost in the district court."

Id. Here, we see no mistake of law or clear error in the district

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court's judgment that, with respect to the offenses of conviction,

Lebrón was not a minor participant. There was evidence that Lebrón

was the one who proposed the carjacking, secured the revolver used

to take the car, held the revolver to Fontánez's head after

possession of the car was wrested from Fontánez, shot Fontánez in

the head at point-blank range, and ultimately decided that Torres

would be spared. In view of these facts, Lebrón's assertion of

clear error borders on the specious.

Lebrón next asserts, with neither meaningful elaboration

nor citation to authority, that the district court erred in

counting certain juvenile offenses in his criminal record while

calculating his criminal history category (which was determined to

be III). In so doing, Lebrón posits a conflict between U.S.S.G. §

4A1.2(c)(2) (which excepts from the criminal history calculation,

inter alia, sentences for juvenile status offenses and truancy) and

§ 4A1.2(d) (which specifies how certain offenses committed prior to

the age of eighteen are to be counted under the guideline for

computing the defendant's criminal history category, U.S.S.G. §

4A1.1). He says that under the rule of lenity, the conflict should

be resolved against counting his offenses. This dubious argument

is so skeletally sketched that we regard it as waived. See

Zannino, 895 F.2d at 17. In any event, because we have affirmed

the court's application of the cross reference for first degree

murder and its concomitant establishment of a base offense level of

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43, and because we have rejected Lebrón's only claim of sentencing

error that might have reduced his base offense level, Lebrón still

would be subject to a life sentence even if his criminal history

category were I. Thus, any error in the computation of his

criminal history category was harmless. See Williams v. United

States, 503 U.S. 201, 203 (1992) (making clear that erroneous

sentencing determinations not having an effect on the sentence are

harmless errors within the meaning of Fed. R. Crim. P. 52(a)).

Finally, Lebrón challenges the district court's rejection

of his motion for reimbursement of court-authorized expert witness

expenses in the amount of $388.80 advanced to a defense witness by

his trial counsel. The motion was brought under the Criminal

Justice Act, 18 U.S.C. § 3006A. The government, citing extra-

circuit authority, responds that we lack jurisdiction to review a

court's decision to reject a motion of this sort. Lebrón has not

replied to the government's jurisdictional argument.

We do not address the merits of this dispute. Lebrón's

notice of appeal neither specified the order rejecting his motion

for reimbursement nor manifested an intention to challenge it.

Accordingly, he may not now contest the propriety of that ruling.

E.g., Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999);

Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 395 (1st Cir.

1999); cf. Chamorro v. Puerto Rico Cars, Inc., 304 F.3d 1, 3-4 (1st

Cir. 2002) (permitting an appeal of a judgment even though the

-21-
notice of appeal specified only the order denying reconsideration

of the judgment because the notice manifested appellant's intention

to challenge the underlying judgment). That said, the record

reflects that this dispute may be more a matter of miscommunication

than substantive disagreement about Lebrón's counsel's entitlement

to the amount she seeks. If so, we urge the responsible parties to

resolve this matter expeditiously.

III. Conclusion

For the reasons set forth above, we affirm the

convictions and sentences of José Ramón Caraballo-Gonzalez and

Victor Lebrón-Cepeda.

(Concurring opinion follows.)

-22-
 HOWARD, Circuit Judge, concurring. I join the panel's

per curiam opinion in its entirety but write separately to share

some additional thoughts about appellants' primary sufficiency

argument, see ante at 8-9, which raises what I perceive to be a

recurring issue. I first summarize my analysis of the issue and

then explain why I believe it warrants this separate opinion.

I.

Appellants argue that they did not violate the federal

carjacking statute, 18 U.S.C. § 2119, because they did not form an

intent to seriously harm or kill Fontánez (if they formed such an

intent at all) until after they and the separately tried Evans-

Garcia had initiated their crime. In presenting this argument,

appellants rely on statements in Holloway v. United States, 526

U.S. 1 (1999), suggesting that one accused of carjacking must have

had the statutorily prescribed mens rea at "the moment" he demanded

or took control of the driver's vehicle, id. at 12; see also id. at

6-7, 8 (using language to similar effect); see generally ante at 8-

10 (framing and then resolving this argument). In response, the

government cites Holloway's holding, that the mens rea requirement

of § 2119 is met if the defendant acted with a conditional intent

to seriously harm or kill the victim when he commandeered the

victim's vehicle. See id. at 12.

In so framing its response, the government does not

contest the premise of appellants' argument: that Holloway calls

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for an assessment of their mens rea at the inception of the

carjacking. But I do not accept appellants' premise. I do not

believe that Holloway should be read to limit the jury's focus to

the commencement of the carjacking in cases like this one which,

under settled circuit precedent, involve "tak[ings]" that occur

over some period of time, see Ramirez Burgos v. United States, 313

F.3d 23, 30 n.9 (1st Cir. 2002) (declining to specify "the temporal

limits of a carjacking under § 2119" but "reaffirm[ing] that the

commission of a carjacking continues at least while the carjacker

maintains control over the victim and her car"). I backtrack a bit

to explain.

