United States v. García-Ortiz

• Citation: 792 F.3d 184
• Decision Date: 06 July 2015
• Docket Number: No. 13–1632.,13–1632.
• Parties: UNITED STATES of America, Appellee, v. José A. GARCÍA–ORTIZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

792 F.3d 184

UNITED STATES of America, Appellee

v.José A. GARCÍA–ORTIZ, Defendant, Appellant.

No. 13–1632.

United States Court of Appeals, First Circuit.

July 6, 2015.

H. Manuel Hernández, with whom H. Manuel Hernández, P.A., was on brief for Appellant.

Susan Z. Jorgensen, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa–Martínez, Assistant United States Attorney, were on brief for Appellee.

Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

His third time before us, Defendant–Appellant José García–Ortiz (“García”) asks us to vacate his 2004 robbery conviction, arguing that the government did not present enough evidence at his jury trial to sustain it. He also argues that the district judge erred at his sentencing by failing to consider certain of his mitigating arguments, by ordering his sentences be served consecutively instead of concurrently, and by improperly imposing $60,000 in restitution.

Seeing error only in the district court's restitution order, we affirm García's conviction, and vacate and remand only the restitution portion of his sentence.

BACKGROUND

As this is García's third appeal, we will not repeat another detailed recitation of the facts. But here's our mise-en-scène.¹

In 2001, a food warehouse manager and his security escort were walking to the manager's car with a bag of cash, which they planned to deposit at the bank. Two men ran toward them. One of the men grabbed the guard, and after a struggle, gunshots were fired. The guard, who was apparently armed, returned fire and shot and killed one of the ill-fated bandits.

After the mêlée, the manager heard voices from the nearby-parked getaway car yelling “kill him.” One of the robbers grabbed the bag of cash while the manager lay on the ground, beseeching mercy. The manager heard two more shots (presumably from the robbers because the wounded

guard had already emptied his chamber), but fortunately neither the manager nor guard were killed. The getaway car sped away, and the assailants made off with $60,000.

Forensics later showed that three guns were fired during the robbery, one belonging to the guard. The getaway car, which had been reported stolen about a month before the robbery, was recovered nearby the scene, donning a bullet hole in one of the side windows. The rear window was also completely broken out and shell casings lay about, the backseat blood-stained.

Law enforcement naturally started investigating. Police suspected García was involved in the robbery after they discovered a photo of him with the deceased robber at a mechanic shop that had been under police surveillance.

The FBI brought García (and other suspects) in to collect their DNA samples. García also consented to a body search, during which the FBI found what appeared to be a bullet wound

on his body with metallic residue. Another piece of damning evidence, the FBI lab confirmed that García's DNA was in the backseat of the abandoned escape ride, prompting the FBI to exclude the other suspects.

García was indicted on charges of intentional obstruction of commerce by robbery under the Hobbs Act, 18 U.S.C. §§ 2 and 1951(a) (Count One);² unlawfully carrying and using a firearm during a crime of violence under 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count Two);³ and felony murder under 18 U.S.C. §§ 2 and 924(j) (Count Three).⁴

After a 14–day trial, in August 2004 a jury convicted García on all three counts. At sentencing, the district judge handed down two concurrent life-imprisonment sentences on Counts One and Three, and a ten-year consecutive prison sentence on Count Two. García appealed both the conviction and sentences.

In 2008, we affirmed the conviction but vacated the sentence as to Count One because the district judge impermissibly sentenced García to life, even though the statutory maximum for that charge was 20 years. See United States v. García–Ortiz, 528 F.3d 74, 84–85 (1st Cir.2008) (“García I ”). We remanded to the district court for re-sentencing on that count. Id. at 85.

On remand, the district judge sentenced García to 50 months on Count One, to be served concurrently with a 240–month sentence on Count Three. See United States v. García–Ortiz, 657 F.3d 25, 27–28 (1st Cir.2011)(“ García II ”). The judge also gave García an additional (consecutive) five years on Count Two. See id. at 27.

