United States v. Lowell

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH June 28, 2021
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 20-2014
DANIEL LOWELL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:18-CR-01108-KG-1)

John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Office of the Federal Public Defender,
Denver, Colorado, for Appellant.

Marisa A. Ong, Assistant United States Attorney (John C. Anderson, United
States Attorney, with her on the brief), Office of the United States Attorney for
the District of New Mexico, Las Cruces, New Mexico, for Appellee.

Before TYMKOVICH, Chief Judge, KELLY, and McHUGH, Circuit Judges.

TYMKOVICH, Chief Judge.

Daniel Lowell and his girlfriend went on a Bonnie and Clyde-esque crime

spree that turned deadly. While on their way to cash in a stolen car and credit
cards, the pair were pulled over outside Las Cruces, New Mexico. A high-speed

chase ensued. They carjacked a Toyota 4Runner and eventually law enforcement

lost track of them for two and a half hours in Las Cruces, during which time they

did drugs and shoplifted items from Walmart that they could use to steal another

car. After an officer spotted the 4Runner, another chase ensued, but this time it

ended tragically when their car crashed into a motorcyclist, killing him.

Lowell pleaded guilty to numerous crimes, including carjacking resulting in

death in violation of 18 U.S.C. § 2119(3), and was sentenced to 449 months’

imprisonment. On appeal, Lowell challenges the validity of his guilty plea, as

well as the district court’s application of the United States Sentencing Guidelines

(USSG). Lowell argues that his conviction for carjacking resulting in death is

invalid because he lacked the specific intent to cause the motorcyclist’s death

while in the act of carjacking. But § 2119(3) merely requires but-for causation,

not specific intent to cause the death. Lowell further argues that the district court

erred by applying the first-degree murder cross reference in USSG § 2B3.1(c).

We disagree. The cross reference applies to carjacking because the crime is a

species of robbery, and here, the cross reference was properly applied to Lowell

because the events leading up to the crash were part of a single crime spree and

the motorcyclist’s death was thus in the perpetration of the carjacking. Finding

no error below, we affirm Lowell’s conviction and sentence.

I. Background

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 A. The Crime Spree

Lowell and his girlfriend were drug users looking for ways to support their

habits. Lowell stole a truck in Colorado and knew of a stolen goods buyer in

California. So, in November 2017, the pair left Colorado to cash in the stolen

truck, as well as some stolen credit cards. While traveling through New Mexico

high on methamphetamine, they encountered a United States Border Patrol

immigration checkpoint. The agent ran the truck’s license plate and learned the

truck was stolen. The pair could not produce any form of identification, so the

agent asked Lowell to turn off the truck’s engine. But instead, Lowell fled.

The first chase lasted over half an hour. Lowell drove erratically, both with

and against traffic. Eventually one of the truck’s tires blew out. Lowell stopped

the truck facing oncoming traffic, forcing vehicles to stop. One vehicle forced to

stop was a Toyota 4Runner with a family of four inside. Lowell and his girlfriend

exited the truck and approached the 4Runner with a loaded gun. Lowell pointed

the gun at the driver and demanded he turn over the vehicle. The family exited

the 4Runner and the pair took off in the 4Runner with Lowell’s girlfriend driving.

Border Patrol agents continued to pursue Lowell and his girlfriend in the 4Runner

until they approached Las Cruces. The agents decided to call off the chase

around 2:49 p.m. rather than risk endangering the public with a high-speed chase

on busy urban roads.

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 Over the next two and a half hours, Lowell, his girlfriend, and law

enforcement were busy. Lowell and his girlfriend smoked meth, scoped out the

parking lots of a gym and an apartment complex looking for cars to break into,

and went to Walmart, where Lowell shoplifted spark plugs that he planned to use

to break into another vehicle. Law enforcement (which, by now, comprised four

agencies) continued their efforts to locate Lowell and his girlfriend. They

employed a helicopter to survey the area, prepared to use spike strips and close

off intersections to stop the 4Runner, obtained location information from the

4Runner driver’s phone left behind in the car and sent personnel to those areas,

deployed units throughout Las Cruces, and conducted interviews.

