United States Court of Appeals
For the First Circuit
No. 01-2335
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN M. MOJICA-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Gibson, John R.,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Alan D. Campbell, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Nelson Pérez-Sosa, Senior
Appellate Assistant United States Attorney, were on brief, for
appellee.
January 12, 2006
*
Of the Eighth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Defendant-appellant Juan
Miguel Mojica-Rivera ("Mojica") was convicted by a jury for his
involvement in a bank robbery and car-jacking. He now appeals,
arguing that the district court erred in denying his motion for a
new trial and that he should be re-sentenced. We affirm.
I. Background1
On February 21, 1996, a federal grand jury issued a six-
count indictment charging Mojica with one count of bank robbery and
incidental crimes resulting in death, in violation of 18 U.S.C.
§§ 2, 2113(a), (d), & (e) ("Count One"); two counts of aiding and
abetting in the use of a firearm in the commission of a crime of
violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)-(2) ("Count
Two" and "Count Four"); one count of armed car-jacking resulting in
death, in violation of 18 U.S.C. §§ 2, 2119(3) ("Count Three"); one
count of being a fugitive in possession of a firearm, in violation
of 18 U.S.C. §§ 2, 922(g), 924(a)(2) ("Count Five"); and one count
of aiding and abetting in the possession of a semi-automatic
assault weapon, in violation of 18 U.S.C. §§ 2, 922(v)(1),
924(a)(1)(B) ("Count Six").
On June 6, 1997, Mojica was convicted of all counts
following a five-day jury trial in the United States District Court
for the District of Puerto Rico. Between December 3, 1997 and
1
The facts underlying Mojica's conviction are not necessary to
our disposition of this case. We therefore do not recount them
here.
-2-
June 13, 2000, Mojica was appointed five different attorneys by the
district court; Mojica requested the withdrawal or substitution of
three of his attorneys.
On August 4, 2000, Mojica filed a pro se motion for a new
trial.2 He argued that he should be granted a new trial on the
grounds of juror bias, ineffective assistance of counsel, and that
one of the government's witnesses, Luis Nevárez-Marrero
("Nevárez"), had made statements to FBI agents in January 1996 and
given testimony to the grand jury that would have affected his
credibility at trial. On November 8, 2000, Mojica's counsel filed
a supplemental motion with attachments to support his request. In
this supplement, Mojica repeated the claims from his pro se motion
and also argued that he had new impeachment evidence against
Nevárez. That same day, the district court denied Mojica's
motion.3 The district court found that Mojica's motion was not
based on newly discovered evidence and noted that, under Federal
Rule of Criminal Procedure 33 ("Rule 33"), "[a] motion for a new
trial based on any . . . grounds [other than newly discovered
evidence] may be made only within 7 days after the verdict or
2
Due to various delays resulting from motions filed by Mojica and
his co-defendants, including the requests for new counsel, Mojica
had not yet been sentenced at the time he filed his pro se motion
for a new trial.
3
The docket report indicates that Mojica's supplement was not
entered until the day after the district court's decision denying
the motion.
-3-
finding of guilty or within such further time as the court may fix
during the 7-day period." Fed. R. Crim. P. 33 (2000). Because
almost thirty-eight months had passed between the time that Mojica
was convicted and the time he filed his pro se motion, the district
court found that the motion was time-barred.
The following day, the district court granted Mojica's
counsel fifteen days to file a supplementary motion for a new trial
because of the fact that Mojica had not been represented by counsel
at all times after his trial due to the numerous substitutions of
counsel. On December 21, 2000, Mojica filed a motion for
reconsideration of the denial of the motion for a new trial in
compliance with the district court's order. In this motion, Mojica
argued that he had been without counsel for a period of time after
his conviction4 and reiterated that the grounds in his earlier
motions were sufficient for a new trial. The district court denied
the motion on January 19, 2001. The district court found that the
motion was time-barred and also stated that Mojica had "failed to
show that newly discovered evidence warrants a new trial."
On August 23, 2001, Mojica was sentenced to life
imprisonment on Counts One and Three, and to lesser sentences on
the other counts. He was also sentenced to various supervised
release terms. As part of the supervised release, the district
4
Mojica has not made any argument to us based on his alleged lack
of representation.
-4-
court's judgment required that Mojica "submit to one drug test
within 15 days of release from imprisonment and at least two
periodic drug tests thereafter." Mojica appealed on August 23,
2001, and again on August 28, 2001.