García appealed again, primarily arguing his conviction and sentence on Count Two violated his double jeopardy rights because that crime (unlawfully carrying a firearm during a crime of violence) was a lesser included offense of the murder charge. See id. at 28. We agreed. The crux of our decision was the Supreme Court's admonition that “without a clear indication that Congress intended cumulative punishments for the same offense under two different statutes, courts must presume that Congress authorized only one punishment.” Id. at 29 (citing Whalen v. United States, 445 U.S. 684, 691–92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ). And, as we discussed in García II, unlawfully carrying a firearm was an element of felony murder under § 924(j) ; the latter “requires proof of [only] one additional fact: the death.” García II, 657 F.3d at 28. Thus, we vacated García's conviction and sentence on Count Two, and affirmed the convictions on Counts One and Three. Id. at 31. But we remanded for re-sentencing on those counts, in case the district judge wanted to “unbundle and reconstitute the sentencing package.” Id.

In April 2013, the district court again re-sentenced García, this time to 36 months on Count One and 240 months on Count Three, to be served consecutively. That made for a grand total of 23 years (two years fewer than the previous sentence). The court also ordered García to pay $60,000 in restitution to the food warehouse.

García now appeals for a third time. First, he says his armed robbery conviction—and, as a result, the felony murder conviction premised on the robbery—should not stand because the evidence at his trial established only that he was present at the scene of the robbery. Second, he argues the district judge erred (again) at sentencing by failing to properly consider the sentences of defendants in similar cases. Third, García contends, the judge mistakenly ordered restitution. Finally, he argues (in a brief he filed on his own, after his counselled brief was filed) that the district court erroneously ordered that he serve the sentences for Count One and Count Three consecutively, when he should only have to serve them concurrently.⁵

We find that only García's restitution argument bears any teeth. We address each grievance in turn.

DISCUSSION

The Convictions

García has it right that if his robbery conviction was premised on his role as an aider and abettor, his “mere association with the principal, or mere presence at the scene of a crime, even when combined with knowledge that a crime will be committed, is not sufficient to establish ... liability.” United States v. Medina–Román, 376 F.3d 1, 4 (1st Cir.2004) (citation and alterations omitted). Rather, “[i]n order to sustain a conviction for aiding and abetting the government must prove, in addition to the commission of the offense by the principal, that the defendant consciously shared the principal's knowledge of the underlying criminal act, and intended to help the principal.” United States v. Henderson, 320 F.3d 92, 109 (1st Cir.2003).

Recognizing that we have twice “rejected [his] arguments attacking the sufficiency of the evidence,” García nonetheless urges us to reassess whether the evidence presented at his trial was enough to convict him of armed robbery. According to García, the government only established his “mere presence” at the scene of the robbery—not his “knowledge and active participation” in the crime, as aiding and abetting law requires.

García's argument fails—yet again. Well established is that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Negrón–Almeda v. Santiago, 579 F.3d 45, 50 (1st Cir.2009) (citation omitted and quotations omitted). That is, “a legal decision made at one stage of a criminal ... proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court.” United States v. Moran, 393 F.3d 1, 7 (1st Cir.2004). “We review de novo whether the law of the case doctrine applies.” Negrón–Almeda, 579 F.3d at 50 (citation omitted).

In García I, we specifically rejected García's attacks on the sufficiency of the evidence. See García I, 528 F.3d at 83. García doesn't dispute that. Even still, he says, the law of the case doctrine should not apply here because exceptional circumstances call for a fresh look.

To be sure, the law allows us to “reopen a matter previously decided on a showing of exceptional circumstances-a threshold which, in turn, demands that the proponent accomplish one of three things: show that controlling legal authority has changed dramatically; proffer significant new evidence, not earlier obtainable in the exercise of due diligence; or convince the court that a blatant error in the prior decision will, if uncorrected, result in a serious injustice.” Negrón–Almeda, 579 F.3d at 51–52 (citation and quotations omitted). But in García II, we already found that García “made no showing of any such exceptional circumstance.” García II, 657 F.3d at 30. And on this go-round, we see no reason to doubt that decision.

García claims a recently-decided Supreme Court case clarifying the scienter (i.e., knowledge) requirement for aiding and abetting liability, Rosemond v. United States, ––– U.S. ––––, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), demands that García I came out the wrong way.⁶ See United States v. Holloway, 630 F.3d 252, 258 (1st Cir.2011) (noting th...