Then, around 5:11 p.m., a second chase began after an officer spotted the

4Runner. Like the first chase, Lowell drove with and against traffic. Lowell also

wove in and out of traffic on city streets and highways, sped through red lights,

hit a police vehicle, and drove through a fence onto an access road. The police

also made numerous unsuccessful attempts to disable the 4Runner by ramming it.

Tragically, the chase ended when the 4Runner—going 61 miles per hour in

a 45—struck a motorcycle and killed the driver. Lowell and his girlfriend fled

the scene on foot and, after a few failed attempts to carjack other vehicles, were

finally arrested.

B. Procedural History

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 Lowell was charged with numerous crimes, including carjacking resulting

in death in violation of 18 U.S.C. § 2119(3). Ten days before his scheduled trial,

Lowell decided to enter a guilty plea. At his change of plea hearing, the district

court accepted the factual basis for the crime provided by the government and

found it sufficient to support Lowell’s guilty plea. Lowell was then convicted of

carjacking resulting in death.

Although Lowell was convicted of many crimes, the Presentence

Investigation Report (PSR) determined his guidelines range was driven entirely

by the carjacking resulting in death count because of the grouping rules of USSG

§ 3D1.4. The PSR began with the general robbery guideline of § 2B3.1, but then

concluded the cross reference in § 2B3.1(c)—which instructs that if a victim was

killed under circumstances that would constitute felony murder under 18 U.S.C.

§ 1111, then the court should instead apply § 2A1.1 for first-degree murder—

applied to Lowell. The PSR reasoned that Lowell’s offense constituted felony

murder because the death of the motorcyclist occurred in the perpetration of a

robbery, one of 18 U.S.C. § 1111’s enumerated offenses supporting felony

murder. The only objection Lowell made to the PSR was that the district court

should not apply the cross reference to him because the motorcyclist’s death was

not “in the perpetration of” the carjacking. Lowell argued that the carjacking had

been completed hours before and he had reached a point of temporary safety

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between chases. The district court overruled Lowell’s objection based on relevant

evidence from a two-day evidentiary hearing and applied the cross reference.

With the cross reference, Lowell’s base offense level was 43 (almost a

20-point increase), the highest offense level in the Guidelines and one that

renders a “range” of life imprisonment, regardless of a defendant’s criminal

history category. But the district court departed to a base offense level of 38

because USSG § 2A1.1 recommends a departure for felony murders where the

defendant did not intend to cause death. Thus, with a base offense level of 38 and

a criminal history category of III, Lowell’s guidelines range was 292 to 365

months’ imprisonment.

The district court sentenced Lowell to 365 months’ imprisonment, to be

followed by a mandatory consecutive sentence of 84 months for brandishing a

firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c)

for a total of 449 months’ imprisonment.

II. Analysis

Lowell challenges both his conviction and sentence on appeal. As to his

conviction, he contends the district court plainly erred in accepting the factual

basis for his guilty plea. And as to his sentence, he argues the district court

improperly applied the cross reference to the first-degree murder guideline in

USSG § 2B3.1(c) to his crime of carjacking.

We disagree and affirm Lowell’s conviction and sentence.

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 A. Lowell’s Conviction

Lowell was convicted of carjacking resulting in death in violation of 18

U.S.C. § 2119(3). 1 He asserts for the first time on appeal that the district court

erred by accepting his guilty plea because he did not cause a death resulting from

a carjacking, therefore not satisfying the factual predicate necessary for the final

element of 18 U.S.C. § 2119(3). In his view, the specific intent to cause death in

the statute’s prefatory paragraph is satisfied only if the defendant specifically

intended to cause a death while carjacking and that intended death occurred.

1
The statute provides:

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 (as defined in section
1365 of this title, including any conduct that, if the
conduct occurred in the special maritime and
territorial jurisdiction of the United States, would
violate section 2241 or 2242 of this title) 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 (emphasis added).

