United States v. Solís-Vásquez

• Citation: 10 F.4th 59
• Decision Date: 20 August 2021
• Docket Number: Nos. 19-1027,19-1745,s. 19-1027
• Parties: UNITED STATES, Appellee, v. Luis SOLÍS-VÁSQUEZ, a/k/a Brujo, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

10 F.4th 59

UNITED STATES, Appellee,

v.Luis SOLÍS-VÁSQUEZ, a/k/a Brujo, Defendant, Appellant.

Nos. 19-1027

19-1745

United States Court of Appeals, First Circuit.

August 20, 2021

Ian Gold for appellant Luis Solís-Vásquez, a/k/a Brujo.

Sonja M. Ralston, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Andrew E. Lelling, United States Attorney, Donald C. Lockhart, Assistant United States Attorney, Brian C. Rabbitt, Acting Assistant Attorney General, and Robert A. Zink, Acting Deputy Assistant Attorney General, were on brief, for appellee.

Before Lynch, Lipez, and Barron Circuit Judges.

LYNCH, Circuit Judge.

This case raises as a matter of first impression whether a conviction for aggravated Racketeer Influenced and Corrupt Organization Act ("RICO") conspiracy based on Massachusetts second-degree murder is properly considered a "crime of violence" under the Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. § 3663A, when the jury makes a special finding that a defendant has committed murder as part of that conspiracy. We conclude that it is not necessary to reach this question because the defendant has not met his burden of showing any plain error.

In 2016, the government indicted Luis Solís-Vásquez, a/k/a "Brujo," and sixty others on RICO conspiracy charges for their involvement in the "Mara Salvatrucha" gang, commonly known as "MS-13." Solís-Vásquez was tried and convicted alongside two codefendants, Hector Enamorado, a/k/a "Vida Loca," and Noe Salvador Pérez-Vásquez, a/k/a "Crazy." The three appealed their convictions and sentences on various grounds, and we addressed the bulk of their claims of error in United States v. Pérez-Vásquez, No. 18-1867, 6 F.4th 180 (1st Cir. July 26, 2021). This opinion addresses only Solís-Vásquez's challenge to the district court's restitution order.

I. Background

We discuss the facts relevant to the restitution order and refer to our companion opinion, Pérez-Vásquez, 6 F.4th 180 to describe the background of the case.

At the time of the events in this case, Solís-Vásquez was a member of MS-13. MS-13's mission is to kill rival gang members, and one of MS-13's "rules" is that members should kill rival gang members on sight if they have the opportunity to do so. They are also required to help fellow MS-13 members to do so when asked.

In the early morning of December 14, 2014, at an apartment in Chelsea, Enamorado ran into several rival gang members who had assaulted him the night before. He called Pérez-Vásquez and asked him to bring a gang-owned gun to the apartment because he was going to kill the rival gang members. Pérez-Vásquez told Solís-Vásquez about this request and said he would bring the gun to Enamorado. Solís-Vásquez decided to go with Pérez-Vásquez to meet Enamorado and brought a second gun.

When they arrived at the apartment, Enamorado took the first gun from Pérez-Vásquez and told Solís-Vásquez to wait at the door with the second gun so no one could leave. Solís-Vásquez waited for a few minutes, then went to smoke a cigarette on the porch. Moments later, Enamorado shot and killed one of the rival gang members, Javier Ortiz. Enamorado then shot Saul Rivera, who witnessed the shooting of Ortiz, in the chest. Rivera survived and sustained losses of $32,984.03 in medical expenses and lost wages. F0F Solís-Vásquez does not dispute the loss amount.

II. Procedural History

Solís-Vásquez was tried alongside Enamorado and Pérez-Vásquez. A jury convicted Solís-Vásquez and his codefendants of RICO conspiracy, with a special finding that each was guilty as part of the RICO conspiracy of second-degree murder of Ortiz. The jury made no special findings with respect to the shooting of Rivera.

On July 11, 2019, the district court conducted a restitution hearing and ordered the defendants to pay restitution to Rivera. Solís-Vásquez argued that he should not be made to pay restitution because he was a "nonparticipant" in the Rivera shooting, and that the shooting was "outside the scope of the agreement to kill Javier Ortiz." In the alternative, he argued that he should pay a lesser amount than his codefendants because of his lesser role in the offense.

The district court determined that restitution was mandatory under the MVRA because the RICO conspiracy was a "crime of violence with an identifiable victim, Saul Rivera, who suffered a physical injury." See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(i). Enamorado and Pérez-Vásquez were ordered to pay the full amount. Solís-Vásquez was ordered to pay half the loss amount, $16,492.01, on account of his lesser role in the offense.

