United States v. García-Ortiz

• Decision Date: 17 September 2018
• Docket Number: No. 16-1405,16-1405
• Citation: 904 F.3d 102
• Parties: UNITED STATES of America, Appellee, v. José A. GARCÍA-ORTIZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

904 F.3d 102

UNITED STATES of America, Appellee,

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

No. 16-1405

United States Court of Appeals, First Circuit.

September 17, 2018

Rachel Brill, San Juan, PR, for appellant.

John P. Taddei, with whom Margaret A. Upshaw, Washington, DC, Attorney, United States Department of Justice, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.

Before Thompson, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

In his fourth time before our court, defendant-appellant José García–Ortiz ("García") asks us to vacate one of his convictions stemming from an armed robbery committed in Puerto Rico in the year 2000. He argues that his conviction for felony murder under 18 U.S.C. § 924(j) must be vacated because armed robbery committed in violation of the Hobbs Act, 18 U.S.C. § 1951, does not qualify as a "crime of violence" under 18 U.S.C. § 924(c). He also disputes the imposition of a restitution order and raises other issues outside the scope of this court's limited remand in United States v. García-Ortiz, 792 F.3d 184, 186 (1st Cir. 2015) (" García III"). For the following reasons, we affirm García's conviction and sentence.

I.

As we detailed in United States v. García-Ortiz, 528 F.3d 74 (1st Cir. 2008) (" García I"), García participated in the armed robbery of a grocery store manager and his security guard escort as they were delivering around $63,000 in cash to a bank. Id. at 77. During an exchange of gunfire in the course of the robbery, the security guard shot and killed one of García's collaborators. Id. In 2004, a jury convicted García of aiding and abetting a Hobbs Act robbery (count one),¹ aiding and abetting the use or carrying of a firearm during and in relation to a crime of violence (count two),² and aiding and abetting felony murder in the course of using or carrying a firearm in relation to a crime of violence (count three).³ Id. at 78-79.

In García I, we remanded the case back to the district court so that it could modify an erroneous life sentence imposed for count one, for which the statutory maximum was twenty years. Id. at 85. After resentencing, García appealed again. We then reversed on double jeopardy grounds the conviction on count two (aiding and abetting the use or carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) ) because that count was a lesser included part of count three. United States v. García-Ortiz, 657 F.3d 25, 28–29 (1st Cir. 2011) (" García II"). In García's subsequent resentencing, the district court imposed, for the first time, a restitution order. García appealed again, challenging among other things the imposition of the restitution order. García III, 792 F.3d at 188–94. We affirmed García's convictions and sentences on the remaining counts (one and three). We nevertheless ordered a limited remand of "only the restitution portion of his sentence" because the district court had mistakenly "continued" a restitution order that it had neglected to impose in the first instance. Id. at 186, 192. On remand following Garcia III, the district court formally imposed a restitution order for $30,000, a reduction from the initial order of $60,000.

At present, García stands convicted of aiding and abetting a robbery committed in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (count one) and aiding and abetting felony murder in the course of using or carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(j) (count three). His current sentence consists of 36 months' imprisonment for count one to run consecutively with a 216-month term for count three, plus $30,000 in restitution.

García raises several issues in this most recent appeal. Claiming a change in controlling law since we decided his third appeal, he first urges us to find unconstitutionally vague the so-called "residual clause" of 18 U.S.C. § 924(c)(3)(B). That clause treats as a "crime of violence" any felony offense "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." García reasons that because section 924(c)'s residual clause is unconstitutional, and because his Hobbs Act robbery conviction does not alternatively qualify as a "crime of violence" under 18 U.S.C. § 924(c)(3)(A)'s so-called "force clause," his felony murder conviction, which relies on section 924(c)'s definition of "crime of violence," must be vacated. Second, García argues that the district court impermissibly imposed the restitution order to punish him for his success on appeal. Finally, in an effort to resuscitate and reconstitute arguments from previous appeals, García also argues that the district court should have considered an amendment to the United States Sentencing Guidelines (the "Guidelines") when considering whether to apply a mitigating role adjustment, and should not have imposed the terms of imprisonment consecutively for counts one and three. For the following reasons, we reject each of these arguments and affirm García's convictions and sentence.

II.

A.

García's conviction for felony murder rests on the proposition that his offense that led to a death—armed robbery in violation of the Hobbs Act—is a "crime of violence" under section 924(c). At the time of García's conviction, there was apparently little reason to doubt that such an offense satisfied the definition of a crime of violence contained in the residual clause of section 924(c), as García raised no objection in this vein in any of his prior appeals. García now points to two subsequent decisions of the United States Supreme Court, Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II") and Sessions v. Dimaya, ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), which García claims compel the conclusion that section 924(c)'s residual clause is unconstitutionally vague.

We usually do not entertain on a subsequent appeal issues that exceed the scope of our remand mandate. See United States v. Wallace, 573 F.3d 82, 88 (1st Cir. 2009). Nevertheless, we recognize an exception when the controlling law materially changes after the case is remanded. Id. at 89. We will assume that Dimaya and Johnson II brought about such a change.

Overcoming the limited scope of our remand mandate still leaves García with another procedural hurdle: His failure to timely raise before the district court his argument that Hobbs Act robbery does not qualify under the residual clause of section 924(c)(3) would normally constitute a forfeiture, limiting us to plain error review. In similar circumstances, however, we recently overlooked such a forfeiture where, as here, a defendant failed to anticipate the Supreme Court overruling itself on a constitutional principle. See Lassend v. United States, 898 F.3d 115, 122 (1st Cir. 2018) (noting that Johnson II"expressly overruled" two prior Supreme Court cases "in relation to the [Armed Career Criminal Act]").

Turning to the merits, we find that any possible infirmity of section 924(c)'s residual clause provides García with no exculpation because his Hobbs Act robbery still qualifies as a crime of violence under the force clause of section 924(c). Our reasoning for finding the force clause satisfied follows.

The parties agree that García's conviction concerned Hobbs Act robbery (not extortion). So, our task at the outset is to compare the statutory language describing the elements of Hobbs Act robbery to the definition of a "crime of violence" in the force clause, section 924(c)(3)(A). See United States v. Faust, 853 F.3d 39, 50–51 (1st Cir.), reh'g denied, 869 F.3d 11 (1st Cir. 2017) (describing this categorical approach). The relevant Hobbs Act language states:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall [be fined or imprisoned.]

18 U.S.C. § 1951(a). The term "robbery" means:

[T]he unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

Id. § 1951(b)(1) (emphasis added). The force clause, in turn, defines a "crime of violence" as "an offense that is a felony and ... has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. § 924(c)(3)(A).

It would seem that the "actual or threatened force, or violence, or fear of injury" required as an element of the robbery offense satisfies the "use, attempted use, or threatened use of physical force" element of the definition of a crime of violence as long as we construe robbery's "force, or violence, or fear of injury" as requiring the use or threat of "physical force." García advocates against such a construction. He points out that the required "physical force" need be "violent force," Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson I ). As an example of a robbery without such force, he posits that a person can commit Hobbs Act robbery by threatening to "devalue some intangible economic interest like a stock holding or contract right." This, however, sounds to us like Hobbs Act extortion.⁴ García points to no actual convictions for Hobbs Act robbery matching or approximating his theorized scenario. And the Supreme Court has counseled that we need not consider a theorized scenario...