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 Because this argument was not made in district court and was thus

forfeited, we review it for plain error. 2 See In re Rumsey Land Co., LLC, 944

F.3d 1259, 1271 (10th Cir. 2019). To satisfy this standard, Lowell “must show

(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Stender v. Archstone-Smith Operating Tr., 958 F.3d 938, 948 (10th

Cir. 2020) (internal quotation marks omitted).

Our analysis begins and ends with the first requirement of the plain error

standard because we conclude the district court did not err by accepting Lowell’s

guilty plea. The “death results” element of 18 U.S.C. § 2119(3) requires but-for

causation. But-for causation is “[t]he cause without which the event could not

have occurred.” Black’s Law Dictionary (11th ed. 2019). The Supreme Court has

explained that “it is one of the traditional background principles against which

Congress legislates that a phrase such as ‘results from’ imposes a requirement of

but-for causation.” Burrage v. United States, 571 U.S. 204, 214 (2014) (internal

quotations omitted; alterations incorporated). Thus, “[w]here there is no textual

or contextual indication to the contrary, courts regularly read phrases like ‘results

from’ to require but-for causality.” Id. at 212.

2
The government argues that Lowell waived, not forfeited, this argument.
But we need not reach this issue because we conclude the district court did not
plainly err by accepting Lowell’s guilty plea.

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 Lowell urges that the text of 18 U.S.C. § 2119 points to the

contrary—namely, the prefatory paragraph. He argues that “[t]he most natural

reading of § 2119 is that the scope of the resultant harm must be understood in the

context of the preceding conditional intent element and its contemplated harms.”

Aplt. Br. at 14 (emphasis original). Thus, Lowell contends the death must occur

during the “taking” of the carjacked vehicle; a subsequent death down the road

does not qualify. Lowell points to the scope-of-subparts canon of statutory

interpretation. This canon holds that “[m]aterial contained in unindented text

relates to all the following . . . indented subparts.” A. Scalia & B. Garner,

Reading Law: The Interpretation of Legal Texts 156 (2012). Applied here, the

material contained in § 2119’s prefatory paragraph (unindented text) relates to

§ 2119(3) (an indented subpart).

But relation is different than rewriting a statute, which is exactly what

Lowell’s proposed reading does. Lowell contends that a carjacker must

specifically intend to cause death or serious bodily injury while in the act of

carjacking, and the carjacker is only subject to the statute’s enhanced penalty

provisions if his specific intent is realized by killing or seriously injuring the

person he intended to kill or seriously injure while in the act of carjacking. Said

another way, Lowell argues that the specific intent required by the statute’s

prefatory paragraph covers the subparts. He therefore implies that only death or

serious injuries connected to the immediate taking are covered by the statute.

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And because he did not intend to cause the motorcyclist’s death when he

carjacked the 4Runner, Lowell asserts he is only guilty of § 2119(1), not

§ 2119(3). But Congress wrote “death results,” not “the intended death results.”

To adopt Lowell’s interpretation, then, would rewrite the statute.

We analyzed similar statutory language in United States v. Burkholder, 816

F.3d 607 (10th Cir. 2016). There, we considered whether the causation required

by the phrase “death . . . results from” in 21 U.S.C. § 841(b)(1)(E)(i) was but-for

or proximate causation. 3 Id. at 614. We first examined the language of the

statute, concluding that “the causal language that Congress employed itself

strongly suggests that § 841(b)(1)(E)(i) requires only but-for causation.” Id. at

614. We noted that “[g]enerally . . . the ordinary meaning of ‘results from’

imposes a requirement of actual or but-for causation, and not proximate

causation.” Id. (internal quotations omitted; alteration incorporated). We

continued that “the use of the passive voice evinces a concern with whether

something happened—not how or why it happened.” Id. (internal quotations

omitted). Finally, we observed that although Congress knows how to use

proximate causation language in statutes, it did not do so in § 841(b)(1)(E)(i),

“suggest[ing] that Congress intended to omit a proximate-cause requirement[.]”

3
Section 841(b)(1)(E)(i) “establishes a statutory-maximum sentence of
fifteen years’ imprisonment for the distribution of a Schedule III controlled
substance if ‘death . . . results from the use of’ that substance[.]” Burkholder,
816 F.3d at 611.