II. Analysis
A. Motion for a New Trial
Mojica argues that the district court erred in denying as
untimely his motion for a new trial. We review a denial of a
motion for a new trial for manifest abuse of discretion. United
States v. Colón-Muñoz, 318 F.3d 348, 357 (1st Cir. 2003).
"However, the contention that the district court applied an
incorrect legal standard in denying the motion is reviewed de
novo." Id. at 357-58.
Mojica argues that the district court erred because it
applied the incorrect version of Rule 33, which was amended in
1998. Prior to the amendment, Rule 33 stated that "[a] motion for
a new trial based on the ground of newly discovered evidence may be
made only before or within two years after final judgment"
(emphasis added) (1997). Courts of appeals construed "final
judgment" to mean the final actions of the courts of appeals. See
Colón-Muñoz, 318 F.3d at 356 n.2. According to Mojica, because he
had not yet appealed when he filed his motion for a new trial,
under the old version of Rule 33 his motion would have been timely.
-5-
Under the amended version of Rule 33, "[a] motion for new
trial based on newly discovered evidence may be made only within
three years after the verdict or finding of guilty" (emphasis
added) (2000). Mojica was found guilty on June 6, 1997 but did not
file his motion for a new trial until August 4, 2000, more than
three years later. Thus, under the amended version of Rule 33, his
motion for a new trial was time-barred. However, the order
accompanying the amendment to Rule 33 stated that the amendment
"shall take effect on December 1, 1998 and shall govern all
proceedings in criminal cases thereafter commenced and, in so far
as just and practicable, all proceedings in criminal cases then
pending." Order of the United States Supreme Court Adopting and
Amending the Federal Rules of Criminal Procedure, 523 U.S. 1229
(1998) (emphasis added). Mojica's argument is that it was not
"just and practicable" for the district court to use the amended
version of Rule 33.
Mojica based his motion for a new trial on the following:
(1) juror bias; (2) ineffective assistance of counsel; (3) that
Nevárez gave certain statements to an FBI agent in January 1996 and
testimony to the grand jury that affected his credibility; and (4)
that Nevárez gave false testimony in a sworn statement to a local
prosecutor and at a commonwealth criminal trial, both of which were
subsequent and unrelated to Mojica's convictions. We deal with
each argument in turn.
-6-
Mojica's argument for juror bias is based on the fact
that three jurors stated that they were victims of crimes of
violence. As the government notes, Mojica and his counsel were
present during juror selection when three jurors disclosed these
facts. We have stated that facts supporting a potential claim for
juror bias that were known by a defendant during jury impanelment
cannot constitute "newly discovered" evidence. See United States
v. Desir, 273 F.3d 39, 43 (1st Cir. 2001). Mojica faces the same
problem regarding ineffective assistance of counsel, as the facts
giving rise to the alleged ineffective assistance were available at
trial and thus do not constitute newly discovered evidence. See
United States v. Osorio-Peña, 247 F.3d 14, 19 (1st Cir. 2001). As
to Mojica's third argument, these statements were known to Mojica
before trial and some of them were used by Mojica to impeach the
government's witness. All three of these claims were thus subject
to the seven-day limitations period in Rule 33, and Mojica's motion
was over three years late.
Mojica's final argument is that Nevárez gave false
testimony to a local prosecutor in a sworn statement made on
January 16, 1998 in an unrelated commonwealth criminal case.
Nevárez also gave false testimony in 1999 during an unrelated
commonwealth criminal trial. Mojica argued in his motion that the
evidence demonstrated a "pattern of lies and misleading
information" on the part of Nevárez, showed that the government
-7-
"relied in [sic] a dishonest and biased liar witness," and thus
warranted a new trial. Because the alleged false testimony
occurred after Mojica was tried and convicted, it was not known or
available to Mojica at the time of his trial. Nevertheless, the
district court did not err in denying Mojica's motion for a new
trial based on this alleged new evidence.
In its January 19, 2001 order, the district court cited
to the amended version of Rule 33 and emphasized the portion
stating that a motion for a new trial based on newly discovered
evidence must be filed within three years after the guilty verdict.
Mojica argues that the district court erred in using the amended
version of Rule 33. As we noted above, the order accompanying the
amendment stated that it would take effect on December 1, 1998 and
would apply to all criminal cases then pending "so far as just and
practicable." Mojica's case was pending at the time that the
amended version of Rule 33 took effect; thus, the issue is whether
it was "just and practicable" for the district court to use the
amended version.