III. Analysis

The MVRA requires the district court to order restitution where the defendant is found guilty of a "crime of violence, as defined in section 16 [of Title 18] ... in which an identifiable victim or victims has suffered a physical injury or pecuniary loss." 18 U.S.C. § 3663A(c)(1). Section 16 defines a crime of violence as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a).1F1F¹

The MVRA defines a "victim" as "a person directly and proximately harmed as a result of the commission of an offense ... including ... any person directly harmed by the defendant's criminal conduct in the course of [a] scheme, conspiracy, or pattern." 18 U.S.C. § 3663A(a)(2). In United States v. Collins, we read this language to mean that "each conspirator may be ordered to pay restitution for all the reasonably foreseeable losses caused by any conspirator in the course of the conspiracy."² 209 F.3d 1, 3 (1st Cir. 1999).

Solís-Vásquez makes three arguments that the district court erred in requiring him to pay restitution for the shooting of Saul Rivera under the MVRA. As to preserved issues, "[w]e review factual findings underlying a restitution order for clear error and legal conclusions de novo." United States v. Chin, 965 F.3d 41, 59 (1st Cir. 2020). "The final order is reviewed for abuse of discretion." Id.

Solís-Vásquez renews his argument on appeal that Rivera was not a "victim" under the terms of the MVRA because he was not "directly" harmed by Solís-Vásquez's criminal conduct. See 18 U.S.C. § 3663A(a)(2). In making this argument, Solís-Vásquez asks us to overturn our holding in Collins, and hold instead that the MVRA's definition of "victim" does not include those injured by a defendant's coconspirators. The argument fails. Under the "law of the circuit doctrine" we are bound by our decision in Collins. United States v. Lewis, 963 F.3d 16, 23 (1st Cir. 2020). And to the extent that this argument rests on Solís-Vásquez's claim that he was just a bystander rather than a participant in the crime, the jury said that was not the case.

Solís-Vásquez next argues that he cannot be held accountable for Rivera's injuries because Enamorado's shooting of Rivera was not within the scope of the conspiracy. This argument misunderstands what the issue is. The issue is not whether the shooting of Rivera was an aim of the conspiracy but whether the harm to Rivera was "reasonably foreseeable ... in the course of the conspiracy." Collins, 209 F.3d at 3. The shooting of Rivera in the apartment when he was a witness to the murder in an armed conflict between rival gangs was certainly reasonably foreseeable. There was no clear error.

Solís-Vásquez's next argument is that RICO conspiracy is not a crime of violence under the MVRA. But that is not the issue before us. Our issue is whether restitution is mandatory under the MVRA when a defendant is convicted of participating in aggravated RICO conspiracy and there is a jury finding of second-degree murder under Massachusetts law.

Because Solís-Vásquez did not raise this objection in the district court, we review only for plain error. United States v. Flete-Garcia, 925 F.3d 17, 37 (1st Cir. 2019). To prevail, Solís-Vásquez must show "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Mercado, 777 F.3d 532, 536 (1st Cir. 2015) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001) ).

Restitution is mandatory under the MVRA where the defendant was convicted of a crime that includes as an element that the defendant used, attempted to use, or threatened to use physical force against another. 18 U.S.C. §§ 16(a), 3663A(c)(1)(A)(i) ; see also Sessions, 138 S. Ct. at 1211. The so-called "categorical approach" requires an assessment of the "elements of the statute of conviction" rather than the "facts of each defendant's conduct." United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014) (quoting Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). That assessment compels us to "compare the elements of the crime for which the defendant was previously convicted with Congress's definition of the type of crime that may serve as a predicate offense." Id. Thus, the critical inquiry is whether the "most innocent conduct" criminalized by the statute under which the defendant was convicted qualifies as a crime of violence under the categorical approach. Id. (quoting Karimi v. Holder, 715 F.3d 561, 567 (4th Cir. 2013) ).

"If the statute under which the defendant was previously convicted is divisible, meaning ‘it comprises multiple, alternative versions of a crime not all of which qualify [as a crime of violence],’ courts apply a ‘modified’ categorical approach." United States v. Delgado-Sánchez, 849 F.3d 1, 7-8 (1st Cir. 2017) (quoting United States v. Castro-Vásquez, 802 F.3d 28, 35 (1st Cir. 2015) ). "Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Mathis v. United States,...