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Id. at 615–16. We thus concluded that “the plain language and statutory context

of the ‘results from’ language in § 841(b)(1)(E) reveal a clear Congressional

choice to forgo a proximate-cause requirement.” Id. at 621. Accordingly,

“§ 841(b)(1)(E)(i)’s provision that ‘death . . . results from’ . . . requires only

proof of but-for causation.” Id.

The same “death results” language we analyzed in Burkholder is at issue

here. Lowell argues that Burkholder’s consideration of 21 U.S.C.

§ 841(b)(1)(E)(i) does not offer a “meaningful interpretive analogy” because,

unlike 18 U.S.C. § 2119, 21 U.S.C. § 841(b)(1)(E)(i) lacks “conditional intent

prefacing the resulting harms[.]” Aplt. Br. at 15. That may be so, but Burkholder

nonetheless provides an understanding of “death results” language, which clearly

connotes a but-for rather than proximate causation standard. And just as we

recognized in Burkholder that Congress knows how to use proximate causation

language and yet did not, suggesting it intended to omit it, Congress also knows

how to use specific intent language, yet it left § 2119(3)’s “death results” element

unadorned, suggesting Congress intended but-for causation. See Burrage, 571

U.S. at 211 (explaining that the “results from” language in 21 U.S.C. § 841

“imposes . . . a requirement of actual causality,” proof “that the harm would not

have occurred in the absence of—that is, but for—the defendant’s conduct”).

Turning back to 18 U.S.C. § 2119, if a defendant (1) carjacks or attempts to

carjack, (2) a vehicle that has an interstate commerce connection, (3) with the

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intent to cause death or serious bodily injury or harm, then the defendant

committed the crime of carjacking under § 2119 and will therefore be subject to

punishment based on whether no harm resulted (§ 2119(1)), serious bodily injury

resulted (§ 2119(2)), or death resulted (§ 2119(3)). The specific intent required in

§ 2119’s prefatory paragraph is not tied to the punishment subsections; in fact, it

is clearly tied to the act of carjacking in the prefatory paragraph. So, if elements

(1) through (3) are satisfied, and the carjacking is the but-for cause of a death, see

Burrage, 571 U.S. at 214, irrespective of the defendant’s intent in causing that

death, the defendant is subject to the penalties of § 2119(3).

Applying that logic here, the government offered a factual basis for

Lowell’s guilty plea because the evidence showed Lowell’s carjacking was the

but-for cause of the motorcyclist’s death. The government stated to the district

court:

The United States would present evidence from both – the
doctor who saw [the motorcyclist] at the hospital
immediately after impact; that he died of blunt-force
trauma. The United States would also present evidence
from a doctor who did an autopsy of [the motorcyclist]
confirming that fact. Had [the motorcyclist] not been hit at
such a high rate of speed from [Lowell], he would not have
died.

R., Vol. III at 32. Because there was a factual basis for Lowell’s guilty plea, the

district court did not err by accepting Lowell’s guilty plea and convicting him of

violating 18 U.S.C. § 2119(3).

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 We therefore affirm Lowell’s conviction.

B. Lowell’s Sentence

Lowell also challenges his sentence on the ground that the district court

incorrectly calculated his guidelines range. He asserts the district court

improperly applied the cross reference to the first-degree murder guideline

contained in USSG § 2B3.1(c) to his crime of carjacking, and even if this was not

error, Lowell further asserts that the cross reference is inapplicable to him

because the motorcyclist’s death was not “in the perpetration of” the carjacking as

required to constitute felony murder. We disagree and thus affirm Lowell’s

sentence.

1. Application of Cross Reference to Carjacking

The Guidelines treat carjacking as a subset of robbery in USSG § 2B3.1. 4

Although the base offense level for carjacking is typically 22, § 2B3.1(c) explains

that “[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, apply § 2A1.1 (First Degree Murder).”