We have not yet addressed the issue of when applying the
amended version of Rule 33 is just and practicable. However, other
courts of appeals to reach the issue have upheld the application of
the amended version where a defendant has had time after the
amended rule went into effect in which to file a motion for a new
trial. See United States v. Ristovski, 312 F.3d 206, 212 (6th Cir.
-8-
2002) (application of the amended version of Rule 33 was just and
practicable where the defendant had nineteen months from the date
the amendment came into effect in which to file a motion for a new
trial); United States v. Correa, 362 F.3d 1306, 1309 (11th Cir.
2004). Compare United States v. Bowler, 252 F.3d 741, 746 (5th
Cir. 2001) (application of the amended version of Rule 33 was not
just and practicable where, under the amended version, the
defendant would have been required to file his motion for a new
trial almost five months before the amended version took effect).
Mojica was convicted on June 6, 1997. After the amendment to Rule
33 took effect on December 1, 1998, Mojica had until June 6, 2000
-- more than eighteen months -- to file a motion for a new trial
based on newly discovered evidence. Like the defendant in
Ristovski, Mojica had ample time to bring his motion for a new
trial, and we therefore find that application of the amended
version of Rule 33 was just and practicable. The district court
did not err in finding that Mojica's motion was time-barred.5
5
Even if we were to find that the district court erred in
applying the amended version of Rule 33, we would still affirm its
decision because the district court correctly determined that
Mojica had "failed to show that [the] newly discovered evidence
warrants a new trial." The only new evidence that Mojica offered
was Nevárez's alleged false testimony in unrelated cases subsequent
to Mojica's trial and conviction. The government correctly notes
that this is "impeachment evidence cumulative on the issue of the
cooperating witnesses' credibility." Brief of Appellee at 32; see
Colón-Muñoz, 318 F.3d at 358 (stating that new evidence must, inter
alia, be "not merely cumulative or impeaching") (quoting United
States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980)). Further,
after reviewing the record, we have no doubt that the government's
-9-
B. Booker
Mojica's second argument is that he should be re-
sentenced pursuant to the Supreme Court's decision in United States
v. Booker, 543 U.S. 220 (2005). Mojica concedes that he did not
preserve a Booker claim, and our review is thus for plain error.
See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.
2005). The first two prongs of this test -- that there is an error
and the error was plain -- are met whenever a district court treats
the Sentencing Guidelines as mandatory. Id. at 77. To satisfy the
other two prongs -- that the error affected substantial rights and
seriously impaired the fairness, integrity, or public reputation of
the judicial proceedings -- Mojica must show that there is a
reasonable probability that he would receive a more favorable
sentence under advisory Guidelines. Id. at 75.
At sentencing, Mojica was assigned a total offense level
("TOL") of 43 as to Counts I and III and a criminal history
category ("CHC") of VI. Under the Guidelines, a TOL of 43 mandates
a life sentence regardless of a defendant's CHC. As a result,
Mojica was sentenced to life imprisonment as to Counts I and III,
and to lesser terms of imprisonment on the other counts. The
case against Mojica was so strong that even if the jury discredited
Nevárez's testimony, it still would have convicted Mojica. The
district court thus correctly found that the new evidence would not
warrant a new trial.
-10-
district court said nothing to indicate whether it felt that the
sentence was just or fair.
Mojica argues that, because the Guidelines mandated a
life sentence due to his TOL, the district court had a "complete
lack of discretion to pick a sentence from [a] calculated range,
[and] the sentence actually imposed reveals nothing of the District
Court's thoughts as to the appropriate sentence." Brief for
Appellant at 19-20. Since the district court effectively had no
discretion regarding how long to sentence Mojica under the
Guidelines, Mojica argues we should consider its silence as to the
justness of the sentence as a factor in favor of a remand and
should treat his situation in the same manner as we would treat a
defendant who had been sentenced at the low end of a Guidelines
range. Mojica also argues that, under an advisory Guidelines
regime, the district court could consider certain factors that it
was unable to consider when the Guidelines were mandatory. These
factors include certain details about Mojica's family and medical
history.