As set forth ante at 8 n.2, the federal carjacking

statute states:

Whoever, with the intent to cause death
or serious bodily harm[,] takes a motor
vehicle that has been transported, shipped, or
received in interstate or foreign commerce
from the person or presence of another by
force and violence or by intimidation, or
attempts to do so, shall --

(1) be fined under this
title or imprisoned not more
than 15 years, or both,

(2) if serious bodily
injury [defined in a different
statute] results, be fined under
this title or imprisoned not
more than 25 years, or both, and

(3) if death results, be
fined under this title, or
imprisoned for any number of

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 years up to life, or both, or
sentenced to death.

18 U.S.C. § 2119. The Supreme Court has held that the statute

describes three offenses with different statutory elements: (1) a

carjacking (or attempted carjacking) simpliciter, § 2119(1); (2) a

carjacking (or attempted carjacking) resulting in a serious bodily

injury, § 2119(2); and (3) a carjacking (or attempted carjacking)

resulting in a death, § 2119(3). See Jones v. United States, 526

U.S. 227, 232-52 (1999). The carjackings under review in Holloway

did not result in a serious bodily injury or a death, and thus were

the kind described in § 2119(1). See 526 U.S. at 4. The

carjacking underlying these appeals was, by contrast, the kind

described in § 2119(3).

Many of the attempted carjackings and carjackings

outlawed by § 2119(1) are entirely committed in the usually brief

and frequently instantaneous period of time that it takes to

initiate and complete the actus reus: the demand (in the case of

an attempted carjacking) or the taking (in the case of a successful

carjacking) of the subject vehicle. They are, in other words,

crimes in which the typical actus reus is aptly thought to occur at

a "moment" in time and not over a period of time. Certainly, the

carjackings at issue in Holloway were of this kind. See 526 U.S.

at 4. Thus, it is not surprising that the Holloway majority

opinion would use the phrase "the moment the defendant demanded or

took control over the driver's automobile" to describe the point in

-25-
time at which the factfinder should assess the mens rea of

defendants who have committed this kind of carjacking. After all,

the defendant's mens rea is to be measured when he commits the

actus reus. See 18 U.S.C. § 2119 (stating that the proscribed

taking or attempted taking must be committed "with" the specified

intent); see also Holloway, 526 U.S. at 8 ("The statute's mens rea

component . . . modifies the act of 'tak[ing]' the motor vehicle.")

(alteration in original).

But I do not find anything in Holloway to suggest that

the majority in that case intended the phrase also to have

prescriptive significance in those carjacking cases where the

defendant kidnaps the vehicle's occupants and thus commits the

actus reus not in a "moment" but rather over an extended period of

time. See Ramirez-Burgos, 313 F.3d at 30 n.9 (citing United States

v. Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998));4 see also

United States v. Hicks, 103 F.3d 837, 843-44 & nn.4 & 5 (9th Cir.

1996) (similar); cf. Wayne R. LaFave, Criminal Law, § 8.5, at 817-

18 (West 2000) (discussing the doctrine of "continuing trespass"

within the law of larceny); Joshua Dressler, Understanding Criminal

Law, § 32.07[B] (2d ed. Matthew Bender 1995) (similar). The only

4
Vazquez-Rivera did not explicitly state that a carjacking
involving a kidnaping continues at least so long as the carjacker
maintains control over the victim and her car, but it implied as much
when it held that a serious bodily injury sustained by a carjacking
victim during a sexual assault that followed both the initial seizure
of her vehicle and her kidnaping "result[ed]" from the carjacking within
the meaning of 18 U.S.C. § 2119(2). See 135 F.3d at 178.

-26-
question presented in Holloway, as described by that case's

majority, was "whether a person who points a gun at a driver,

having decided to pull the trigger if the driver does not comply

with a demand for the car keys, possesses the intent, at that

moment, to seriously harm the driver." 526 U.S. at 6. There was

no issue as to when the assailant's intent is properly measured

because only one possibility presented itself under the case facts:

the "moment" at which the vehicle was commandeered (which was the

moment at which the actus reus was concluded). Nor did the case

address matters pertaining to what we have called "the temporal

limits" of a carjacking. See Ramirez Burgos, 313 F.3d at 30 n.9.

Nor, finally, does the language of the carjacking statute suggest

that, in circumstances such as these, the defendant's mens rea must

be measured at the moment that the taking is initiated. Cf.

Vazquez Rivera, 135 F.3d at 178 ("We begin by noting that there is

no textual basis for asserting that the injury must be 'necessary

to' or 'intended to effectuate' the taking of the vehicle

itself."). There is thus no reason to suppose that, in those cases

where the carjacking occurs over a period of time,

Holloway circumscribes the factfinder's entitlement to assess

appellants' mens rea at any point during the commission of the

actus reus.