The first-degree murder guideline requires a base offense level of 43 and a

sentence of life imprisonment. See USSG § 2A1.1. The application notes explain

4
The PSR used the 2018 version of the Guidelines, although the 2016
version was appropriate. This does not affect our analysis, however, because the
relevant guidelines are identical in the 2016 and 2018 Guidelines.

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that “[t]his guideline applies in cases of premeditated killing,” or “when death

results from the commission of certain felonies.” Id., comment (n.1).

The cross reference to the first-degree murder guideline contained in USSG

§ 2B3.1(c) is applicable only if a carjacking death would constitute felony murder

under 18 U.S.C. § 1111. Section 1111(a) defines “murder” as “the unlawful

killing of a human being with malice aforethought.” It further defines “murder in

the first degree” as “[e]very murder . . . committed in the perpetration of, or

attempt to perpetrate, any . . . robbery[.]” Id.

The district court applied the cross reference to the first-degree murder

guideline because it determined a carjacking death constituted felony murder

under 18 U.S.C. § 1111. This conclusion necessarily rested on the district court’s

view that “robbery” referenced in § 1111 encompasses carjacking. Lowell did not

object below to the application of the cross reference and first-degree murder

guideline, so we review his challenge for plain error. See In re Rumsey, 944 F.3d

at 1271.

Lowell argues that the district court’s application of the cross reference and

first-degree murder guideline constituted error because the plain terms of § 1111

do not include “carjacking.” And although Lowell recognizes that carjacking is a

type of robbery—an offense specifically enumerated in § 1111—he explains that

carjacking is nevertheless its own separate offense with elements and penalties

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distinct from robbery. Accordingly, its omission from § 1111 means carjacking is

not felony murder.

Lowell further notes that when § 1111 was codified, carjacking was not yet

a federal crime. Since it became a federal crime in the 1990s, however, Congress

has not added it to the enumerated offenses in § 1111, even though Congress

amended § 1111 twice in the meantime. Lowell thus urges that Congress’s failure

to amend § 1111 following the enactment of the federal carjacking statute

suggests that carjacking is excluded from § 1111.

We disagree with Lowell that carjacking may not be an underlying felony

to support felony murder. Carjacking is a species of robbery. See Jones v. United

States, 526 U.S. 227, 235 (1999) (noting “carjacking is a type of robbery”);

Holloway v. United States, 526 U.S. 1, 8 (1999) (“The carjacking statute

essentially is aimed at providing a federal penalty for a particular type of

robbery.”). Congress recognized as much when it placed the carjacking statute in

the robbery and burglary chapter of Title 18, Chapter 103 of the United States

Code. And although when 18 U.S.C. § 1111 was originally adopted, “robbery”

could not have included the yet-to-be-created federal crime of carjacking, that

does not foreclose its inclusion post-enactment. Indeed, there was no reason for

Congress to amend § 1111 to add carjacking because “robbery” already included

it.

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 Lowell is correct that robbery and carjacking have distinct elements. But

this is of no moment. Section 1111 lists categories of crimes that encompass

multiple offenses with distinct elements. We recognized this principle in United

States v. Nichols, 169 F.3d 1255 (10th Cir. 1999). There, we rejected the

defendant’s argument that the offense of using an explosive weapon of mass

destruction did not constitute felony murder per 18 U.S.C. § 1111 because it was

unenumerated. Id. at 1273. Instead, we determined the crime was “functionally

equivalent to the ‘arson’ listed in 18 U.S.C. § 1111(a).” Id. We found this

functional equivalency even though the elements of arson and the elements of use

of an explosive weapon of mass destruction are distinct. Compare 18 U.S.C. § 81

(“Whoever . . . willfully and maliciously sets fire to or burns any building,

structure or vessel, any machinery or building materials or supplies, military or

naval stores, munitions of war, or any structural aids or appliances for navigation

or shipping, or attempts or conspires to do such an act, shall be [punished].”) with

18 U.S.C. § 2332(a) (1994) (“A person who, without lawful authority, uses . . . or

conspires to use . . . a weapon of mass destruction . . . against any person or

property within the United States, and . . . [interstate commerce element] shall be

[punished].”). Thus, as used in § 1111, arson is a category of crime that the

offense of using an explosive weapon of mass destruction falls within. So too is

robbery a category of crime that the offense of carjacking falls within. See, e.g.,

United States v. Rodriguez-Adorno, 695 F.3d 32, 43 (1st Cir. 2012) (applying the

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first-degree murder cross reference to carjacking as a type of robbery); United

States v. Hicks, 103 F.3d 837, 848–49 (9th Cir. 1996), overruled on other grounds

by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en banc) (same).

