U.S. v. Gonzalez-Mercado

• Decision Date: 01 April 2005
• Docket Number: No. 03-2173.,03-2173.
• Citation: 402 F.3d 294
• Parties: UNITED STATES of America, Appellee, v. Germán GONZÁLEZ-MERCADO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

402 F.3d 294

UNITED STATES of America, Appellee, v. Germán GONZÁLEZ-MERCADO, Defendant, Appellant.

No. 03-2173.

United States Court of Appeals, First Circuit.

Heard March 8, 2005.

Decided April 1, 2005.

COPYRIGHT MATERIAL OMITTED

Rafael F. Castro Lang, for appellant.

Nelson Perez-Sosa, Assistant United States Attorney (Senior Appellate Attorney), with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon, Assistant United States Attorney (Chief, Criminal Division), were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

On March 3, 2003, defendant-appellant German Gonzalez-Mercado pleaded guilty to three counts of carjacking and two counts of aggravated carjacking (i.e., carjacking resulting in serious bodily injury). See 18 U.S.C. § 2119(1), (2). The district court sentenced him to a total of 600 months in prison. On appeal, Gonzalez-Mercado seeks to challenge the validity of his guilty pleas, the legal sufficiency of the evidence underpinning his conviction on one of the five counts, and his sentence. Concluding, as we do, that these assignments of error are meritless, we affirm the judgment below.

I. BACKGROUND

On January 30, 2002, a federal grand jury sitting in the District of Puerto Rico returned an indictment charging the appellant with three counts of aiding and abetting carjackings in violation of 18 U.S.C. §§ 2, 2119(1) and two counts of aiding and abetting aggravated carjackings in violation of 18 U.S.C. §§ 2, 2119(2). The indictment alleged that the appellant and his confederates had appropriated five motor vehicles. Specifically, count one charged that the appellant and Miguel Alamo Castro (Alamo) carjacked a Toyota Echo on December 31, 2001; count two charged that the appellant, Alamo, and Ismael Ortega Santana (Ortega) carjacked a Nissan Xterra on January 10, 2002; count three charged that the appellant and Alamo carjacked a Chevrolet Cavalier on January 14, 2002; count four charged that the appellant and Alamo carjacked a Nissan Pathfinder on the same date; and count five charged that the appellant and Ortega carjacked a Mitsubishi Montero on January 24, 2002. In two instances (counts one and three), the indictment further charged that the carjackings had resulted in serious bodily injury in violation of 18 U.S.C. § 2119(2).

The appellant initially maintained his innocence. He subsequently moved both to change his pleas and to dismiss count three insofar as it charged aggravated carjacking. In a memorandum accompanying the motion to dismiss, he argued that the incident giving rise to the "serious bodily injury" allegation — the rape of a woman known as G.K.L. — did not suffice to trigger liability for aggravated carjacking. The appellant's thesis ran as follows. The crime of carjacking requires, inter alia, the taking of a motor vehicle "from the person or presence of another by force and violence or by intimidation." 18 U.S.C. § 2119. If, however, "serious bodily injury ... results," the crime becomes aggravated carjacking, a separate and distinct offense punishable under the heightened penalty provisions contained in 18 U.S.C. § 2119(2). While the appellant concedes that rape qualifies as a serious bodily injury within the purview of section 2119(2), see United States v. Vazquez-Rivera, 135 F.3d 172, 174-75 (1st Cir.1998), he argues that the rape of G.K.L. was independent of, and thus did not "result" from, the taking of a motor vehicle.

The question of a change of plea was held in abeyance pending the disposition of the motion to dismiss. The parties stipulated to the facts underlying count three. We summarize them here.

On January 14, 2002, Alamo and the appellant, aiding and abetting one another, took a Chevrolet Cavalier from Gerald Morales by means of force and intimidation (including the brandishing of what appeared to be firearms). With Morales and Morales's passenger, Hector Berrios, in the vehicle and the appellant at the wheel, the carjackers drove to various ATM machines and forced Morales at gunpoint to withdraw cash from his account. When that source of funds had been exhausted, Morales, in response to the appellant's demands, indicated that he had keys to G.K.L.'s apartment and that the carjackers might be able to obtain more money there. Intrigued by this possibility, the carjackers drove to the apartment complex. Upon their arrival, they locked Berrios (whose hands had been tied with his own shoelaces) in the trunk of Morales's automobile. The appellant retained the car keys.