Having reviewed the record, especially the sentencing
transcript, we believe that Mojica has failed to show that there is
a reasonable probability that the district court would give him a
more favorable sentence on a remand. First, the district court
gave no indication at sentencing that it thought that the sentence
was in any way unfair or unjust. See Antonakopoulos, 399 F.3d at
-11-
81 (stating that there "is a powerful argument for remand" when a
district court has expressed its belief that a Guidelines sentence
is unfair or unjust). Second, the evidence regarding Mojica's
family and medical history was before the district court at the
time of sentencing. "We ordinarily have refused to order post-
Booker remands where -- as here -- the district court had before it
all the evidence material to [medical and family history], yet
demonstrated no inclination to consider them grounds for
departure." United States v. Morrisette, --- F.3d ---, 2005 WL
3062003, at *5 (1st Cir. Nov. 16, 2005). Finally, we note the
seriousness of Mojica's crimes and his CHC of VI, which is the
highest possible CHC under the Guidelines (and which the district
court did not even take into account since the TOL of 43 mandated
a life sentence). We think it highly unlikely that, given his CHC
and the seriousness of the crimes for which he was convicted, the
district court would sentence Mojica more leniently on remand. We
need go no further. Because Mojica has failed to show a reasonable
probability that he would receive a more lenient sentence on
remand, we affirm the district court's sentence.
C. Improper Delegation
At sentencing, the district court imposed a five-year
term of supervised release as to Counts I and III, and a three-year
term of supervised release as to Counts II, IV, V, and VI, all to
be served concurrently. It then stated that "[t]he terms and
-12-
conditions thereof shall be set forth in the [written] judgment."
The district court's written judgment stated that, as a condition
for supervised release, Mojica "shall submit to one drug test
within 15 days of release from imprisonment and at least two
periodic drug tests thereafter." In his brief, Mojica argued that,
under United States v. Meléndez-Santana, 353 F.3d 93 (1st Cir.
2003), the district court improperly delegated its authority to the
probation officer regarding the number of drug tests Mojica must
undergo during supervised release. In Meléndez-Santana, we
invalidated a judgment that explicitly delegated to the probation
officer the determination of the number of drug tests a defendant
must undergo while on supervised release. 353 F.3d at 106
(requiring "courts to determine the maximum number of tests to be
performed beyond the statutory minimum of three"); see also 18
U.S.C. § 3583(d).
However, during oral argument, Mojica stated that his
delegation argument was foreclosed by an en banc decision of this
Court in United States v. Padilla, 415 F.3d 211 (1st Cir. 2005).
In Padilla, we overruled Meléndez-Santana to the extent that
Meléndez-Santana found that such improper delegation rose to the
level of plain error. However, Mojica's case likely does not
involve plain error review, meaning that Padilla would not apply.
This is because Mojica never had an opportunity to object to the
wording of the drug testing condition, as the drug testing
-13-
condition was not included in the district court's oral judgment.
Padilla, 415 F.3d at 218 (holding that abuse of discretion review
is appropriate where defendant has not had opportunity to object to
sentence). In Brown v. United States, 235 F.3d 2, 3 (1st Cir.
2000), we stated that "[t]ypically, the court of appeals reviews a
district court's imposition of a special condition of . . .
supervised release for abuse of discretion" unless "the sentencing
court affords the defendant an opportunity to object to the
condition but the defendant holds his tongue," in which case review
is for plain error. In both Padilla and Meléndez-Santana, the
district court had included the supervised release condition in the
oral sentence and given the defendants an opportunity to object.
By contrast, in Mojica's case the district court merely stated that
Mojica would be placed on supervised release, with the terms and
conditions to be set forth in the written judgment. As Mojica had
no opportunity to object to the conditions of supervised release,
our review is for abuse of discretion.
In United States v. Lewandowski, 372 F.3d 470, 471 (1st
Cir. 2004), a district court used language identical to the
language used by the district court in the instant case. We stated
that, although there was no explicit delegation to the probation
officer
the court's order did not definitively declare
who was to determine the maximum number of
drug tests, and, inasmuch as the probation
officer has the responsibility for monitoring
-14-
the defendant while on supervised release,
counsel conceivably could argue that there was
an implicit delegation to the probation
officer.
Id. To solve the potential problem, we construed "the condition to
cap the number of drug tests at three, i.e., to state both the
maximum and minimum number of tests." Id. We apply the same
practice to the instant case and thus find no delegation error.
See United States v. De Los Santos, 420 F.3d 10, 16 (1st Cir. 2005)
(applying Lewandowski procedure).
III. Conclusion
For the foregoing reasons, Mojica's conviction and
sentence are affirmed.
Affirmed.
-15-