“Robbery” within the meaning of 18 U.S.C. § 1111 encompasses

carjacking. As a result, application of the cross reference to the first-degree

murder guideline contained in USSG § 2B3.1(c) to Lowell’s crime of carjacking

was not error, so long as the motorcyclist’s death was “in the perpetration of” the

carjacking.

2. “In the Perpetration of” the Carjacking

A carjacking constitutes felony murder under 18 U.S.C. § 1111 only if the

relevant death was “in the perpetration of” the carjacking. The district court

found that the motorcyclist’s death was in the perpetration of the carjacking.

Lowell argues that the motorcyclist’s death was in the perpetration of flight, not

the carjacking, because he had reached a point of temporary safety between the

carjacking and the death.

We agree with the district court and Lowell that at some point the scope of

a carjacking can be terminated if a defendant reaches a point of temporary safety.

This makes sense, as this inquiry is also relevant to robbery law, where multiple

distinct robberies can be committed by a single defendant, and carjacking is a

species of robbery. See United States v. Patton, 927 F.3d 1087, 1100 (10th Cir.

2019) (“Reaching a place of temporary safety is . . . relevant to robbery law.”).

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Considerations relevant to whether a defendant reached a point of temporary

safety include law enforcement’s actions, the defendant’s actions, the defendant’s

state of mind, the elapsed time between the carjacking and the murder, and

whether the defendant had unchallenged possession of the carjacked vehicle.

The application of this standard to the facts is a mixed question of fact and

law that we review “under the clearly erroneous or de novo standard, depending

on whether the mixed question involves primarily a factual inquiry or the

consideration of legal principles.” Id. at 1101 (internal quotations omitted;

alterations incorporated). Here, the facts are not in dispute, so we review whether

the district court properly applied the facts to the legal standard de novo.

Lowell did not reach a point of temporary safety so as to terminate the

scope of the carjacking. After carjacking the 4Runner, Lowell and his girlfriend

actively evaded police for two and a half hours. During that time, four law

enforcement agencies actively worked to apprehend him. They used a helicopter

to survey the area, prepared to close intersections and use spike strips to disable

the 4Runner, tracked data from the 4Runner driver’s phone left in the vehicle, and

responded to 911 calls from motorists who reported an erratic driver. Lowell

stopped at Walmart to steal spark plugs to continue fleeing from law enforcement,

planned to steal another vehicle, and did drugs. Although Lowell had

unchallenged possession of the 4Runner for two and a half hours and his location

was unknown to police, law enforcement’s pursuit and Lowell’s flight were both

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ongoing. Both Lowell and his girlfriend believed they were still being actively

pursued. Because Lowell did not reach a point of temporary safety between the

carjacking and the motorcyclist’s death, the death was “in the perpetration of” the

carjacking and thus constitutes felony murder under 18 U.S.C. § 1111. 5

The district court therefore properly applied the USSG § 2B3.1(c) cross

reference to Lowell.

III. Conclusion

In light of the above, we AFFIRM the district court.

5
Whether a defendant reached a point of temporary safety is a highly fact-
intensive inquiry that must be assessed on a case-by-case basis. Although we
conclude these facts do not warrant a finding that Lowell reached a point of
temporary safety, we might reach a different conclusion based on other facts. As
the First Circuit put it: “If the carjacking is so successful that the defendant
completely evades capture and simply retains the vehicle for his own use, it
cannot be the case that any subsequent traffic accident, after any interval of time
whatsoever, is part of the carjacking.” United States v. Martinez-Bermudez, 387
F.3d 98, 102 n.6 (1st Cir. 2004).

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