Morales escorted the carjackers into G.K.L.'s apartment. The men entered G.K.L.'s bedroom and awoke her, demanding money. She replied that she had no cash and did not possess an ATM card. At that point, Alamo and Morales receded into the living room, but the appellant remained behind and raped G.K.L. When the appellant emerged from the bedroom, the trio departed with G.K.L.'s cell phone and several bottles of wine. They then forced Berrios, at gunpoint, to direct them to his car (a Nissan Pathfinder). Once there, the appellant and Alamo perfected another carjacking (which became the subject of count four of the indictment). The carjackers did not release Morales and Berrios until they had made an unsuccessful attempt to empty Berrios's bank account.

Taking these facts into account, the district court, in an unpublished order, denied the motion to dismiss count three. In so ruling, the court rejected the appellant's contention that because G.K.L. was neither the owner of the carjacked vehicle nor physically present at the time of the carjacking, the rape could not be said to "result" from the carjacking offense. The court noted that in Vazquez-Rivera, we held that "injuries covered [by section 2119(2)] are not limited to those resulting from the `taking' of a vehicle, but also include those caused by the carjacker at any point during his or her retention of the vehicle." Id. at 178. In the district court's view, that principle applied because, at the time of the rape, the appellant was still in retention of the carjacked vehicle, he kept the keys in his pocket, he had a victim trapped in the car's trunk, and he held the car's owner under his command. Thus, the serious bodily injury endured by G.K.L. could be said to "result" from the carjacking, as required by the statute.

Following the denial of his motion to dismiss, the appellant reactivated his motion for a change of plea. After some skirmishing, not relevant here, the district court conducted a hearing on March 3, 2003. The change-of-plea colloquy was thorough. Significantly, the appellant admitted during that colloquy that he and Alamo had placed Berrios in the trunk of Morales's vehicle; that he had retained the keys to the car during his visit to G.K.L.'s abode; and that, while in possession of the keys and in control of Berrios and Morales, he raped G.K.L. Based on these admissions, the district court permitted the appellant to enter a plea of guilty to count three as well as to the other four counts of the indictment. The court also ordered the preparation of a presentence investigation report (PSI Report) and set the case for sentencing.

On June 16, 2003, the district court convened the disposition hearing. The court ascertained that defense counsel had discussed the PSI Report with the appellant and fully explained its contents to him. The appellant acknowledged that he understood what the report said. For all intents and purposes, the defense raised no objections to the PSI Report.¹ The court then stated that, in the absence of any material objections to the PSI Report, it would adopt the findings contained therein.

The court calculated a guideline sentencing range of 360 months to life (total offense level — 40; criminal history category — III). It sentenced the appellant to serve 600 months in prison, imposing consecutive 300-month terms for each of counts one and three, and concurrent 180-month terms for each of counts two, four, and five. Individually, each of these terms represented the statutory maximum for the offense of conviction. See 18 U.S.C. § 2119(2) (setting a twenty-five-year maximum for aggravated carjacking); id. § 2119(1) (setting a fifteen-year maximum for simple carjacking). The court also ordered a supervised release term of five years, a special assessment of $500, and restitution in the amount of $5,950. This timely appeal followed.

II. ANALYSIS

Gonzalez-Mercado seeks to challenge the validity of his guilty pleas, his conviction on count three, and his sentence. We consider each challenge in turn.

A. The Validity of the Guilty Pleas.

In supplemental briefing and a letter submitted pursuant to Fed. R.App. P. 28(j), the appellant maintains that his pleas as to all five counts must be set aside because they were not entered in conformity with Fed.R.Crim.P. 11. To elaborate, he insists that his pleas were not tendered intelligently because they were based upon a mistaken understanding of the operation of the federal sentencing guidelines. Although a guilty plea waives most claims of error, it does not preclude an attack on the voluntary and intelligent character of the plea itself. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

This claim derives from the Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Booker Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," id. at 756, insofar as the sentence is imposed under a mandatory guideline regime, see id. at 756-57, 767-68. The appellant posits that his guilty pleas are invalid because they were not informed by that holding (and, thus,...