Of course, this reading of Holloway does not render it

irrelevant to a case of this sort. Holloway clarifies that we may

-27-
sustain appellants' convictions if the jury rationally could have

found beyond a reasonable doubt, e.g., United States v. Marrero-

Ortíz, 160 F.3d 768, 772 (1st Cir. 1998), that appellants intended

(even conditionally) to seriously harm or kill at the moment they

first took control over the Hyundai, see 526 U.S. at 12. Indeed,

I think the most persuasive reason for affirming appellant

Caraballo's conviction is the "conditional intent" thesis we have

identified in our opinion: The evidence that Caraballo initiated

the carjacking by placing a loaded gun against Fontánez's head

permitted the jury to conclude that Caraballo would have shot

Fontánez had Fontánez failed to comply with Caraballo's demand that

he turn over the car. See ante at 9.

But my reading of Holloway also permits us to sustain

appellants' convictions if the jury rationally could have found

that, at some point in time, they engaged in conduct constituting

part of the actus reus proscribed by 18 U.S.C. § 2119 (or aided and

abetted each other or others in doing so) with the specified mens

rea, and if Fontánez's death resulted from their conduct. See §

2119(3). Cf. LaFave, supra, at 817-18 (explaining that, under the

continuing trespass doctrine, formation of the requisite mens rea

at any time during a continuing, blameworthy trespass is sufficient

to make the trespass a larceny because, at that moment, the taking

and the required intent coincide); Dressler, supra, § 32.07[B][2]

(same). This straightforward ground for affirming Lebrón's

-28-
conviction doe not require asking whether the jury could have found

that he had a conditional intent to seriously harm or kill Fontánez

at the moment the carjackers demanded the car. In my view, we

could have affirmed Lebrón's conviction simply because he

intentionally shot Fontánez in the head at close range during the

actus reus, thus manifesting an intention to seriously harm or kill

him.

II.

Ordinarily, I would not write separately to point out a

different, and less settled, route to a result with which I concur

-- especially where the route that the panel opinion travels is

both entirely correct and based on established law. But there are

situations where the potential costs of leaving matters unresolved

exceed the costs that can be generated by attempting to resolve an

open question. See Cass R. Sunstein, Foreword: Leaving Things

Undecided, 110 Harv. L. Rev. 4, 15-20 (1995). I regard

interpretation of the carjacking statute's mens rea requirement as

such a situation, involving the possible inadvertent foreclosure of

an important issue.

Defendants charged with a carjacking involving a

kidnaping that results in serious bodily injury or death face

extremely stiff penal sanctions. See 18 U.S.C. § 2119(2), (3).

Unless and until we weigh in on whether Holloway has the meaning

appellants have attached to it, such defendants will have a strong

-29-
incentive to argue that the government has failed to prove beyond

a reasonable doubt that they had a conditional intent to harm or

kill -- an elusive concept that is, by its very nature, difficult

to prove -- at the moment they first commandeered the vehicle.

District courts will thus be left to make difficult decisions

whether to permit an argument of this sort, grant a Fed. R. Crim.

P. 29 motion on this basis, and/or instruct the jury without

authoritative circuit guidance.

If appellants' construction of Holloway is permitted to

carry the day, it is not difficult to imagine a scenario where a

carjacking defendant who has kidnaped and harmed (or killed) his

victim escapes punishment under 18 U.S.C. § 2119. Imagine a

carjacking in which the defendant approaches a woman as she is

getting into her vehicle in a crowded parking lot, points an

unloaded gun at her, tells her that he is going to commandeer her

vehicle but that she will be fine if she does as she is told,

drives her to some remote location, and sexually assaults her.

Suppose further that, at his trial for violating § 2119(2),

defendant truthfully testifies that he would have abandoned the

carjacking and run off had the victim resisted, and that he only

decided to assault her when the opportunity presented itself after

he had taken control of her vehicle. Under appellants' reading of

Holloway, an acquittal (not subject to appellate review) would be

mandated in such a situation, despite the fact that the statutory

-30-
language of § 2119(2) easily supports a conviction (under what I

believe to be this circuit's definition of the statutory term

"takes a motor vehicle," see Ramirez Burgos, 313 F.3d at 30 n.9),

and the fact that, as I believe, Congress would intend the statute

to reach this set of facts.

It is a very small but logical step from Ramirez Burgos

to the construction of 18 U.S.C. § 2119(2) and (3) that I have

described. In my view, it is a step that we should take. Doing so

would help to ensure against erroneous acquittals, provide

clarification of the law, and facilitate guilty pleas by carjackers

who kidnap and then harm their victims and who otherwise might roll

the dice on trials designed to raise reasonable doubt as to whether

they had the conditional intent to harm their victims at the

instant they initiated their crimes.

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